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People v. Gastello

June 24, 2010


Kings County Super. Ct. No. 05CM4995 Ct.App. 5 F050325 County: Kings Judge: Louis F. Bissig.

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

This case presents issues related to those we decide today in People v. Low (June 24, 2010, S151961) __ Cal.4th __ (Low), concerning Penal Code section 4573.*fn1 As pertinent here, this statute, which is part of a larger scheme regulating crimes in prison and jail, makes it a felony for "any person" to "knowingly bring[ ]" a controlled substance into a custodial setting.

In Low, we conclude that the statute applies to someone who has a controlled substance in his possession when arrested for another crime, and who knowingly and voluntarily brings the drugs into jail when booked pursuant to that arrest. Low relies on the language and history of section 4573, and on similar statutes banning contraband in custody, to find that the statute does not exempt persons who enter jail under the specified circumstances, including arrestees.

Low also rejects a claim that section 4573 implicates the Fifth Amendment privilege against compulsory self-incrimination because the arrestee must choose before entering jail between admitting unlawful drug possession or violating section 4573 and risking greater penalties. As Low explains, a violation of section 4573 does not involve compelled self-incriminating "testimony," but rather the non-testimonial act of "knowingly bring[ing]" drugs into a correctional facility. The statute simply prohibits a person detained and brought to jail for one crime from entering and committing a new drug-related crime inside.

Here, the Court of Appeal reversed the section 4573 conviction for reasons that deviated from our reasoning in Low today. The court concluded that the statute does not apply to arrestees brought into jail with controlled substances secreted on their person because they are not present by choice or pursuant to an intent to smuggle drugs. The court further indicated that the statutory scheme raises concerns about self-incrimination under the Fifth Amendment insofar as it coerces arrestees to admit that they possess drugs, and punishes them more harshly if they fail to do so and instead bring the drugs into jail.

We disagree with both the reasoning and conclusions of the Court of Appeal. Under Low, an arrestee's "involuntary" presence in jail does not negate the elements of the crime or make prosecution unconstitutional. Section 4573 was intended to apply in this situation, such persons have a choice not to violate its terms, and strong reasons exist for not allowing them to freely bring drugs into jail. The facts of this case demonstrate -- perhaps even more clearly than in Low -- that section 4573 involves no compelled incriminating testimony for Fifth Amendment purposes. Unlike in Low, where the defendant falsely denied possessing any drugs at the jail entrance, defendant here said nothing substantive in response to the arresting officer's warning about bringing drugs with him. Any difficulty defendant faced in making this choice was largely of his own making. He committed a non-testimonial act for which he was not immune from prosecution or conviction under section 4573.


The trial concerned events that occurred in the City of Hanford on November 24, 2005, Thanksgiving night. Around 11:00 p.m., Officer Jennifer Machado was patrolling in her police car when she saw Tommy Gastello (defendant) and his adult son, Johnny, riding bicycles on a dark street. Because she saw no lights on their vehicles as required by law, Machado stopped the pair outside an apartment complex. Defendant was holding a knife in one hand as he grasped the handlebar -- an act that Machado did not perceive as threatening or unlawful. However, defendant seemed agitated, and insisted that Machado justify the stop. Meanwhile, two other officers arrived. One of them spoke with Johnny.

While engaged in conversation with defendant, Officer Machado suspected that he was "hid[ing] something." He spoke at a rapid pace and made odd, spontaneous statements (e.g., "These pants don't belong to me"). Based on a preprinted card she had been trained to use for this purpose, Machado determined that defendant's pupils were too constricted and rigid for the lighting conditions. As a result, she arrested him for being under the influence of a controlled substance.*fn2

For safety reasons, Officer Machado took the knife from defendant's hand. She also patted down the outside of his clothes, and looked inside his pockets and waistband for additional weapons. Nothing was found. Machado placed defendant in the patrol car, and drove him to the Kings County jail.

Before entering the jail parking lot, Officer Machado stopped the car and looked at defendant. She said that "it was a felony to bring any narcotics, any drugs or any weapons into the jail." She asked whether he understood this statement. Defendant's only response was "yes."

Inside the jail, Officer Machado monitored the booking process. It entailed a brief medical screening, removal of defendant's outerwear, including a sweatshirt, and an inventory search of his property. In the presence of both Machado and jail staff, defendant placed his belongings on the table for inspection. All of sudden, he warned Machado not to touch them, saying, "I have fleas. I have fleas." As she reached for his sweatshirt, defendant said, "What's that?" Machado moved the sweatshirt and saw a small bindle, wrapped in plastic, containing a crystal-like substance. Defendant remarked, "You planted that on me."

Chemical analysis revealed that the bindle found in defendant's sweatshirt held .32 grams of methamphetamine. The criminalist who performed the testing determined that the substance was a usable amount. In addition, a toxicologist analyzed a blood sample that had been taken from defendant in jail. The sample contained both methamphetamine and morphine. The drugs were present in sufficiently high amounts that would render the person under the influence of a controlled substance, and were consistent with "speed balling" -- mixing a stimulant with a depressant for a "roller coaster" effect.

Defendant did not testify at trial. His son, Johnny, who witnessed the arrest, and defendant's wife, Kathy, who watched it from an apartment window, described the actions of the police that night. Kathy admitted that defendant had a "history" of using methamphetamine and opiates, but she did not see him take any drugs that day. Johnny, who had a prior felony conviction for ...

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