Monterey County Superior Court, Case No.: SS151835A Hon.
Andrew G. Liu Judge
Becerra, Attorney General of California, Gerald A. Engler
Chief Assistant Attorney General, Jeffrey M. Laurence, Senior
Assistant Attorney General, Eric D. Share Supervising Deputy
Attorney General., Ronald E. Niver Deputy Attorney General
Attorneys for Plaintiff/Respondent
Flagsberg Attorney at Law Under Appointment by the Court of
Appeal Attorneys for Defendant/Appellant Andrew Marshall
convicted defendant Andrew Marshall Berg of knowingly
possessing methamphetamine in the Monterey County Jail (Pen.
Code, § 4753.6, subd. (a)). Defendant argues the trial
court abused its discretion by excluding evidence of
defendant's voluntary intoxication at the time of his
arrest almost two days before the methamphetamine was
discovered. Because evidence of voluntary intoxication is
inadmissible to negate the presence of general criminal
intent (Pen. Code, § 29.4, subd. (a)), we will find no
prejudicial error. We will modify a clerical error in the
abstract of judgment and affirm the judgment as modified.
defendant was searched in the Monterey County Jail almost two
days after his misdemeanor arrest, a sheriff's deputy
noticed plastic wrapping in between defendant's buttocks
that was later found to contain methamphetamine. Defendant
was charged with one felony count of knowingly possessing
methamphetamine in jail. (Pen. Code, § 4573.6, subd.
(a); unspecified statutory references are to this Code.)
felony case, the prosecution moved in limine to exclude
testimony about defendant's intoxication at the time of
his arrest for the underlying misdemeanor, citing Evidence
Code sections 350 and 352. According to the arresting
officer's report which was summarized in the motion, the
officer observed defendant cross a street with no regard for
traffic and then drink from a pint-sized bottle of whiskey.
Defendant smelled strongly of alcohol and had slurred speech.
He was arrested for public intoxication (§ 647, subd.
support of the motion, the prosecutor argued that because the
methamphetamine was discovered almost two days after
defendant entered the jail, “common knowledge”
dictated that defendant had “sufficient time to be
aware of what [was] going on” such that defendant's
intoxication when he entered the jail was irrelevant. Defense
counsel argued that the intoxication evidence was relevant to
defendant's ability to be aware of the presence of
contraband and that the jury should be allowed to determine
how intoxication might affect his knowledge. The court
granted the motion and excluded evidence of defendant's
intoxication, reasoning that intoxication two days before the
methamphetamine was found was minimally relevant to the issue
of defendant's knowledge that he possessed the contraband
when it was discovered.
People v. Low (2010) 49 Cal.4th 372, 384
(Low), defendant requested the following special
jury instruction: “The Defendant knew of the
substance's presence and had the opportunity to
voluntar[il]y relinquish it before it was located by law
enforcement.” The court denied the request, stating
that “to say that the defendant needed an opportunity
[to dispose of the contraband]... would be asking for
something that is simply not an element” of section
jail classification sergeant appeared as the custodian of
records for the jail. He testified that defendant entered the
jail at around 2:00 p.m. and was placed in a “safety
cell.” A safety cell has padded walls to prevent
inmates from hurting themselves, contains no furniture, and
has no toilet other than a hole in the ground covered with a
grate. After about 24 hours, defendant was moved to a
single-occupancy cell with a sink and a toilet. The sergeant
testified that a notation on a jail intake questionnaire
stated defendant was uncooperative and refused to answer
questions when he was moved to the single cell.
sheriff's deputy testified that he encountered defendant
roughly 48 hours after defendant entered the jail. Defendant
was in the same single cell he had been transferred to 24
hours earlier. The deputy explained that inmates are placed
in a single cell if there is “some kind of circumstance
going on... in which they need to ...