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The People v. Richard Munoz

February 5, 2013

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
RICHARD MUNOZ, JR., DEFENDANT AND APPELLANT.



(Super. Ct. No. 10F06036)

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

P. v. Munoz

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

While serving an indeterminate sentence in state prison, guards stopped defendant Richard Munoz, Jr., as he pushed a cart of his belongings while moving between cells. After guards found a green leafy substance in defendant's belongings, defendant gave a urine sample that tested positive for a metabolite of marijuana. An information charged defendant with knowingly possessing marijuana while incarcerated. (Pen. Code, § 4573.6.)*fn1 A jury found defendant guilty, and the court sentenced him to two years in state prison and imposed a restitution fine. On appeal, defendant challenges the admissibility of the urinalysis evidence. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

An information charged defendant with knowingly possessing marijuana while incarcerated in state prison. During the jury trial, the court granted the prosecution's in limine motion to admit urinalysis evidence. The court admitted the evidence for the purpose of showing the results and not to show any propensity or tendency to possess marijuana. The following evidence was introduced at trial.

In 2010 defendant was serving a sentence in state prison for a prior conviction. While moving from one cell to another, defendant pushed a cart containing his personal belongings. As defendant approached a gate between the prison's main yard and several buildings, Correctional Officer Steven Novikoff checked defendant's identification card. Another inmate helped defendant move the cart.

Novikoff was responsible for inspecting inmates' property when they passed through the prison gate. Prior to defendant's passing through the gate, Novikoff instructed him to submit to a search of the cart. While defendant stood to one side, Novikoff searched the cart. Some of the items were marked with defendant's name; others bore the name of his cellmate, Carrizosa.

Novikoff's search unearthed several unauthorized items, including a metal locker and cigarette lighters. As the search progressed, Navikoff found plastic wrap rolled up in a bindle and wrapped in a paper towel. Inside, Novikoff found a green leafy substance. Novikoff showed the bindle to a fellow correctional officer, Patrick Garrity, who confirmed it looked like a green leafy substance.

Novikoff asked defendant, "Is this your marijuana?" Defendant shrugged and said, "Yeah, it's mine." Garrity noticed defendant did not appear surprised when Navikoff asked about the marijuana. Garrity handcuffed defendant and took him to a holding cell.

Novikoff took the bindle to the prison's custody complex. He did not contact defendant's cellmate, Carrizosa, about the marijuana. Novikoff admitted that under normal circumstances he would be searching an individual inmate's property; it was unusual to search property where some belonged to one inmate and some belonged to another inmate.

Later that day, another correctional officer collected urine samples from both defendant and his cellmate, Carrizosa. A criminalist who conducted a urinalysis on both samples testified both samples ...


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