Trial Court: Santa Cruz County Superior Court Trial Judge: The Honorable Robert B. Atack (Santa Cruz County Super. Ct. No. F17818)
The opinion of the court was delivered by: Mihara, Acting P. J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Defendant Jose Gonzalez Sanchez was convicted by jury trial of carrying a concealed firearm in a vehicle (Pen. Code, § 12025, subd. (a)(1)) and bringing a controlled substance into a jail (Pen. Code, § 4573). The jury found true allegations that the firearm was loaded and that defendant was "not listed with the California Department of Justice as the registered owner of the firearm." An allegation that defendant had suffered a prior juvenile adjudication that qualified as a strike was also found true. The jury could not reach a verdict on a felony count of active participation in a criminal street gang (Pen. Code, § 186.22, subd. (a)). After trial, defendant pleaded no contest to a misdemeanor count of active participation in a criminal street gang. He was committed to state prison to serve a term of seven years and four months.
On appeal, he contends that (1) the controlled substance count was not supported by substantial evidence that he voluntarily brought the substance into the jail after his arrest, (2) the trial court prejudicially erred in admitting into evidence a certificate stating that there was "no record" that defendant was the registered owner of any firearm, (3) his juvenile adjudication could not constitutionally be used as a strike, and (4) the trial court erred in failing to award him additional conduct credit under the January 2010 version of Penal Code section 4019*fn2 at his 2009 sentencing. We reject all of defendant's contentions but one. We conclude that the trial court prejudicially erred in admitting the certificate into evidence over his Sixth Amendment objection. Consequently, we reverse and remand for possible retrial of the firearm count.
Santa Cruz County Deputy Sheriff John Etheridge was driving along Highway 129 at about 10:00 p.m. on April 17, 2009 when he saw a vehicle quickly turn off the road. Etheridge was concerned that the vehicle might have broken down or "somebody was sick inside the car," so he turned around and drove back to the vehicle. He pulled in behind the vehicle and shined his spotlight on it. Etheridge saw three men standing outside the vehicle. One of them was defendant, and another was defendant's brother. The third man "looked very tense." Etheridge got out of his patrol car and said: "Hey, sheriff's office. What's going on?"
Defendant, whose back was to Etheridge, "looked like he tucked something into his waistband" and then he walked toward the vehicle. Etheridge yelled at defendant and his brother to "stop and show me their hands." They did not stop, and both of them approached the vehicle. Meanwhile, the third man, who "looked really scared," walked toward the back of Etheridge's patrol car. Defendant got into his vehicle and started "rooting around." Etheridge yelled at him to "get out of the car." Defendant got out of the vehicle, walked to its rear bumper and then returned to the vehicle and did more "rooting around." His activities were near the bottom of the driver's seat. Defendant exited the vehicle again, this time with some paperwork in his hand. Etheridge had not asked defendant for his license or registration.
Etheridge yelled at defendant to "get on the ground," but defendant did not comply. Defendant's brother tossed something small into the back seat of the car. Etheridge continued to yell at defendant and his brother to "get on the ground." Eventually, defendant and his brother complied. The third man also got on the ground. Etheridge called for backup. When backup arrived, the three men were handcuffed and placed in separate patrol cars. Defendant was handcuffed with his hands behind him.
Etheridge looked inside the vehicle and saw, in plain sight, "several bullets laying [sic] on the floorboard of the car." He then looked under the driver's seat and "saw the handle of a handgun sticking out." The gun was a Colt 357 Magnum revolver, which was loaded with six rounds in its chamber. Etheridge could not find a serial number on the revolver. A small pocketknife was in the back seat.
Defendant told the police that he had been the driver of the vehicle, and he acknowledged that he had "illegal stuff" in the vehicle. Defendant was pat searched for weapons and then transported to the county jail and booked. When he was searched at the jail by jail security personnel, the initial search, which was done with his clothes on, disclosed nothing. During the subsequent strip search, a "white bindle" was observed "close to his anus." Defendant was asked about the bindle, and he "quickly reached around with his right hand between his buttocks, grabbed the white bindle and quickly put it in his mouth attempting to swallow it." He was told to spit it out, and he did so. The bindle contained about a half gram of cocaine.
II. Procedural Background
Defendant was charged by amended information with actively participating in a criminal street gang (§ 186.22, subd. (a)), carrying a concealed firearm in a vehicle (§ 12025, subd. (a)(1)), and bringing a controlled substance into a jail (§ 4573). The amended information further alleged as to the firearm count that "the firearm and unexpended ammunition were in the immediate possession of, and readily accessible to, the Defendant and that the firearm was not registered to the Defendant." (§ 12025, subd. (b)(6).) The firearm count was also the subject of a gang enhancement allegation (§ 186.22, subd. (b)(1)). The amended information also alleged that defendant had suffered a prior juvenile adjudication that qualified as a strike (§ 667, subds. (b)-(i)).
The jury returned guilty verdicts on the controlled substance and firearm counts, and it found true allegations "that the firearm was loaded" and that defendant was "not listed with the California Department of Justice as the registered owner of the firearm."*fn3 The jury also found true the allegation that defendant had suffered a prior juvenile adjudication for assault with a deadly weapon that qualified as a strike. The jury was unable to reach a verdict on the gang count or the gang allegation. Defendant subsequently pleaded no contest to a misdemeanor gang count, and the gang enhancement allegation was dismissed.
Defendant was sentenced on December 14, 2009. The court denied defendant's motion to strike the prior juvenile adjudication finding, and it imposed a six-year doubled midterm sentence for the controlled substance count and a consecutive doubled one-third the midterm sentence of one year and four months for the firearm count. Defendant was awarded 89 days of custody credit and 44 days of conduct credit under former section 4019. Defendant timely filed a notice of appeal.
A. Controlled Substance Count
When the court orally instructed the jury on the controlled substance count, it told the jury that defendant was charged with "willfully and knowingly bringing cocaine, a controlled substance, into a penal institution," and that the prosecution was required to prove that "defendant knowingly and voluntarily brought the substance into a penal institution." (Italics added.) On the written instruction subsequently provided to the jury, the words "willfully and" were blacked out.*fn4 The jury was also instructed that this count required proof of "wrongful intent." "For you to find a person guilty of these crimes that person must not only commit the prohibited act, but must do so with the wrongful intent. [¶] A person acts with wrongful intent when he intentionally does a prohibited act on purpose." The jury was also instructed on the lesser offense of possession of a controlled substance.
The prosecutor argued to the jury: "Now, the only argument on this charge the defense can make is that he didn't knowingly and voluntarily bring it into the jail, but the evidence suggests he did. You have that packaging booked into evidence. Open it up, take a look at the bindle and, guess what, there's no tape. There's no tape. And that's significant because that means it wasn't stored long-term near his anus. You probably wouldn't want to store something near your anus that you intended to ingest later on anyway. It might not be very hyg[i]enic. But even if he was riding around all day long with that in his buttocks, he would have had to tape it in place. That's the only reasonable interpretation because, otherwise, all day long he would be walking like this (indicating). How is he going to keep it in there? The reasonable explanation of the evidence, ladies and gentlemen, is that he had the drugs somewhere else when he was taken into custody and then he transferred those drugs into his buttocks in an attempt to smuggle them inside the jail. . . . The fact that there is no tape holding that in place also supports the inference that it was a spur of the moment thing. He had to do it and he had to do it quickly to avoid detection and to bring that substance into the jail with him."
Defendant's trial counsel argued that defendant had not "knowingly and voluntarily brought the substance into a penal institution." "He is guilty of possessing it, but knowingly and voluntarily bringing the substance into a penal institution he is not because he didn't voluntarily go to jail. He wasn't bringing it in visiting someone. He wasn't trying to bring it into the jail. It wasn't voluntarily. He was handcuffed, put into the backseat of a car and brought to jail."
The prosecutor responded in his closing argument. "Is it possible that the defendant had that [cocaine] and just involuntarily was taken to the jail? Sure. But look at the defendant's conduct. Number one; it was secreted in a place that people don't normally put things they're going to consume. And, number two; when the correction[s] officer did it [sic] find it, what did he do? Did he say, hey, man, you got me? I'm sorry. It was in the field. You can go ahead and take it away now. No. He tried to destroy it. He grabbed it and ate it to get rid of the evidence. That lends itself to the reasonable inference that he was trying to smuggle it into the jail in the first place."
Defendant challenges the sufficiency of the evidence to support a finding that he violated section 4573.
"Except [when authorized], any person, who knowingly brings or sends into, or knowingly assists in bringing into, or sending into, any state prison . . . or into any county, city and county, or city jail . . . or within the grounds belonging to the institution, any controlled substance . . . is guilty of a felony punishable by imprisonment in the state prison for two, three, or four years. [¶] The prohibitions and sanctions addressed in this section shall be clearly and prominently posted outside of, and at the entrance to, the grounds of all detention facilities under the jurisdiction of, or operated by, the state or any city, county, or city and county." (§ 4573.)
After the opening appellate brief and response brief were filed in this case, the California Supreme Court issued two decisions on the validity of applying section 4573 to arrestees who are compelled to enter the jail.*fn5 (People v. Low (2010) 49 Cal.4th 372 (Low); People v. Gastello (2010) 49 Cal.4th 395 (Gastello).) In both Low and Gastello, the California Supreme Court rejected challenges to section 4573 convictions by arrestees who were brought into the jail. In his reply brief, defendant contends that Low and Gastello support his challenge to the sufficiency of the evidence. Low and Gastello provide the definitive interpretation of section 4573, and they do not support defendant's claim.
Low was arrested while driving a stolen truck. (Low, supra, 49 Cal.4th at p. 377.) He was informed by the arresting officer that it was illegal to bring a controlled substance into the jail, and he denied that he had any such substance in his possession. During a subsequent inventory search at the jail, methamphetamine was found tucked into Low's sock. (Low, at pp. 375, 377-378.) Low claimed that section 4573 "does not apply to someone, like him, who happens to possess a controlled substance when arrested for another crime, and who was brought into jail involuntarily in order to be booked pursuant to that arrest."*fn6 (Low, at p. 381.) The California Supreme Court rejected this claim. "California courts have long assumed that arrestees and other persons in custody can violate section 4573, and 'bring[ ]' a controlled substance into jail, when the entry is officially compelled and drugs are secreted on their person." (Low, at p. 383.) "The critical factors are the lack of any compulsion to bring contraband inside, and the rejection of a clear opportunity to avoid doing so by voluntarily relinquishing the forbidden object or substance before entering the premises. . . . [S]uch volitional conduct falls within the parameters of section 4573." (Low, at p. 384.) "Defendant entered jail in the possession of methamphetamine that he had previously secreted on his person. Hence, he committed the act that section 4573 proscribes." (Low, at p. 385.)
The court reached a similar conclusion in Gastello. Gastello was arrested for being under the influence and transported to the jail. The arresting officer told him that it was a felony to bring drugs into the jail. (Gastello, supra, 49 Cal.4th at pp. 398-399.) During an inventory search at the jail, a bindle containing methamphetamine was found in Gastello's clothing. (Gastello, at p. 399.) Gastello was convicted of violating section 4573. The Court of Appeal overturned his conviction on the grounds that he had neither committed the proscribed act, because his presence in the jail was involuntary, nor harbored the requisite intent because he did not intend to enter the jail. (Gastello, at p. 401.) The California Supreme Court, relying on Low, reversed the Court of Appeal. "Low finds it immaterial that the defendant was in custody and not present by choice in jail. The critical fact is that an arrestee has the opportunity to decide whether to purge himself of hidden drugs before entering jail, or whether to bring them inside and commit a new crime under section 4573." (Gastello, at p. 402.) "Low demonstrates that the proscribed act is 'knowingly' performed under section 4573 where the person knew when he entered jail that he possessed a controlled substance." (Gastello, at pp. 402-403.)
Defendant claims that he did not commit the act proscribed by section 4573. He claims that Low and Gastello are distinguishable because both Low and Gastello were warned by the arresting officers that bringing drugs into the jail was prohibited. While defendant correctly points out a factual distinction between this case and those two cases, this factual distinction is irrelevant to his claim that he did not commit the proscribed act. The proscribed act is entering the jail with a controlled substance secreted on one's person. (Low, supra, 49 Cal.4th at pp. 383-385.) "[It is] immaterial that the defendant was in custody and not present by choice in jail. The critical fact is that an arrestee has the opportunity to decide whether to purge himself of hidden drugs before entering jail, or whether to bring them inside and commit a new crime under section 4573." (Gastello, supra, 49 Cal.4th at p. 402.)
Defendant contends that, in the absence of a warning that bringing drugs into the jail is prohibited, he lacked any "opportunity . . . to purge himself of hidden drugs before entering the jail." Not so. A warning is not necessary to provide an opportunity for a defendant to purge himself of the drugs. Here, after defendant was arrested, defendant spoke to the arresting officer and was pat searched. He knew that he had the bindle secreted on his person and that he was about to be transported to jail. Thus, at this point, he had an "opportunity" to "purge himself" of the bindle by informing the arresting officer of its presence before being taken into the jail. Defendant's reliance on the absence of an explicit warning by the arresting officer is misplaced. A warning might be relevant to the recipient's mental state, but no warning can change the nature of an act.*fn7 Warned or unwarned, an arrestee who brings drugs into a jail commits the prohibited act unless he or she lacked any opportunity to disclose the presence of the drugs or discard the drugs before being brought into the jail. As substantial evidence supports a finding that defendant had such an opportunity, we reject defendant's claim that he did not commit the proscribed act.
Defendant also contends that he lacked the requisite intent. The requisite intent is knowledge. "[T]he proscribed act is 'knowingly' performed under section 4573 where the person knew when he entered jail that he possessed a controlled substance." (Gastello, supra, 49 Cal.4th at pp. 402-403.) Defendant "does not dispute" that he knew he had the cocaine in his possession when he entered the jail. His claim is that he lacked "an intent to bring cocaine into [the] jail." Low and Gastello rejected the claim that section 4573 requires such an intent. Therefore, we must reject defendant's claim.
Substantial evidence supports the jury's finding that defendant ...