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People v. Low

June 24, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
TONY RICHARD LOW, DEFENDANT AND APPELLANT.



Solano County Super. Ct. No. FCR-225077 Ct.App. 1/5 A112831 Judge: Michael R. Smith.

The opinion of the court was delivered by: Baxter, J.

Defendant Tony Richard Low, a convicted felon with a long criminal record, was arrested while driving a stolen vehicle. He received and waived his Miranda rights,*fn1 denied any wrongdoing, and underwent a patdown search before being taken into custody. No contraband or weapons were found.

Outside the entrance to the jail, the arresting officer told defendant that it was illegal to bring a controlled substance into the facility. Defendant denied having any drugs in his possession. He was brought inside and searched as part of the booking process. Despite his contrary assurance, defendant was found in the possession of a small packet of methamphetamine. It was tucked into his sock.

A jury convicted defendant of unlawfully driving or taking a vehicle -- the crime that triggered his arrest -- and of violating Penal Code section 4573.*fn2 As pertinent here, the latter statute makes it a felony for "any person" to "knowingly bring[ ] . . . into[ ] any state prison . . . or into any county . . . jail . . . any controlled substance" without legal authority or official permission to do so.

Defendant argues here, as he did in both the trial and appellate courts, that section 4573 does not apply to someone who is arrested and brought to jail, and who is found to possess a controlled substance during the booking process. First, defendant contends no statutory violation occurred because his presence inside the jail was involuntary and unrelated to any intent to smuggle drugs. The Legislature, he posits, has no discernable interest in penalizing someone who happens to have a controlled substance when detained for another crime. Second, defendant claims the statutory scheme placed him in an inherently coercive bind -- either admit possessing a controlled substance outside of jail (see Health & Saf. Code, § 11377, subd. (a)) (Health and Safety Code section 11377(a)), or bring the drugs inside and risk slightly stiffer sanctions under section 4573. Prosecution for the latter act, he asserts, violated his privilege against compelled self-incrimination under the Fifth Amendment to the United States Constitution.

We agree with the lower courts that, under the circumstances of this case, defendant is not statutorily or constitutionally immune from prosecution under section 4573. He voluntarily secreted a controlled substance on his person in violation of the law, was then arrested for unrelated criminal conduct, and thereafter committed a third crime -- knowingly entering jail in the possession of drugs. While such entry was compulsory, the act of bringing drugs inside was not. The arresting officer gave advance warning about the prohibitions in section 4573, and defendant violated its terms despite ample opportunity to avoid doing so.

In reaching this conclusion, we rely on the plain meaning of the statute, and on the manner in which similar statutes regulating other in-custody crimes have been construed. Indeed, by essentially limiting section 4573 and related provisions to noninmate smugglers, defendant's approach would risk the introduction of drugs and other contraband into penal settings, and undermine the legislative aim to maintain order and safety therein.

Nor does enforcement of section 4573 under the present circumstances violate the Fifth Amendment ban on the criminal use of compelled incriminating testimony. Section 4573 does not coerce anyone to admit guilt of any crime or punish them for failing to do so. It simply prevents all persons, including those arrested while unlawfully possessing drugs and committing other crimes, from engaging in a non-testimonial criminal act -- walking into a custodial setting with knowledge they are bringing controlled substances with them. To the extent defendant's false denial of guilt at the jail entrance incriminated him at trial, he is procedurally barred from raising the issue. In any event, any federal constitutional error in admission of the statement was not prejudicial.

We therefore decline to reverse the judgment of conviction.

I. FACTS

A. The Evidence

On the afternoon of June 29, 2005, Detective Ronald Jones of the Sacramento County Sheriff's Department was driving his official vehicle on Interstate 80 when defendant rapidly approached him from behind in a truck. As he passed the officer's car, defendant waved an object -- a water bottle bearing a law enforcement emblem. Jones learned by his on-board computer and police radio that the truck had been reported stolen. He requested backup, and followed as defendant left the freeway and stopped at a dead-end street. The truck had traveled at speeds of 80 to 100 miles per hour while weaving through traffic.

After activating his red emergency lights, Detective Jones drew his handgun and approached the truck. He identified himself as a police officer, and told defendant to stop the engine, toss the keys outside, and put his hands in the air. Over the next few minutes, defendant raised and lowered his hands several times, and did not otherwise do what Jones asked.

Meanwhile, Officer Christopher Wahl of the California Highway Patrol arrived and ordered defendant out of the truck. After another brief delay, defendant complied.

Officer Wahl placed defendant under arrest for the unlawful driving or taking of a motor vehicle. The officer patted the outside of defendant's clothing, looking for weapons, and found nothing. Defendant was advised of his constitutional rights under Miranda. After waiving those rights, he explained that the owner of the truck was a friend who had loaned it to him for work. Wahl then drove defendant by patrol car to the Solano County jail.

Outside the jail, near the entrance, Officer Wahl and defendant had another brief exchange. Wahl testified at trial that he told defendant "it was illegal to bring any controlled substances inside the jail facility." Wahl asked if defendant had any such item in his underwear or socks, or elsewhere on his person, and said he would be searched inside the building. According to Wahl, defendant stated he had "nothing inside his socks or undergarments."

Deputy Brian Glenn was on duty when Officer Wahl escorted defendant into the jail to be booked into custody. This process entailed a brief medical screening, fingerprinting, and an inventory search, in which defendant was told to remove his socks and shoes. When defendant fumbled with the left sock, Glenn peered inside the ankle-band area, and saw a small plastic baggie containing a clear, crystal-like substance. Glenn gave the baggie to Officer Wahl, who logged it into evidence. The packet and its contents were admitted at trial.

A criminalist tested the crystal substance that defendant brought into jail and found that it contained methamphetamine. The drug weighed 20 milligrams and was present in a usable amount.

Christopher Terrell owned the truck that defendant -- his friend, houseguest, and employee -- drove when arrested. Terrell's truck, which he cherished and rarely used for work, was a limited-edition 2003 Ford F150 with Harley-Davidson markings. Terrell described the circumstances under which defendant took the truck on June 21 without his knowledge or consent, and refused numerous requests by phone to return it. Terrell contacted the police.

Defendant did not testify at trial. He called one witness, his girlfriend, in defense of the Vehicle Code charge. An admitted methamphetamine user, she claimed that Terrell gave defendant the keys to the Ford, along with a bag of methamphetamine, and discussed materials needed for work. In rebuttal testimony, Terrell disputed this account.

B. The Proceedings

The jury convicted defendant, as charged, of two felony counts: (1) unlawfully driving or taking a vehicle in violation of Vehicle Code section 10851, subdivision (a), and (2) bringing a controlled substance into jail in violation of section 4573. In a bifurcated proceeding, the trial court found true three enhancements for prior prison terms alleged under section 667.5, subdivision (b). Two of them involved robbery convictions sustained in 1982 and 1988, and one concerned a 1993 burglary conviction. Defendant received a prison sentence of seven years eight months.*fn3

Near the close of trial, defendant argued, for the first time, that section 4573 did not apply to him. The first such exchange happened during discussions on jury instructions. Absent a standard instruction under section 4573, the court indicated that it would give modified versions of existing instructions on similar offenses. (See §§ 4573.6 [knowingly possessing controlled substance in prison or jail], 4574, subd. (a) (section 4574(a)) [knowingly bringing firearm, deadly weapon, or explosive into prison or jail]; CALJIC Nos. 7.34.01 & 7.34.03.)*fn4 Neither party objected to this approach. However, defendant asked the court to also instruct on the "simple" possession of methamphetamine under Health and Safety Code section 11377(a), which he described as a lesser included offense of section 4573. Defendant opined that the jury could find him not guilty of the section 4573 charge, and guilty only of the uncharged possession offense, because he did not "intentionally" bring drugs into jail, and entered "involuntarily," under arrest for another crime. The trial court rejected this view of the law and facts, and declined to instruct on the "lesser" charge.*fn5

Defendant expanded his challenge to section 4573 in a motion for new trial filed after the jury convicted him of that offense. As before, he claimed section 4573 exempts persons who possess controlled substances when arrested and jailed for other crimes, and that the statute targets noninmate smugglers. Defendant insisted section 4573 serves no purpose where, as here, a booking search could detect any hidden drugs, and other statutes regulating unauthorized drug possession seem to apply. The new trial motion also contained a claim that defendant had not presented earlier concerning violation of his privilege against compelled self-incrimination under the Fifth Amendment. Under this view, section 4573 compels arrestees to admit before ...


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