Filed 12/10/13 P. v. Thomson CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                 Consolidated Case Nos.
         Plaintiff and Respondent,                                                F063932 & F063984

                   v.                                                        (Super. Ct. No. TF005584A)

CHRISTOPHER ROY THOMSON, et al.,
                                                                                         OPINION
         Defendants and Appellants.



         APPEAL from a judgment of the Superior Court of Kern County. John R.
Brownlee, Judge.
         James F. Johnson, under appointment by the Court of Appeal, for Defendant and
Appellant Christopher Roy Thomson.
         Rex Williams, under appointment by the Court of Appeal, for Defendant and
Appellant Dayna J. Blackwood.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and R. Todd
Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
       A jury convicted Christopher Roy Thomson of (1) felony possession of
methamphetamine for sale (Health & Saf. Code, § 11378; count 1),1 (2) felony
possession of a controlled substance, hydrocodone (§ 11350, subd. (a); count 2), and
(3) misdemeanor possession of drug paraphernalia (§ 11364; count 3). The jury
convicted Thomson’s co-defendant, Dayna J. Blackwood, of felony maintaining a place
for using or furnishing methamphetamine (§ 11366; count 4). Blackwood also was
charged and tried with Thomson on counts 2 and 3; the trial court, however, declared a
mistrial with respect to Blackwood on those counts after the jury was unable to reach
verdicts on them.
       In a bifurcated court trial, the trial court found true allegations that: (1) Thomson
and Blackwood each had suffered a prior serious or violent felony conviction (Pen. Code,
§§ 667, subds. (c)-(j) and 1170.12, subds. (a)-(e)); (2) Thomson had served two prior
prison terms (Pen. Code, §§ 667.5, subd. (b)); (3) Thomson had a prior narcotics
conviction (§ 11370.2, subd. (c)); and (4) Blackwood had served one prior prison term
(Pen. Code, § 667.5, subd. (b)).
       At the sentencing hearing, the trial court denied appellants’ motions to strike their
prior convictions. The trial court sentenced Thomson to an aggregate prison term of
12 years and four months, comprised of six years on count 1 (double the three-year upper
term), a consecutive 16 months on count 2, a consecutive two years for his prior prison
terms, and a consecutive three years for his narcotics prior. The trial court sentenced
Blackwood to an aggregate prison term of seven years, four months, comprised of six
years (double the three-year upper term) on count 4 and a consecutive 16 months, which
was resentencing on Blackwood’s prior case, No. TF005367A.



       1Undesignated statutory references are to the Health and Safety Code unless
otherwise noted.



                                              2.
       We consolidated Thomson’s and Blackwood’s separately filed appeals. Thomson
contends his judgment must be reversed because the trial court abused its discretion when
it (1) denied his motions to sever his case from Blackwood’s, (2) excluded evidence of
Blackwood’s probation status, and (3) allowed a prosecution witness to testify that the
incident began when police were conducting a lawful search. He also asks us to review
the sealed in camera hearing of his motion under Pitchess v. Superior Court (1974)
11 Cal.3d 531 (Pitchess). We reject Thomson’s contentions and affirm his judgment.
       Blackwood contends her judgment must be reversed because there is insufficient
evidence to support her conviction on count 4. She also argues (1) the criminal
laboratory analysis fee imposed was unauthorized, (2) the trial court erred when it did not
award custody credits for the sentence she was serving under case No. TF005367A, and
(3) she is entitled to additional custody credits under Penal Code section 4019. We agree
with Blackwood the evidence is insufficient to sustain the maintaining-a-place
conviction. Accordingly, we reverse her conviction.
                                         FACTS
       In March 2009, Autumn Arias was living in Taft in a home her sister owned.
Arias rented a bedroom in the home to Blackwood, who shared the bedroom with
Thomson. Thomson and Blackwood lived with Arias for about five months from January
to May 2009. Blackwood paid monthly rent for the room; Thomson did not pay rent.
Arias, who said she was home about 90 percent of the time, did not see a lot of people
coming in and out of Blackwood’s bedroom. While Blackwood had a few people come
over, Arias did not necessarily hear or see them because Blackwood’s bedroom door was
right by the front door. Most of the time, the visitors who did come seemed to be there to
see both Blackwood and Thomson.
       At about 10:25 p.m. on March 29, 2009, deputies with the Kern County Sheriff’s
Department came to the home to conduct a lawful search of a bedroom there. When
Deputy Robert Patrick knocked on the front door, Thomson answered it. The deputies

                                            3.
detained Thomson in the living room. Dawson DeCambra and his sister, Danelle, were
also present in the home. The deputies told Thomson they were there to conduct a search
and asked if Blackwood was home; Thomson said she was not there.
       The deputies searched the bedroom belonging to Blackwood and Thomson; this
was the only place in the house they searched. In the bedroom, they found a television
which was turned on and appeared to be showing a live picture of the front gate of the
house. The deputies later confirmed the picture was live and found a security camera
mounted on the front porch, which projected the image onto the television. On the
dresser in the bedroom, the deputies found: (1) three cans, one of which was identified as
a can of furniture polish and the others as air freshener cans, all of which had suspected
methamphetamine residue on their bottoms; (2) a working digital scale; and (3) a police
scanner, which was set to monitor Taft police and Kern sheriff channels.
       Under the bed, deputies found a potato chip can; the bottom of the can could be
unscrewed, revealing a hidden compartment. Inside that compartment, deputies found:
(1) three individually packaged bags of methamphetamine weighing 3.36, 4.41, and
.95 grams respectively; (2) a hypodermic needle; (3) additional baggies; and (4) seven
hydrocodone pills. Also under the bed were a bag of men’s clothes and a pair of men’s
shoes; the potato chip can was found between the bag and the shoes. The parties
stipulated the three baggies in the can contained usable amounts of methamphetamine
and the pills were a usable amount of hydrocodone.
       After searching the bedroom, Patrick went to the living room to speak with
Thomson. Patrick searched Thomson and found $760, mostly in $20 bills, in his left
pants pocket. Thomson claimed the money was from work. Patrick asked Thomson
about the men’s clothing in the bedroom; Thomson said all of the men’s clothing in the
room belonged to him. When Patrick asked Thomson if he lived in the room with
Blackwood, Thomson “basically said that I could say that he lived there because all of the
stuff that he owns is there.” Thomson said he stayed there three to five nights per week.

                                             4.
       The deputies found Blackwood and Alexzandra Sandoval in a car parked near the
house. Sandoval was arrested for being under the influence of methamphetamine. She
also possessed .32 grams of methamphetamine and carried a digital scale. Blackwood
was brought back to the home. Arias later saw Blackwood and Sandoval in the back of a
patrol car. Patrick had never seen Sandoval at Arias’ house before; he knew she lived
elsewhere. Arias had seen Sandoval at the house about 15 times, when she was visiting
Blackwood in her bedroom.
       Thomson initially denied any knowledge of the items found in the bedroom, but
later, at the Taft substation, he admitted to the deputies that he was a methamphetamine
user and everything in the potato chip can belonged to him. In his statement, Thomson
claimed that Blackwood did not know he had drugs in the house and she should be
released. Thomson made his admissions after being told Blackwood had been arrested.
After the deputies told Thomson that Blackwood would be released, Thomson asked if
there was any way Blackwood could get some of the money and volunteered the
following statement: “. . . all that money . . . is from I actually didn’t even get to make
any money off the goddam drugs, because I never had no time to sold them. You guys
showed up and took ‘em. Before I could even give the fucking shit.” A recording of the
substation interview was played for the jury.
       Patrick testified the methamphetamine residue on the bottom of the furniture
polish and air freshener cans showed someone was using methamphetamine by injecting
it. Patrick explained a user will put methamphetamine in the bottom of the can, cover it
with a piece of cotton, add water, dissolve the methamphetamine in the water, put the
needle in the cotton, and draw the methamphetamine and water mixture through the
cotton to filter it before injecting it in the user’s vein.
       Senior Sheriff’s Deputy Josh Nance opined that the methamphetamine found in
the potato chip can was possessed for sale based on the amount of methamphetamine
found, the digital scale, the scanner, the security camera, and, to a lesser extent, the cash

                                                5.
found in Thomson’s pants pocket. The way the methamphetamine was packaged in three
different bags, along with the presence of the eight other baggies, which most often are
used to package a drug for sale, contributed to his opinion. Nance explained that people
who traffic methamphetamine often use security cameras to see whether a person at the
door is law enforcement, a customer, or someone who might steal their stash or money.
Nance also explained that methamphetamine dealers use police scanners to help them
stay away from locations where officers are and to find out who might be an informant.
Nance came across digital scales often in methamphetamine sales investigations. Based
on the syringe’s location and surrounding circumstances, he recognized it as one that is
often used to inject methamphetamine.
       Defense Case2
       Danelle DeCambra testified that she attended a barbecue at the home on the
evening of March 29, 2009, with her brother Dawson; Thomson and Blackwood were
there. Sandoval also was present, but she stayed primarily in Blackwood’s room.
Sandoval and Blackwood left the home together about 20 minutes before the deputies
arrived. Dawson DeCambra testified he attended the barbecue. He claimed he opened
the front door when the deputies arrived. The deputies then detained Thomson.
Thomson’s mother, Katherine Jackson, testified that before March 29, 2009, Thomson
was living with her, although he sometimes stayed the night with Blackwood.
                                      DISCUSSION
   I. Thomson’s Appellate Issues
       Thomson raises three issues concerning pretrial rulings. He asserts the trial court
(1) erroneously excluded from evidence testimony that the search of the bedroom was
based on Blackwood’s probation search condition, thereby depriving him of his federal
constitutional right to present a complete defense, (2) abused its discretion in denying his
       2   Only Thomson presented witnesses in defense.



                                             6.
subsequent motion to sever his trial from Blackwood’s because he was precluded from
introducing this evidence in the joint trial; and (3) committed reversible error when it
allowed the prosecutor to introduce “propensity evidence” that the search “was a ‘lawful’
search.” Thomson also asks us to review the sealed in camera hearing of his motion
under Pitchess, supra, 11 Cal.3d 531.
   A. The Pretrial Rulings
       1. Pretrial Proceedings
       Before trial, a three count information was filed jointly charging Thomson and
Blackwood with possession of: (1) methamphetamine for purpose of sale,
(2) hydrocodone and (3) drug paraphernalia. Thereafter, the prosecution successfully
moved to consolidate this case with another in which Thomson was charged in three
counts with drug offenses stemming from his arrest on July 13, 2010. In an amended
consolidated information, the charges from the July 13, 2010 arrest were labeled counts 1
through 3, while the charges from the March 29, 2009 search were labeled counts 4
through 6. After the information was amended, Thomson’s motion to suppress the
evidence seized as a result of his July 13, 2010 arrest was granted, while his motion to
suppress evidence from the March 29, 2009 search was denied.
       At the pretrial hearing, the court granted the prosecutor’s motion to dismiss counts
1 through 3 for lack of evidence. The court ordered the information be further amended
to designate counts 4 through 6 as counts 1 through 3.
       Later in the pretrial hearing, Thomson’s trial counsel moved to introduce the court
record of Blackwood’s conviction upon which the probation search was conducted,
“which is drugs.” Blackwood’s trial counsel objected and suggested the question be
deferred until Blackwood’s in limine motions were presented, as one of her motions
concerned her criminal history. Blackwood’s counsel did not know whether the
conviction for which she was on probation had anything to do with the type of drugs or



                                             7.
paraphernalia found in the present case because he had not been given any discovery
regarding the evidence used against her there.3
       The trial court commented that, while many times a jury is told that officers
responded to a location to conduct a probation search, “[v]ery rarely do we get into why
you were there. Because so and so was on probation for X crime, is a back door way of
getting in information. A 352 problem obviously arises.” The court assumed Thomson’s
counsel wanted to get that information in to show that the police were really after
Blackwood and not his client because she was the one on probation. The court further
stated it implies to the jury that, because the person is on probation and had done
something in the past, “and we’ve gone to the house again to see if they’re still doing it,
and well, in fact, we did find narcotics in the house and she was on probation for it
before. Really does cause a lot of problems there.” The court told Thomson’s counsel it
was “inclined to deny your motion under 352 grounds[,]” primarily because of the effect
on Blackwood. The court added that it was “a backdoor way of 1101 evidence to show
that, in fact, she had done something in the past and she is doing it again here. [¶] So
I’m going to deny it under both grounds.”
       Thomson’s counsel then raised “5th, 6th and 14th Amendment objections on the
ground that [it] would deny my client a fair trial.” He also moved, based on the trial
court’s ruling, “for a separate trial with the co-defendant at this time.” The trial court
asked if he was making a motion to sever; Thomson’s counsel responded, “Sever, yes.”
His stated grounds for the motion were the 5th, 6th, and 14th Amendments of the federal
Constitution and due process, “and it would deny my client the right to present evidence
on his behalf of third party culpability.” Thomson’s counsel explained the evidence

       3 According to Blackwood’s written motions in limine, (1) she was convicted on
December 10, 2008 of violating section 11364, possession of drug paraphernalia, (2) at
the time of the search at issue in this case, she was on misdemeanor probation for that
case, and (3) her probation included search terms for narcotics and paraphernalia.



                                              8.
would go to “the different defenses that we have in this case,” and the exclusion of the
evidence “would prevent us from presenting that defense in our case.”
       When the court asked Thomson’s counsel if he had direct or circumstantial
evidence linking Blackwood to the crime, counsel responded, “Yes.” The court
responded: “. . . first of all, we’re talking about third party culpability, and she’s a co-
defendant. . . . [¶] . . . Number one. [¶] and the case you want, . . . is the seminal case in
California on third party culpability is People versus Hall [People v. Hall (1986)
41 Cal.3d 826 (Hall)], which states there must be direct or circumstantial evidence
linking the third person to the actual perpetration of the crime. [¶] Evidence of mere
motive or an opportunity to commit the crime in another person will not suffice to raise a
reasonable doubt. [¶] So I don’t – I don’t see it there. . . . [¶] . . . You know, once the
trial starts, if you want to point the finger at Blackwood, and say that Blackwood was in
possession of the narcotics and whatever paraphernalia is found with it, you’re certainly
entitled to do so, but I don’t think at this point you’re entitled to a motion to sever
because you feel that she did it.”
       The prosecutor opposed the motion to sever, arguing severance was unnecessary
as trial of the charges involved the same evidence and witnesses, none of the evidence
against Thomson would be ruled inadmissible against Blackwood and vica versa, and
they would not be running into “Aranda/Bruton issues.” After Blackwood’s counsel
declined the court’s invitation to respond further, the court denied the motion to sever “on
those grounds.” Thomson’s counsel then stated he was bringing “a 352 objection to that
motion,” which the court promptly denied.
       The court thereafter ruled on Blackwood’s in limine motions. In one of those
motions, Blackwood moved to exclude her convictions for misdemeanor paraphernalia,
“a felony 11377 from two years ago[,]” and her probation status, which her counsel
argued was irrelevant and “simply serves as character evidence.” Counsel explained the
offense for which she was on probation was a violation of “Health and Safety Code

                                               9.
Section 113550 [sic], a misdemeanor[,]” and since the controlled substance she was
convicted of being under the influence of was not identified, the conviction was irrelevant
to prove any fact in dispute in this case.
       The prosecutor responded that the listed priors would not come up, but “the fact
that this was a probation search” could come up if the defense argues or tries to elicit
testimony that the bedroom searched was not Blackwood’s bedroom. The prosecutor
explained that the deputies had “searched this particular bedroom several different times,
and I would show that deputies do know that bedroom that was searched in this case is
the same bedroom that Miss Blackwood had on prior occasions to show ownership,
control, and possession of the items found within it.” The prosecutor confirmed the
deputies were at the house on previous probation searches, during which they searched
the same bedroom.
       The court proposed that the prosecutor elicit testimony that the deputies responded
to the house on March 29, 2009 “for the purpose of a probation search and what
happened on that particular date.” Blackwood’s counsel objected, stating the evidence
was irrelevant because Blackwood was not disputing that she resided in the bedroom.
Thomson’s counsel also objected, stating that if the only testimony was that it was a
probation search, the jury would infer Thomson was the one on probation and he would
be denied “part of our defense that the search was conducted because of the co-
defendant’s probation status.” Thomson’s counsel raised a “352 objection as to that
framing of the testimony[,] it would be highly prejudicial to our case. [¶] So that would
be another reason to sever the defendants in this particular trial.”
       The court asked, “So you’re saying that the fact that your client was at a home
that was being searched for a probation search and he’s found in the home where
narcotics are, the fact that the jury will hear that he was at the house of a probation search
is prejudicial to him?” Thomson’s counsel answered, “Yes. It would infer and be
confusing and misleading that he was the one that was on probation, because he’s the

                                             10.
one, allegedly, that answered the door.” Blackwood’s counsel stated he thought they
were not going to get into the fact it was a probation search since Blackwood was not
contesting that it was her room. The court responded that the word “probation” could be
removed and the officer could simply be asked whether he was there to conduct a “lawful
search” on that date and time, thereby “missing the whole problem.” The court further
explained that it normally would not propose this, but since Thomson’s counsel felt it
would prejudice his client, “we’ll just simply state on this date and time did you respond
to this residence . . . for the purposes of conducting a lawful search.”
       While Blackwood’s counsel and the prosecutor agreed with that solution,
Thomson’s counsel stated he wanted the court to rule they were there to conduct a
probation search based on Blackwood’s probation status. The court understood that, but
said it was not going to let Thomson have his “cake and eat it too.” Accordingly, the
court ruled the officer could testify they were there to conduct a “legal search of the
residence,” and if either counsel wanted to challenge the legality of the search, then the
jury would hear it was a probation search.
       Blackwood’s counsel then proposed the jury simply be instructed to assume any
evidence the officers obtained and presented to the court was done legally, which would
render the “entire moot point.” Thomson’s counsel did not think that would be proper.
While he did not intend to ask the officers if the search was legal, he wanted to challenge
their credibility as to the search and using the word “legal” would infer all of the officers’
conduct was proper. The court responded that it might reverse its ruling and allow the
officers to say it was a “valid probation search.” The court told Thomson’s counsel he
would not be allowed to ask the officers if it was Thomson who was on probation,
“[b]ecause that makes it sound like they’re after one person or another.” The court
further stated counsel could not “have it both ways. If you ask the officers who was on
probation and who wasn’t, that’s allowing to get in character evidence towards
[Blackwood], and we’ve gone over there. . . . [¶] . . . so the jury will probably make an

                                             11.
inference that both of you were on probation. [¶] If you want to say that they were there
to conduct a legally valid search, we avoid all of these problems.”
       Thomson’s counsel responded that it was only a problem for Thomson if he could
not have testimony that Thomson was not the subject of the search, which prevents
Thomson from having a fair trial. The court asked if he wanted the jury to hear it was a
probation search. Counsel responded he did, but he also wanted the jury to know the
search was not due to Thomson’s probation status, which was part of his defense. The
court asked how they would then get around the fact that would “point the finger” at
Blackwood. Counsel responded that you could not, which was “part of our severance
motion” in regard to the inability to present Thomson’s defense. The court asked if it
could get around a severance motion by telling the jury police were there to conduct a
legal search of the residence. Counsel did not think that gave the jury the “necessary
information” regarding Thomson’s status during the search.
        Blackwood’s counsel thought Thomson’s counsel was trying to introduce
irrelevant evidence of the officers’ state of mind before the search by turning the motive
for searching the residence into substantive evidence to shift the focus onto Blackwood
and vindicate Thomson. Blackwood’s counsel further pointed out that, to the extent
Thomson’s counsel wanted to challenge the legality of the search to damage the officers’
credibility, the court already had determined the search was proper during the litigation of
the suppression motion. He further pointed out that Thomson’s counsel essentially was
“trying to backdoor character evidence based on this irrelevant intent of the officers at the
time of the search[,]” namely that they conducted the search because they believed or
suspected Blackwood was guilty of something, which ran afoul of Thomson’s motion in
limine, which the court granted, to preclude evidence of the officers’ beliefs.
       The court then stated its “final ruling on this is that the prosecution will present the
following evidence: Asking the officers on this date and time at this location were you
there to conduct a lawful search of the residence. Period.”

                                             12.
       At the outset of the court session the following day, Blackwood’s counsel
informed the court that he and the prosecutor had agreed to a proposed amended
information which would remove Blackwood from count 1 and leave Thomson as the
only defendant on that count, and add count 4 against Blackwood only for violating
section 11366. The prosecutor stated the amendments would best reflect the evidence
that would be presented at trial.
       Thomson’s counsel objected, asserting the amendment affected Thomson’s due
process and fair trial rights, and violated his rights under the 5th, 6th and 14th
Amendments of the federal Constitution. Counsel explained he believed the prosecutor
wanted to dismiss count 1 against Blackwood and proceed only against Thomson based
on the tape. Counsel believed the amendment unduly implied Thomson was guilty of
possession for sale and Blackwood is not, and if it were granted, he would move to
continue the trial.
       The prosecutor responded that the “finger’s always been pointed” at Thomson and,
based on all the evidence, section 11366 was one of the most appropriate charges that
should have been brought against Blackwood, but was somehow overlooked. The
prosecutor did not think the charge would affect Thomson in any way, as the same
evidence would be presented against him. The prosecutor thought it would be tough to
prove the 11378 against Blackwood, noting it was a much stronger count against
Thomson.
         Thomson’s counsel thought the amendment razed Thomson’s third party
culpability defense, namely that Blackwood was responsible for the possession of the
drugs for sale, changed “the dynamics of our defense” and required a continuance to
prepare for the changed counts against Blackwood and the way he was going to present
Thomson’s case. Blackwood’s counsel responded that Blackwood’s dismissal from
count 1 did not preclude Thomson from pointing the finger at Blackwood and any



                                             13.
prejudice to Thomson by being the sole defendant on count 1 was cured by the jury
instructions.
       Thomson’s counsel renewed the motion to sever Blackwood in this case “because
there’s different charges now as to her and they are not part of our charge.” The court
denied the motion. Thomson’s counsel also argued he should now be able to present the
fact that Blackwood was on probation and the search was conducted based on a probation
search due to the charge of “maintaining a place.” He asked the court to revisit the issue
and allow the evidence. When the court asked how the amendment changed the
probation search issue, Thomson’s counsel answered that it involved the residence and
the search was based on Blackwood’s probation, therefore the probation search was tied
“more closely to the facts of the case and the evidence that the jury should hear.” The
court denied the motion. The court then granted the motion to amend, finding no
prejudice to Thomson because the prosecution would be putting on the same evidence
“either way.”
       2. Denial of Motion to Admit Evidence of Probation Search
       Thomson contends the trial court erred when it denied his motion in limine to
admit evidence that the search was a probation search conducted based on Blackwood’s
probation search condition. The trial court denied the motion on the grounds that the
evidence was inadmissible character evidence under Evidence Code section 1101 and
violated Evidence Code section 352. On appeal Thomson challenges only one of these
grounds, asserting the trial court improperly exercised its discretion to exclude the
evidence under Evidence Code section 352. He asserts the trial court refused to admit the
evidence of Blackwood’s probation status, not on the grounds it lacked probative value,
but because it was so prejudicial to Blackwood. He contends the exclusion of the
evidence denied him a fair trial and due process under the Fifth, Sixth and Fourteenth
Amendments.



                                            14.
       We review a trial court’s ruling excluding evidence under an abuse of discretion
standard. (People v. Fuiava (2012) 53 Cal.4th 622, 667.) Moreover, in reviewing a
judgment against a criminal defendant, “‘[w]e must indulge in every presumption to
uphold a judgment, and it is defendant’s burden on appeal to affirmatively demonstrate
error—it will not be presumed.’” (People v. Tang (1997) 54 Cal.App.4th 669, 677.)
       Here, Blackwood’s probation status and criminal history clearly were inadmissible
character evidence under Evidence Code section 1101. As Thomson admits, he wanted
to use the evidence to show that it was Blackwood, not he, who possessed the drugs. A
criminal defendant has the right to present evidence of third-party culpability if the
evidence is capable of raising a reasonable doubt about his or her own guilt. (People v.
Bradford (1997) 15 Cal.4th 1229, 1325.) However, as our Supreme Court has explained,
the admission of third-party culpability evidence remains subject to the general
requirement of relevance and the trial court’s discretion to exclude unduly prejudicial or
confusing evidence: “‘We repeatedly have indicated that, to be admissible, evidence of
the culpability of a third party offered by a defendant to demonstrate that a reasonable
doubt exists concerning his or her guilt, must link the third person either directly or
circumstantially to the actual perpetration of the crime. In assessing an offer of proof
relating to such evidence, the court must decide whether the evidence could raise a
reasonable doubt as to defendant’s guilt and whether it is substantially more prejudicial
than probative under Evidence Code section 352. [Citations.]’ [¶] In People v. Hall
(1986) 41 Cal.3d 826, we held that ‘the third-party evidence need not show “substantial
proof of a probability” that the third person committed the act; it need only be capable of
raising a reasonable doubt of defendant’s guilt.’ (Id. at p. 833.) ‘Our holding [in Hall]
did not, however, require the indiscriminate admission of any evidence offered to prove
third-party culpability. The evidence must meet minimum standards of relevance:
“evidence of mere motive or opportunity to commit the crime in another person, without
more, will not suffice to raise a reasonable doubt about a defendant’s guilt: there must be

                                             15.
direct or circumstantial evidence linking the third person to the actual perpetration of the
crime.” [Citation.] We also reaffirmed that such evidence is subject to exclusion under
Evidence Code section 352.’” (People v. McWhorter (2009) 47 Cal.4th 318, 367-368.)
       Evidence of prior criminal conduct offered to show merely that a third party was
more likely to be the perpetrator of the current crimes is generally inadmissible. (Evid.
Code, § 1101, subd. (a); People v. Davis (1995) 10 Cal.4th 463, 501 (Davis); People v.
Farmer (1989) 47 Cal.3d 888, 921 (Farmer), overruled on another ground in People v.
Waidla (2000) 22 Cal.4th 690, 724, fn. 6.) An exception is where prior conduct evidence
is “relevant to prove some fact (such as motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake or accident . . . . ) other than [the actor’s]
disposition to commit such an act.” (Evid. Code, § 1101, subd. (b).) These rules apply to
evidence raising the inference of third party culpability. (Davis, supra, 10 Cal.4th at
pp. 500-501; Farmer, supra, 47 Cal.3d at p. 921.) Evidence linking a third person to the
perpetration of the crime should be treated like any other evidence; but if the proffered
evidence does not show a fact other than the third party’s criminal disposition, it is
properly excluded pursuant to Evidence Code section 1101. (Farmer, supra, 47 Cal.3d at
p. 921; see Davis, supra, 10 Cal.4th at p. 501 [evidence offered to show a third party was
more likely the perpetrator of the charged murder because he had a history of violence
was properly excluded under Evidence Code section 1101, subdivision (a), because it was
not offered to show a fact other than the third party’s criminal disposition].)
       Thomson asserts he was not attempting to use the evidence to show third party
culpability based on Blackwood’s disposition to commit the possession crimes. Instead,
he contends Blackwood’s probation status linked her to the drugs seized in her bedroom,
and was evidence relating her “ongoing criminal activity of dealing drugs[,] and storing
those drugs in her bedroom.” He claims Blackwood’s probation status, coupled with
evidence that the deputies had searched her room other times pursuant to the probation



                                             16.
search condition, shows the deputies searched her bedroom because they believed she
was engaged in ongoing criminal activity.
       Although Thomson characterizes the evidence as relating to something other than
Blackwood’s disposition to commit the crime, in reality he is attempting to portray
Blackwood as the one who possessed the drugs based on her prior drug-related
convictions and probation search condition, i.e. based on her disposition to commit such
crimes. Thomson admits he intended to use the evidence to show that Blackwood “more
likely than [Thomson] possessed the seized drugs for sale.” But this is precisely the use
that is forbidden by Evidence Code section 1101, as “[s]uch evidence does not amount to
direct or circumstantial evidence linking the third person to the actual perpetration of the
crime.” (Davis, supra, 10 Cal.4th at p. 501.) As in Davis, “the proposed evidence did
not relate to motive and intent but was essentially an attempt to show that [Blackwood]
was more likely to have been the [one who possessed the methamphetamine for sale]
because [she] had a history of [drug related offenses].” (Ibid.) The evidence therefore
was properly excluded under Evidence Code section 1101 without regard to Evidence
Code section 352. Even if, as Thomson claims, the court erred in its Evidence Code
section 352 analysis, there was no abuse of discretion in excluding the evidence under
Evidence Code section 1101.
       Thomson’s contention that the exclusion of the evidence violated his federal
constitutional right to present a complete defense is unpersuasive. Although “[f]ew rights
are more fundamental than that of an accused to present witnesses in his own defense”
(Chambers v. Mississippi (1973) 410 U.S. 284, 302), evidence proffered to show third-
party culpability “‘may be excluded where it does not sufficiently connect the other
person to the crime, as, for example, where the evidence is speculative or remote, or does
not tend to prove or disprove a material fact in issue at the defendant’s trial.’” (Holmes v.
South Carolina (2006) 547 U.S. 319, 327; see also People v. Prince (2007) 40 Cal.4th
1179, 1243 (Prince) [“‘[W]e . . . reject defendant’s various claims that the trial court’s

                                             17.
exclusion of the proffered [third-party culpability] evidence [under Evid. Code, §§ 350,
352] violated his federal constitutional rights to present a defense . . . There was no error
under state law, and we have long observed that, “[a]s a general matter, the ordinary rules
of evidence do not impermissibly infringe on the accused’s [state or federal
constitutional] right to present a defense.”’”])
       3. Testimony on the Legality of the Search
       Thomson contends the trial court erred when it allowed the prosecutor to elicit
confirmation from Deputy Patrick that he and the other deputies were “there to conduct a
lawful search of a bedroom in that residence[.]” He argues the admitted evidence
violated Evidence Code section 1101, subdivision (a), and his rights to due process and a
fair trial because the jury might speculate the officers searched the bedroom because of
past criminal conduct on his part.
       The Attorney General asserts the claim is forfeited because Thomson failed to
object below on Evidence Code section 1101 grounds. (People v. Raley (1992) 2 Cal.4th
870, 892 [generally, “‘questions relating to the admissibility of evidence will not be
reviewed on appeal in the absence of a specific and timely objection in the trial court on
the ground sought to be urged on appeal.’”].) Thomson contends he objected on this
ground when his counsel argued that telling the jury the search was legally valid would
prevent him from receiving a fair trial because the fact was he was not on probation and
the probation search was on Blackwood’s “behalf[,]” and the jury had “a right to know
that it was not my client’s probation status that the search was conducted.” However, this
was not a specific enough objection to place the trial court on notice that he was objecting
on Evidence Code section 1101 grounds. (See, e.g., People v. Valdez (2012) 55 Cal.4th
82, 130.)
       In any event, Thomson fails to show that Evidence Code section 1101 is
applicable or any error occurred. Evidence Code section 1101, subdivision (a) provides
that “evidence of a person’s character or a trait of his or her character (whether in the

                                             18.
form of an opinion, evidence of reputation, or evidence of specific instances of his or her
conduct) is inadmissible when offered to prove his or her conduct on a specified
occasion.” Thomson contends permitting the prosecutor to tell the jury the search was
lawful constituted evidence of his character because it “permitted the jury to speculate on
what past crimes [Thomson] might have committed that would permit the police to
lawfully search the residence while he alone was present.”
       We fail to see how telling the jury the search was lawful raises an inference that
Thomson had a criminal history. No evidence was presented from which the jury could
infer the reason for the search or what made it lawful; neither was there evidence from
which the jury could infer Thomson had a criminal history. As the Attorney General
points out, there are other reasons for a lawful search unrelated to a defendant’s criminal
history and his assertion that the jury would draw the inference he suggests is entirely
speculative.
       Thomson contends telling the jury a search is lawful is akin to telling the jury of a
defendant’s past arrests, which generally is inadmissible because it suggests the
defendant has a bad character. (See, e.g. People v. Williams (2009) 170 Cal.App.4th 587,
609-610.) However, a juror is more likely to infer wrongdoing from an arrest than a
search, as a search is permissible under a variety of circumstances that do not involve an
inference of wrongdoing. Telling a jury a search was lawful also is not like profile
evidence (see, e.g., People v. Martinez (1992) 10 Cal.App.4th 1001, 1006-1007), because
it tells nothing of law enforcement’s investigative techniques.
       Moreover, the jury instructions precluded any speculation about past crimes by
Thomson, as the jury was told to decide the facts based solely upon the evidence
presented in this trial. Since the claim is forfeited and patently meritless, Thomson
cannot show any infringement of his due process or fair trial rights. (People v. Gurule
(2002) 28 Cal.4th 557, 652; see also People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17.)



                                            19.
       4. Denial of Thomson’s Severance Motion
       Penal Code section 1098, which creates a statutory presumption in favor of joint
trials for jointly charged defendants, provides that “[w]hen two or more defendants are
jointly charged with any public offense, whether felony or misdemeanor, they must be
tried jointly, unless the court order[s] separate trials . . . in its discretion. . . . ”
       “A ‘classic case’ for joint trial is presented when defendants are charged with
common crimes involving common events and victims.” (People v. Keenan (1988)
46 Cal.3d 478, 499-500.) Under Penal Code section 1098, “a trial court must order a
joint trial as the ‘rule’ and may order separate trials only as an ‘exception.’ (5 Witkin &
Epstein, Cal. Criminal Law (2d ed. 1989) Trial, § 2158, p. 3021.)” (People v. Alvarez
(1996) 14 Cal.4th 155, 190.)
       A trial court’s ruling on a severance motion is reviewed for abuse of discretion. In
exercising its discretion, the court should separate the trial of codefendants “in the face of
an incriminating confession, prejudicial association with codefendants, likely confusion
resulting from evidence on multiple counts, conflicting defenses, or the possibility that at
a separate trial a codefendant would give exonerating testimony.” (People v. Mossie
(1967) 66 Cal.2d 899, 917, fns. omitted; see also Zafiro v. United States (1993) 506 U.S.
534, 538-539 (Zafiro); United States v. Heuer (9th Cir. 1993) 4 F.3d 723, 733.)
“Although what transpires at trial determines the prejudicial effect of an erroneous ruling
on a motion for separate trials, ‘[w]hether denial of a motion to sever the trial of a
defendant from that of a codefendant constitutes an abuse of discretion must be decided
on the facts as they appear at the time of the hearing on the motion rather than on what
subsequently develops.’” (People v. Turner (1984) 37 Cal.3d 302, 312, overruled on
other grounds in People v. Anderson (1987) 43 Cal.3d 1104, 1115; see also People v. Box
(2000) 23 Cal.4th 1153, 1195, disapproved on another point in People v. Martinez (2010)
47 Cal.4th 911, 948, fn. 10.) Thomson has the burden of showing that the court’s refusal



                                                 20.
to sever constitutes an abuse of discretion. (People v. Wickliffe (1986) 183 Cal.App.3d
37, 42.)
       Thomson made two motions to sever during the pretrial hearing. The first, made
while he and Blackwood were charged with the same three crimes, was based on the
ground that separate trials were necessary to balance Thomson’s right to present a
defense with Blackwood’s right not to have prejudicial evidence of her criminal conduct
and probation status admitted. The second motion, made after the prosecutor and
Blackwood’s counsel proposed an amended information that would leave Thomson the
sole defendant in count 1 and charge Blackwood solely with a new count 4, was based on
the fact of these amendments.
       On appeal, Thomson attempts to challenge both rulings, but does not discuss them
separately. Instead, he makes blanket assertions that the trial court abused its discretion
when it denied his motions for severance because (1) the evidence of Blackwood’s
probation status would have been admissible in a separate trial as evidence of third party
culpability, (2) the evidence against him was weak, (3) he and Blackwood had mutually
antagonistic defenses, as his defense depended on using Blackwood’s probation status to
show it was more likely that Blackwood possessed the methamphetamine for sale,
(4) Blackwood’s probation status was exonerating evidence, and (5) telling the jury the
search was lawful created a prejudicial association with Blackwood.
       We find no abuse of discretion. The centerpiece of Thomson’s arguments is his
assertion that Blackwood’s probation status, and the reason for it, would have been
admissible in a separate trial. Thomson is wrong, as the granting of separate trials could
not have allowed him to introduce otherwise inadmissible evidence of Blackwood’s bad
character. “Nothing on the face of [section 1101] limits its application to evidence
concerning a defendant. A ‘person’ under the provision is any person, whether or not a
defendant. If the Legislature intended the statute to apply only to evidence of ‘other
crimes’ by a defendant, it could have so provided.” (Davis, supra, 10 Cal.4th at p. 501.)

                                             21.
As we have already explained, evidence linking a third person to the perpetration of the
crime should be treated like any other evidence; if the proffered evidence does not show a
fact other than the third party’s criminal disposition, it is properly excluded pursuant to
section 1101. (Farmer, supra, 47 Cal.3d at p. 921.)
       Thomson asserts that in a separate trial, he would have used the evidence of
Blackwood’s prior convictions and probation status to “show that someone other than
[Thomson] was guilty of possession for sale of the bedroom-seized drugs.” But this is
precisely the use that is forbidden by section 1101.
       Thomson fails to show on appeal that the trial court abused its discretion in
denying the motions for severance. Citing to principles generally applicable to joinder of
offenses under Penal Code section 954, he argues the evidence was “cross-admissible[,]”
i.e. would have been admissible in a separate trial, and the case against him weak. 4 But
the evidence would not be admissible in a separate trial, as he contends. Moreover, a
weak case was not joined to a strong one, as none of the charges was more egregious than
any other and therefore none were “‘unusually likely to inflame the jury against
[Thomson].’” (People v. Manriquez (2005) 37 Cal.4th 547, 575-576.) Further,
Thomson’s case was the stronger of the two, as he confessed to possessing the drugs and
admitted he intended to sell them.
       Thomson claims he and Blackwood had mutually antagonistic defenses that
required severance because he “was denied admission of the exculpating evidence of the


       4 Under Penal Code section 954, a trial court may consolidate charges for trial in
certain circumstances. Refusal to sever charges on a defendant’s motion may be an abuse
of discretion where “‘(1) evidence on the crimes to be jointly tried would not be cross-
admissible in separate trials; (2) certain of the charges are unusually likely to inflame the
jury against the defendant; (3) a “weak” case has been joined with a “strong” case, or
with another “weak” case, so that the “spillover” effect of aggregate evidence on several
charges might well alter the outcome of some or all; and (4) any one of the charges
carries the death penalty.’” (Davis, supra, 10 Cal.4th at pp. 507-508.)



                                             22.
probation search which showed that [Blackwood] had been convicted for drug offenses,
and was under a probation search condition[,] . . . [which] would show it to be more
likely it was [Blackwood] and not [Thomson] who possessed the seized drugs for sale.”
But, as we have explained, that evidence would have been inadmissible both in this trial
and in a separate trial.
       Thomson also asserts the defenses were antagonistic because he and Blackwood
could only deny each possessed drugs by pointing the finger at the other. However,
“‘antagonistic defenses do not per se require severance, even if the defendants are hostile
or attempt to case the blame on each other.’” (People v. Hardy (1992) 2 Cal.4th 86, 168;
Box, supra, 23 Cal.4th at pp. 1196-1197 [severance not required merely because it is
anticipated defendants will attempt to shift responsibility to each other].) As the United
States Supreme Court has held, mutually antagonistic defenses are not prejudicial per se
and Federal Rules of Criminal Procedure, rule 14 does not require severance even if
prejudice is shown. (Zafiro, supra, 506 U.S. at pp. 538-539.) Instead, a federal trial
court “should grant a severance under Rule 14 only if there is a serious risk that a joint
trial could compromise a specific trial right of one of the defendants, or prevent the jury
from making a reliable judgment about guilt or innocence.” (Zafiro, supra, 506 U.S. at
pp. 538-539.)
       When the severance motions were made, Thomson’s counsel did not explain why
his defense was antagonistic to Blackwood’s, other than arguing he should be able to
present evidence of Blackwood’s probation status and pointing out the different charges
leveled against them. Since the evidence was inadmissible, however, antagonism is not
shown by its preclusion; the evidence also does not constitute exonerating testimony, as
Thomson claims. Severance also was not required merely because Thomson and
Blackwood were charged with different crimes, since they were charged jointly on two of
them and the counts on which they were charged separately stemmed from the evidence
found during the same search. Where two defendants are charged jointly on at least one

                                             23.
count, the fact that defendants are charged separately on other counts “‘does not render
the joinder improper or deprive the court of discretion to deny a motion for severance
since there is a joint charge as to one of the crimes and a common element of substantial
importance in the commission of all of them.’” (People v. Pike (1962) 58 Cal.2d 70, 84-
85.)
       Thomson contends permitting testimony that the search was lawful created
antagonistic defenses because it prejudicially associated him with Blackwood. We have
already explained that merely telling the jury the search was lawful did not lead to the
inference that the officers were there because of some wrongdoing on Thomson’s part.
Similarly, it did not lead to the inference the officers were there due to Blackwood’s
criminal history. Thomson’s claim that the exclusion of the probation search evidence
allowed the jury to find him guilty based on his association with Blackwood fails, as the
evidence was not improperly excluded. There was no danger that the jury would convict
Thomson based on his relationship with Blackwood rather than on the evidence
separately implicating Thomson. (People v. Letner (2010) 50 Cal.4th 99, 152 [“A
prejudicial association justifying severance will involve circumstances in which the
evidence regarding one defendant might make it likely the jury would convict that
defendant of the charges and, further, more likely find a codefendant guilty based upon
the relationship between the two rather than upon the evidence separately implicating the
codefendant.”).]
       Finally, antagonistic defenses do not compel severance where there exists
sufficient independent evidence against the moving defendant. (People v. Avila (2006)
38 Cal.4th 491, 575-576.) Here, the prosecution presented ample independent evidence
of Thomson’s guilt, which showed that he shared with Blackwood the bedroom where the
methamphetamine was found under the bed near a bag of his clothes and shoes, he had
wad of $20 bills in his pocket, and he confessed to police that the drugs were his and he
had intended to sell them.

                                            24.
       In sum, there was no abuse of discretion in denial of the severance motions.
       When a trial court’s denial of a severance motion was proper when made, “‘we
may reverse a judgment only on a showing that joinder “‘resulted in “gross unfairness”
amounting to a denial of due process.’”’” (People v. Souza (2012) 54 Cal.4th 90, 109.)
In making this determination, we look to the evidence actually introduced at trial.
(People v. Bean (1988) 46 Cal.3d 919, 940.)
       Thomson contends he was deprived of a fair trial because the trial court
erroneously refused to permit him to introduce evidence of Blackwood’s probation status
and prior criminal conduct as substantive evidence of Blackwood’s guilt. But as we have
already explained, the evidence was inadmissible in this trial. The evidence properly
presented against Thomson showed he possessed the methamphetamine found in the
potato chip can under the bed for the purposes of sale, as well as the hydrocodone and
syringe, as the can was found in the bedroom he shared with Blackwood near his clothes
and shoes, he had a wad of $20 bills in his pocket, and he confessed to the deputies that
drugs and syringe in the can were his and he intended to sell the drugs.
   B. The Pitchess Hearing
       Before trial, Thomson moved for discovery of the personnel records of Kern
County Sheriff Deputies Patrick and Nance under the authority of section 1043 and
Pitchess. Thomson sought to determine if anyone had filed complaints against the
deputies relating to, inter alia, dishonesty and false police reports. The People filed a
written response to the motion in which it conceded Thomson had established good cause
for a limited review of Patrick’s personnel files for complaints of dishonesty, but argued
Thomson had not shown good cause to review Nance’s personnel files.
       At the hearing on the motion, the trial court found there was a sufficient showing
to review Patrick’s file in an in camera Pitchess hearing with respect to evidence of
dishonesty “related to false report writing in that nature.” The court denied the motion
with respect to Nance. Brad Brandon, the designated representative of the custodian of

                                             25.
records, appeared at the in camera hearing and brought Patrick’s full and complete
personnel file. The judge reviewed the file and, at the conclusion of the in camera, stated
there was nothing to release to the defense and directed that the reporter’s transcript of
the in camera review hearing be sealed.
       Thomson asks us to conduct an independent review of the documents the trial
court examined in response to his Pitchess motion. By order dated August 15, 2012, we
directed the superior court to augment the record relevant to the Pitchess motion. We
further directed the superior court, in the event it did not keep copies of the files
reviewed, to conduct further proceedings to prepare a settled statement and submit the
statement, along with the files and hearing transcripts to this court under seal. The
superior court subsequently filed with this court the sealed reporter’s transcript of the
Pitchess hearing, a sealed manila envelope containing the applicable file, and a settled
statement.
       The statutory scheme for Pitchess motions is contained in sections 1043 through
1047 and sections 832.5, 832.7 and 832.8. When a defendant seeks discovery from a
peace officer’s personnel records, he or she must file a written motion that satisfies
certain prerequisites and makes a preliminary showing of good cause. If the trial court
determines that good cause has been established, the custodian of records brings to court
all documents that are “‘potentially relevant’ to the defendant’s motion.” (People v.
Mooc (2001) 26 Cal.4th 1216, 1226.) The trial court examines these documents in
camera and, subject to certain limitations, discloses to the defendant “‘such information
[that] is relevant to the subject matter involved in the pending litigation.’” (Ibid.) The
ruling on a Pitchess motion is reviewed for an abuse of discretion. (People v. Hughes
(2002) 27 Cal.4th 287, 330 (Hughes).)
       Having independently reviewed the transcript of the Pitchess proceeding and the
records examined by the trial court and submitted under seal, we conclude that the trial
court did not abuse its discretion in determining that none of the records were relevant to

                                              26.
the issues presented in this case. Accordingly, we uphold the ruling on the Pitchess
motion. (Prince, supra, 40 Cal.4th at p. 1286; Hughes, supra, 27 Cal.4th at p. 330.)
   II. Blackwood’s Appellate Issues
       Blackwood contends insufficient evidence was presented at trial to prove the
elements of section 11366, maintaining a place for the purpose of unlawfully selling,
giving away, or using controlled substances. “‘When considering a challenge to the
sufficiency of the evidence to support a conviction, we review the entire record in the
light most favorable to the judgment to determine whether it contains substantial
evidence—that is, evidence that is reasonable, credible, and of solid value—from which a
reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’”
(People v. D’Arcy (2010) 48 Cal.4th 257, 293.)
       The elements of the maintaining-a-place offense are that the defendant (a) opened
or maintained a place (b) with a purpose of continuously or repeatedly using it for selling,
giving away, or using a controlled substance. (People v. Hawkins (2004) 124
Cal.App.4th 675, 680 (Hawkins); People v. Horn (1960) 187 Cal.App.2d 68, 73 (Horn);
People v. Holland (1958) 158 Cal.App.2d 583, 588-589 (Holland).) Evidence of a single
instance of drug use or sales at the place, without circumstances supporting a reasonable
inference that the place was used for the prohibited purposes continuously or repetitively,
does not suffice to sustain a conviction. (Hawkins, supra, at p. 682; People v. Shoals
(1992) 8 Cal.App.4th 475, 491-492 (Shoals); Horn, supra, at pp. 73-74; Holland, supra,
at pp. 588-589.)
       Blackwood asserts there is no evidence she “even knew of co-defendant
Thomson’s possession of the methamphetamine hidden in the [potato chip] can with the
intent to sell it.” She further argues “the evidence utterly fails to establish any continuous
or repetitive sales or use activity in the house or room in question.” She explains that
while there is “no question Thomson stashed and packaged illegal drugs in the house with
the intent to sell them, the evidence fails to show [Thomson] or [Blackwood] sold or

                                             27.
intended to sell narcotics at that location for the few months they lived there.”
Consequently, Blackwood argues, the judgment must be reversed.
       The Attorney General contends sufficient evidence supported Blackwood’s
conviction, as the jury reasonably could infer: (1) Blackwood maintained a place for the
continued use of methamphetamine based on the air freshener cans with
methamphetamine residue on them and Thomson’s admission that he was a
methamphetamine user; (2) Blackwood maintained the bedroom with knowledge of the
sales activities occurring there based on the overt indicia of drug sales present in the
room, namely the television that showed the home’s front gate, the digital scale and the
police scanner; and (3) Sandoval either used methamphetamine in the bedroom, or
bought or sold methamphetamine there, as on the night of the search, she was in the
bedroom with Blackwood, deputies later found Sandoval with Blackwood nearby, and at
that time Sandoval carried a digital scale and both possessed and was under the influence
of methamphetamine.
       We agree with Blackwood. The statute can be violated by maintaining a place for
either the sale of a controlled substance or its use, e.g. by providing a place for drug
abusers to gather and share their experience. (People v. Vera (1999) 69 Cal.App.4th
1100, 1102 (Vera).) While there was evidence the bedroom was being used to package
methamphetamine for sale, there was no evidence that sales were taking place from the
bedroom. The presence of the digital scale showed that it had been used for dividing and
measuring drugs for packaging, while the camera and police scanner showed attempts to
avoid detection and protect the drugs from police or theft. None of these items show
anything one way or the other about whether drug sales took place in the room. While
the Attorney General would have us infer sales took place there because Sandoval was
found later to both have possessed and used methamphetamine, to do so would be pure
speculation. Even if a sale had occurred, a single instance of selling or giving away,



                                             28.
absent other circumstances supporting a reasonable inference of continuous or repetitive
sales or gifts, is insufficient. (Holland, supra, 158 Cal.App.2d at pp. 588-589.)
       Neither is there sufficient evidence of continuous use of drugs in the bedroom.
Although the presence of the three cans with methamphetamine residue on them leads to
the reasonable inference that drugs were used in the room, there is no evidence from
which the jury reasonably could find that drug use occurred on more than one occasion,
or who used the drugs.
       The Attorney General asserts that Thomson’s admission that he is a
methamphetamine user supports a finding of continuous use in the bedroom. But as
Blackwood points out, the evidence that Thomson used drugs in his own bedroom is
insufficient to show Blackwood maintained a place for drug use within the meaning of
section 11366. “[S]ection 11366 does not apply to an individual’s continuous or repeated
use of controlled substances at home, absent evidence that the individual opened his or
her home to others for the purpose of selling or giving away to them, or for the use by
them of such substances.” (People v. Franco (2009) 180 Cal.App.4th 713, 724-725; see
also People v. Vera (1999) 69 Cal.App.4th 1100, 1102-1103 [explaining that section
11366 does not “cover repeated solo use at home”; instead, it requires “the provision of
such locality to others.”)
       Here, the evidence showed that Thomson lived in the bedroom with Blackwood.
The two lived there for about five months; according to Arias, “they moved out” at the
beginning of May 2009. Thomson told police everything he owned was in the bedroom.
While the verbal rental agreement was between Arias and Blackwood, who paid the rent,
Thomson also was an occupant of the bedroom. The evidence that Thomson used drugs
in his own bedroom is insufficient to show Blackwood maintained a place for drug use
within the meaning of section 11366. The purpose of section 11366 is “to prohibit
persons from maintaining a public nuisance, such as a Prohibition-era speakeasy or a
modern crack house. The use of drugs by an individual in his or her own home does not

                                            29.
by itself give rise to the type of public nuisance the statute was designed to address.”
(Franco, supra, 180 Cal.App.4th at p. 723.) Thomson’s use of drugs in his own home is
not the type of public nuisance addressed by section 11366. Consequently, his use of
drugs in the bedroom is not the type of activity for which Blackwood can be liable.
       The Attorney General also asserts continuous use may be inferred from
Sandoval’s presence in the bedroom, since she was later found to be under the influence
of methamphetamine. No evidence was presented, however, on how long the
methamphetamine had been in her system from which a jury could infer she used it in the
bedroom earlier that night. While there was evidence that Sandoval had been at the
house on other occasions, the record is silent on what she was doing there.
       The evidence of use and sales the Attorney General points to shows at the most
that two theories are equally likely to be true: that the bedroom was used just for
packaging drugs and personal use, or a sales operation was conducted there along with
use of methamphetamine by people other than Thomson and Blackwood. This is not
enough. The jury was instructed properly with CALCRIM No. 224: “Also, before you
may rely on circumstantial evidence to find the defendant guilty, you must be convinced
that the only reasonable conclusion supported by the circumstantial evidence is that the
defendant is guilty. If you can draw two or more reasonable conclusions from the
circumstantial evidence, and one of those reasonable conclusions points to innocence and
another to guilty, you must accept the one that points to innocence. However, when
considering circumstantial evidence, you must accept only reasonable conclusions and
reject any that are unreasonable.”
       Shoals is instructive. There, a search of a defendant’s motel room, which he
shared with a woman, by four parole officers, revealed 21 small baggies of cocaine base,
a pager and $533 in cash. (Shoals, supra, 8 Cal.App.4th at p. 481.) The appellate court
found insufficient evidence supported the defendant’s conviction for maintaining the
motel room for purposes of selling cocaine base in that the evidence showed the motel

                                             30.
room was used as a bedroom and “a home for a woman, possibly a man, and children,”
“there was no evidence of people visiting the place in unusual numbers or at unusual
times,” there was “no evidence of people under the influence on or around the premises,”
“there was no evidence of lookouts or the use of passwords or codes to gain access,” and
“there was no drug paraphernalia or drug residue in the room.” (Id. at p. 492.) While
there was expert testimony that the number of bindles indicated possession for sale, the
appellate court recognized the bindles were “extremely portable,” and the “comings and
goings of [the defendant] but not of customers support the inference that any selling to,
giving away to, or using by others besides [the defendant] and [the woman occupant]
took place elsewhere.” (Ibid.)
       The present case is similar. The evidence showed that Blackwood had been living
in the bedroom for a couple of months with Thomson, that drugs had been packaged
there, and that use occurred there on one occasion. Apart from this, there were no indicia
of continuous or repeated acts of use, gift, or sale of drugs in the bedroom. For these
reasons, we conclude Blackwood’s conviction on count 4 was not supported by sufficient
evidence and must be reversed.
       Blackwood also raises three sentencing errors, namely that the trial court imposed
an unauthorized criminal laboratory analysis fee under section 11372.5; she is entitled to
additional presentence custody credit awards from her prior case number TF005367A;
and she is entitled to 46 days of presentence conduct credit under new Penal Code section
4019. The Attorney General agrees with the first two contentions, but argues the new
version of section 4019 does not apply to Blackwood. In light of our reversal of the
maintaining-a-place conviction, however, these issues are moot.




                                            31.
                                    DISPOSITION
      Blackwood’s conviction on count 4, maintaining a place for selling, giving away,
or using a controlled substance is reversed. Blackwood’s case is remanded for
resentencing on case number TF005367A.
      Thomson’s judgment is affirmed.


                                                              _____________________
                                                                    Gomes, Acting P.J.
WE CONCUR:


 _____________________
Peña, J.


 _____________________
Oakley, J.




 Judge of the Superior Court of Madera County, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.




                                          32.
