1

Filed 8/15/14 P. v. Meyers CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

MIKA L. MEYERS,

Defendant and Appellant.

A135489

(Humboldt County

 Super. Ct. No. CR1101071)

ORDER MODIFYING OPINION 

AND DENYING REHEARING

NO CHANGE IN JUDGMENT

BY THE COURT:

It is ordered that the opinion filed on August 4, 2014, be modified as follows:

At page six, replace the first full paragraph with the following paragraph:

Contrary to defendant’s contention, his admission (that he was not 

profiteering), supported by Fisher’s statements to the police that he had purchased 

heroin from defendant in the past and on the day of the search he was at the 

residence to buy heroin from defendant, and together with the physical evidence 

found throughout the residence, was sufficient circumstantial evidence from which 

the jury could reasonably infer that defendant “maintained this residence” for 

either selling, giving, or “using and sharing [heroin] with other people.” (Green, 

supra, 200 Cal.App.3d at p. 544.) 

The petition for rehearing is denied. There is no change in the judgment.

Dated: ___________________________ P.J.
1

Filed 8/04/14 P. v. Meyers CA1/3 (unmodified version)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

MIKA L. MEYERS,

Defendant and Appellant.

A135489

(Humboldt County

 Super. Ct. No. CR1101071)

After a jury trial defendant Mika L. Meyers was convicted of the felony offense of 

possessing heroin (Health & Saf. Code, § 11350, subd. (a)1), as a lesser included offense 

of possessing heroin for sale (§ 11351), and maintaining a place for the purpose of 

selling, giving away, or using a controlled substance (heroin) as a felony offense

(§ 11366). In a bifurcated court proceeding, defendant admitted to allegations that he had 

four prior felony convictions (Pen. Code, § 1203, subd. (e)(4)), had served two separate

prior prison terms (Pen. Code, § 667.5, subd. (b)), and had two prior strikes within the 

meaning of the Three Strikes law (Pen. Code, § 667, subds. (b) – (i)). After denying a 

motion to strike either or both prior strikes (Pen. Code, § 1385; People v. Superior Court 

(Romero) (1996) 13 Cal.4th 497), the court sentenced defendant to state prison for an 

aggregate term of 27 years to life, consisting of concurrent terms of 25 years to life for 

each drug offense and consecutive terms of one year for each of the two prior prison 

terms. 

 

1 All further unspecified statutory references are to the Health and Safety Code.
2

On appeal defendant challenges his conviction for maintenance of a place for the 

purpose of selling, giving away, or using a controlled substance (heroin) on the grounds

of insufficiency of evidence and an erroneous jury instruction. He also contends his 

sentence should be set aside and the matter remanded for a new sentencing hearing 

pursuant to Penal Code sections 667 and 1170.12, as amended by Proposition 36, the 

Three Strikes Reform Act of 2012. We affirm.

FACTS

On March 9, 2011, defendant and his girlfriend Rubi Armas were living in a

residence in Eureka. Detective Patrick Bishop, Detective Neil Hubbard, Sergeant Steven

Watson, Reserve Detective Ron Prose, and Captain Murl Harpham of the Eureka Police 

Department went to the residence to conduct a parole search. Some of the officers went 

to the rear of the residence, while others knocked on the front door, yelling, “Police 

Department. Parole Search.” 

The officers at the rear saw defendant peek out a window and ordered him to leave 

the residence. As defendant left the residence, Detective Hubbard attempted to handcuff 

defendant. Defendant fidgeted with his waistband before allowing himself to be 

handcuffed.. After defendant was handcuffed, Hubbard moved him away from the back 

door as other officers detained and handcuffed Robert Fisher and Christopher Benoit who 

were found inside the residence. After the detention of the three men in the backyard, 

Detective Bishop found a bag containing eight bindles of heroin (seven weighed .2 

grams; one weighed .3 grams) wrapped in yellow cellophane on the threshold of the back 

door where Hubbard had been standing while he handcuffed defendant. The yellow 

cellophane was wrapped around a white plastic bag with pieces torn off; the torn plastic 

pieces were used to package controlled substances by sealing the drugs inside the plastic. 

During a search of the living room, the officers found heroin residue and another 

bindle of heroin (.6 gram gross field weight) wrapped in yellow cellophane inside a 

recliner chair and several suboxone pills (commonly used to help heroin addicts break 

their addiction) inside a cabinet. Against a living room wall on a hanger system for coats 

near the front door, a hypodermic needle was found inside a green rain jacket and another 
3

bindle of heroin (.2 gram gross field weight) wrapped in red cellophane was found inside 

a blue flannel jacket. During a search of the kitchen, the officers found heroin residue,

loose drug packaging material (pieces of yellow cellophane plastic similar to the 

cellophane used to package the found heroin bindles), spoons used to cook heroin, and a 

hypodermic needle. During a search of a bedroom, the officers found two additional used 

“cooker” spoons, a piece of aluminum foil with burn marks, and one or two hypodermic

syringe needles that appeared to be have been used to inject a controlled substance such 

as heroin. During a search of the bathroom, an officer found “a hypodermic syringe” that 

someone had attempted to shove down the sink drain hole, and “on the top of the sink 

itself there was the lid to a gram scale that was covered with a brown tarry substance” 

that “appeared to be tar heroin residue.” The actual gram scale was not found, but the 

condition of the scale lid indicated to the officers that “there had been a scale in the house 

and that th[e] scale had been used to weigh out heroin, tar heroin specifically . . . .” 

At the residence Officer Bishop spoke with Fisher after he was detained and 

waived his Miranda rights. The officer testified that Fisher admitted he used heroin, 

knew defendant to be a heroin seller who typically sold “20s,” and had purchased heroin 

from defendant in the past. Fisher also admitted that on the day of the search he was at 

the residence to buy drugs from defendant. At trial Fisher denied that he ever bought 

heroin from defendant or that he ever saw defendant sell heroin. After reading Bishop’s 

police report, Fisher testified he did not remember telling the officer that he knew 

defendant sold heroin or the amounts of heroin sold by defendant, but admitted that the 

officer could have accurately reported Fisher’s statements. Fisher also conceded it was 

possible he told the officer he had purchased heroin from defendant on three or four 

occasions. 

As the officers were searching the residence, a man came to the front door with 

$40 on his person and he was also detained by officers. Defendant was arrested after the

officers completed their search and seizure of evidence at the residence. During the 

booking process, an officer found two bindles of heroin in defendant’s pants pocket. One 

bindle was wrapped in yellow cellophane and one bindle was wrapped in white 
4

cellophane. Defendant said the bindles were “fifths” (about .2 grams) and he believed 

“that’s what [he] paid for.” While incarcerated, defendant wrote a letter in which he 

stated he “got cracked for possession for sale on 3/9/11 was not profiteering.” All but 

two of the seized 12 bindles of heroin weighed .2 grams or less; the other bindles 

weighed about .4 grams and about .6 grams, with the total weight of recovered heroin 

being about two grams. After being qualified as an expert “in the identifications of 

narcotics and possession of heroin for sale,” Officer Watson testified the recovered

heroin was “a usable amount” and its packaging indicated the heroin was more than just 

for personal use and was possessed for sale. According to Watson, it would be more cost 

effective for a drug user to buy drugs in gram weights and then to break off small pieces 

for personal use. The officer opined that unless a drug user was selling drugs there would 

be no reason to have bindles measured out in common sales weights and similar, unused 

packaging materials in the kitchen. The officer opined the evidence demonstrated 

defendant was a “user dealer,” as it was very common for a heroin user to sell heroin, to 

have other heroin users in his residence, and to allow other persons to use the heroin in 

the house. 

DISCUSSION

I. Sufficiency of Evidence to Support Conviction for Maintaining A Place for 

the Purpose of Selling, Giving Away, or Using Heroin (§ 11366)

As we now discuss, we conclude there is no merit to defendant’s arguments

seeking to set aside his conviction for maintaining a place for the purpose of selling, 

giving away, or using heroin (§ 11366 2) on the ground of insufficiency of evidence.

 

2

Section 11366 provides, in pertinent part, that “[e]very person who opens or 

maintains any place for the purpose of unlawfully selling, giving away, or using [a 

specified] controlled substance . . shall be punished by imprisonment in the county jail 

for a period of not more than one year or the state prison.” By case law, the courts have 

held that a conviction for violating section 11366 requires that a defendant open and 

maintain a place for persons other than defendant on a repeated or continuous basis. (See, 

e.g., People v. Franco (2009) 180 Cal.App.4th 713, 726; People v. Vera (1999) 69 

Cal.App.4th 1100, 1103 (Vera).) 
5

Defendant initially argues his conviction for violating section 11366 should be set 

aside because there was no evidence showing that he rented the house for use as a “drug 

den,” and not a residence. We disagree. By his argument, defendant “proposes that the 

sole justification for maintaining the residence must be the illegal activity, and that this 

illegality must be the ‘unbroken, coherent whole’ of the activity at the residence. . . . 

[However, he] fails to consider the obvious consequences of such an interpretation. If the 

house is totally and exclusively used for narcotics purposes, it cannot be a residence at 

all.” (People v. 25651 Minoa Dr. (1992) 2 Cal.App.4th 787, 798-799.) Thus, we agree 

with those courts that “have addressed this issue” and have “concluded that such a 

limitation on section 11366 would render it meaningless.” (Id. at p. 799; see People v. 

Green (1988) 200 Cal.App.3d 538, 544 (Green); People v. Roeschlaub (1971) 21 

Cal.App.3d 874, 876-878; People v. Clay (1969) 273 Cal.App.2d 279, 283-284.) 

We also see no merit to defendant’s argument that his conviction for violating 

section 11366 should be set aside because the evidence did not show that he maintained 

the residence for the purpose of selling, giving away, or using heroin by other persons. 

“ ‘On appeal we review the whole record in the light most favorable to the judgment to 

determine whether it discloses 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. [Citations.] The standard of review is the 

same in cases in which the People rely mainly on circumstantial evidence. [Citation.] 

“Although it is the duty of the jury to acquit a defendant if it finds that circumstantial 

evidence is susceptible of two interpretations, one of which suggests guilt and the other 

innocence [citations], it is the jury, not the appellate court which must be convinced of 

the defendant’s guilt beyond a reasonable doubt. ‘ “If the circumstances reasonably 

justify the trier of fact’s findings, the opinion of the reviewing court that the 

circumstances might also reasonably be reconciled with a contrary finding does not 

warrant a reversal of the judgment.” ’ [Citations.]” [Citation.] “ ‘Circumstantial 

evidence may be sufficient to connect a defendant with the crime and to prove his guilt 

beyond a reasonable doubt.’ ” ’ ” (People v. Abilez (2007) 41 Cal.4th 472, 504.) 
6

Contrary to defendant’s contention, his admission (that he was not profiteering) 

and Fisher’s statements to the police regarding both past activities at the residence and his 

reason for being at the residence on the day of the search, together with the physical 

evidence found throughout the residence, was sufficient circumstantial evidence 

supporting a reasonable inference that defendant “maintained this residence” for either 

selling, giving away, or “using and sharing [heroin] with other people.” (Green, supra,

200 Cal.App.3d at p. 544.) 

In reaching our decision, we see no merit to defendant’s argument that we must 

not consider any evidence that heroin was sold at the residence because the jury found

him guilty of only simple possession of heroin and not possession of heroin for sale. 

“[T]he trier of fact may accept part of the testimony of a witness and reject another part 

even though the latter contradicts the part accepted. [Citations.] As [the court] said in 

Nevarov v. Caldwell (1958) 161 Cal.App.2d 762, 777, ‘the jury properly may reject part 

of the testimony of a witness, though not directly contradicted, and combine the accepted 

portions with bits of testimony or inferences from the testimony of other witnesses thus 

weaving a cloth of truth out of selected available material.’ ” (Stevens v. Parke, Davis & 

Co. (1973) 9 Cal.3d 51, 67-68.) Consequently, it is well settled that even if an acquittal 

on one charge is “factually irreconcilable” with the guilty verdict on another charge, 

“effect is given to both” the acquittal and the guilty verdict if the latter is supported by 

substantial evidence in the record. (People v. Panah (2005) 35 Cal.4th 395, 490; see 

United States v. Powell (1984) 469 U.S. 57, 64-69 [same rule applied in the federal 

courts].) As pertinent to this case, and despite defendant’s arguments to the contrary, the 

jury’s acquittal on the charge of possession of heroin for sale shows “no more than jury

lenity, compromise, or mistake, none of which undermines the validity” of the guilty 

verdict on the charge of violating section 11366. (People v. Lewis (2001) 25 Cal.4th 610, 

656.) 

We conclude our decision by noting that we see nothing in People v. Shoals

(1992) 8 Cal.App.4th 475 (Shoals), People v. Hawkins (2004) 124 Cal.App.4th 675

(Hawkins), or Vera, supra, 69 Cal.App.4th 1100, that supports defendant’s argument that
7

his conviction for violating section 11366 should be set aside for insufficiency of 

evidence. Defendant’s argument in effect asks us to reweigh the evidence, which we 

decline to do. 

II. Trial Court’s Instructions Concerning the Crime of Maintaining A Place for 

the Purpose of Selling, Giving Away, or Using Heroin (§ 11366)

Using the language in CALCRIM No. 2440, the court instructed the jury on the 

felony offense of maintaining a place for the purpose of selling, giving away, or using a

controlled substance (heroin), as follows: “To prove the defendant is guilty of this crime, 

the People must prove that: [¶] 1. The defendant maintained a place; [¶] AND [¶] 2. The 

defendant maintained the place with the intent to sell, give away, or allow others to use a 

controlled substance, specifically heroin, on a continuous or repeated bas[i]s at that 

place.” 

During deliberations, the jury sent the court the following question: “Regarding 

question of residence maintaining with intent to sell: Does a house have to be maintained 

with solely the intent to use, sell or give away Drugs? [¶] For example, when Mr. Myers 

[sic] initially rented the house, did he have to have known the purpose for renting was to 

use drugs?” (Underline in original.) In response and without apparent objection by 

either party, the court sent the jury the following written response: “1) No, the house does 

not have to be maintained solely for the purpose and intent to use, sell, or give away 

drugs. [¶] 2) No, the defendant did not have to initially rent the house for the purpose of 

using, selling, or giving away drugs, but must have formed the specific intent to use, sell 

or give away drugs at that location, on a continuous or repeated basis, at or about the time 

of the alleged offense.” (Underline in original.) 

On appeal defendant argues the trial court incorrectly responded to the jury’s 

questions because section 11366 is not violated where a defendant rents a place to use as 

a residence, but coincidentally also permits others to use drugs there. We disagree.3 

 

3 We reject the Attorney General’s argument that the issue is not preserved for our 

review. “ ‘Generally, a party forfeits any challenge to a jury instruction that was correct 

in law and responsive to the evidence if the party fails to object in the trial court.’ 
8

Even if defendant used the house as his residence, the court properly instructed the jurors 

that they could find “the house had a multiplicity of purposes” (People v. 25651 Minoa 

Dr., supra, 2 Cal.App.4th at p. 800), and that “regardless of which of th[e] prohibited 

purposes [was] actually involved” (Vera, supra, 69 Cal.App.4th at p. 1103), defendant’s 

maintenance of the place for that purpose could be found to be a violation of section 

11366. (See Green, supra, 200 Cal.App.3d at p. 544 [“section 11366 does not require 

that the place be maintained for the purpose of selling; it can be violated without selling, 

merely by providing a place for drug abusers to gather and share their experience”].) 

Neither Shoals, supra, 8 Cal.App.4th at p. 492, Hawkins, supra, 124 Cal.App.4th at 

p. 683, nor Vera, supra, 69 Cal.App.4th at pp. 1102-1103,supports defendant’s argument 

that a violation of section 11366 requires that the place intended to be provided to others 

for the prohibited purposes of selling, giving away, or using illegal drugs, be maintained 

solely for one of those illegal purposes and for no other purpose. 

III. Defendant’s Request for Resentencing Pursuant to Penal Code Sections 667 

and 1170.12, as amended by Proposition 36, the Three Strikes Reform Act of 

2012

After defendant was convicted and sentenced to indeterminate life sentences under 

the former Three Strikes law, “the voters approved Proposition 36, the Three Strikes 

Reform Act of 2012, which amended [Penal Code] sections 667 and 1170.12 and added 

[Penal Code] section 1170.126 (hereafter the Act). The Act changes the requirements for 

sentencing a third strike offender to an indeterminate term of 25 years to life 

imprisonment. Under the original version of the three strikes law a recidivist with two or 

more prior strikes who is convicted of any new felony is subject to an indeterminate life 

sentence. The Act diluted the three strikes law by reserving the life sentence for cases 

where the current crime is a serious or violent felony or the prosecution has pled and 

 

[Citation.] Defendant’s claim, however, is that the instruction is not correct in law, and 

that it violated his federal constitutional rights because it omitted [a] required element[ ]

from the statute. This type of claim need not be preserved by objection before an 

appellate court can address the issue. [Citation.] We therefore consider defendant's 

instructional error challenge.” (People v. McPheeters (2013) 218 Cal.App.4th 124, 132.) 
9

proved an enumerated disqualifying factor. In all other cases, the recidivist will be 

sentenced as a second strike offender. ([Pen. Code,] §§ 667, 1170.12.) The Act also 

created a postconviction release proceeding whereby a prisoner who is serving an 

indeterminate life sentence imposed pursuant to the three strikes law for a crime that is 

not a serious or violent felony and who is not disqualified, may have his or her sentence 

recalled and be sentenced as a second strike offender unless the court determines that 

resentencing would pose an unreasonable risk of danger to public safety. ([Pen. Code,] 

§ 1170.126.[

4

])” (People v. Yearwood (2013) 213 Cal.App.4th 161, 167-168 

(Yearwood).) 

There is no dispute that if defendant had been sentenced for his current 

convictions after the effective date of the Act, indeterminate life sentences would not 

have been imposed. Defendant argues that because his conviction is not yet final, this 

court should vacate his sentence and remand the matter to the trial court for resentencing 

under Penal Code sections 667 and 1170.12, as amended by the Act. The Attorney 

General argues because defendant was currently serving his life sentences on the 

effective date of the Act, defendant’s only remedy is to wait until his conviction is final 

and then petition for recall of his sentence pursuant to the procedures in Penal Code 

section 1170.126. In reply, defendant opposes the Attorney General’s remedy, arguing, 

 

4

Penal Code section 1170.126 reads, in pertinent part: “(a) The resentencing 

provisions under this section and related statutes are intended to apply exclusively to

persons presently serving an indeterminate term of imprisonment pursuant to paragraph 

(2) of subdivision (e) of Section 667 or paragraph (2) of subdivision (c) of Section 

1170.12, whose sentence under this act would not have been an indeterminate life 

sentence. [¶] (b) Any person serving an indeterminate term of life imprisonment pursuant 

to paragraph (2) of subdivision (e) of Section 667 or paragraph (2) of subdivision (c) of 

Section 1170.12 upon conviction, whether by trial or plea, of a felony or felonies that are 

not defined as serious and/or violent felonies by subdivision (c) of Section 667.5 or 

subdivision (c) of Section 1192.7, may file a petition for a recall of sentence, within two 

years after the effective date of the act that added this section or at a later date upon a 

showing of good cause, before the trial court that entered the judgment of conviction in 

his or her case, to request resentencing in accordance with the provisions of subdivision 

(e) of Section 667, and subdivision (c) of Section 1170.12, as those statutes have been 

amended by the act that added this section.”
10

among other things, that Penal Code section 1170.126 does not provide an exclusive 

remedial procedure and allows a defendant to choose to either seek remand on direct 

appeal or petition for recall under Penal Code section 1170.126. We agree with the 

Attorney General’s position, which is supported by current case law, that defendant is not 

entitled to vacatur of the sentence and remand for resentencing.

In Yearwood, supra, 213 Cal.App.4th 161, the Fifth District Court of Appeal, after 

an extensive discussion including a review of “the arguments contained in the voter 

information guide” in favor of the Act, and the actual language used in the amended 

statutes, concluded that Penal Code sections 167 and 1170.12, as amended, were not 

meant to apply retroactively to persons, like defendant, who were serving a sentence 

pursuant to the former three strikes law on the effective date of the Act, but whose 

convictions were not yet final. (Yearwood, supra, at pp. 168, 171, 175-177.) In reaching 

its decision, the Yearwood court noted that a person in defendant’s position was not 

without a remedy: “A prisoner who was sentenced to an indeterminate life term before 

the Act’s effective date may file a [Penal Code] section 1170.126 petition upon finality of 

the judgment. If qualified, a prisoner will ordinarily receive the same sentencing 

reduction that would have been obtained if he or she had been resentenced under 

amended [Penal Code] sections 667 and 1170.12. The discretionary public safety 

exception to second strike sentencing that is present in [Penal Code] section 1170.126, 

but not in amended [Penal Code] sections 667 and 1170.12, is rationally related to a 

legitimate state interest. It increases the likelihood that prisoners whose sentences are 

reduced or who are released due to the Act will not pose an unreasonable risk of danger 

to the public.” (Yearwood, supra, at p. 179.) We see no further need to address the issue, 

which is currently pending before our Supreme Court. (See, e.g., People v. Conley

(2013) 215 Cal.App.4th 1482, review granted Aug. 14, 2013, S211275 [holding the Act 

is not retroactive].) In reaching our decision, we express no opinion on whether or not 

defendant is entitled to resentencing pursuant to Penal Code section 1170.126. 

DISPOSITION

The judgment is affirmed.
11

_________________________

Jenkins, J.

I concur:

_________________________

McGuiness, P. J.

People v. Mika L. Meyers, A135489
1

POLLAK, J., Concurring and Dissenting.

I agree with the majority that defendant’s conviction should be affirmed for the 

reasons stated in the majority opinion. However, pending resolution of the issue now 

before our Supreme Court, I would remand the matter for resentencing pursuant to the 

provisions of Penal Code sections 667 and 1170.12 as modified by the approval of 

Proposition 36 in November 2012. I would adopt the reasoning in two of the cases now 

under review (People v. Contreras (2013) 221 Cal.App.4th 558, review granted 

Jan. 29, 2014, S215516; People v. Lewis (2013) 216 Cal.App.4th 468, review granted 

Aug. 14, 2013, S211494). In my view, the analysis in these cases produces a result more 

fair, efficient and in accord with the apparent intent of Proposition 36 than the alternative 

of requiring a defendant sentenced under the prior version of the statute but whose 

conviction was not final when the revisions became effective to commence a new 

proceeding to recall the sentence (Pen. Code, § 1170.126). Should this defendant, who 

has begun serving his sentence, be treated any differently than a defendant sentenced at 

the same time who was permitted to remain out of custody pending a determination of his 

or her appeal? Should a defendant who obtains a reversal of some but less than all of the 

offenses on which he or she was convicted, requiring a remand for resentencing, be 

resentenced under the former provisions of Penal Code sections 667 and 1170.12 that are 

no longer in effect? In my view, there is no good reason for answering these questions in 

the affirmative or for refusing to apply the new provisions in cases not yet final simply 

because the defendant has begun serving the sentence. 

_________________________

Pollak, J.

People v. Mika L. Meyers, A135489