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People v. Berg

California Court of Appeals, Sixth District

May 25, 2018

THE PEOPLE, Plaintiff and Respondent,
v.
ANDREW MARSHALL BERG, Defendant and Appellant.

          Monterey County Superior Court, Case No.: SS151835A Hon. Andrew G. Liu Judge

          Xavier 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

          Seth Flagsberg Attorney at Law Under Appointment by the Court of Appeal Attorneys for Defendant/Appellant Andrew Marshall Berg:

          Grover, J.

         A jury 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.

         Trial Court Proceedings

         When 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.)

         Pretrial Motions

         In the 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. (f)).

         In 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.

         Citing 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 4573.6.

         Trial

         The 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.

         A 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 ...


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