People v. Berg
| Decision Date | 25 May 2018 |
| Docket Number | H043511 |
| Citation | 233 Cal.Rptr.3d 629,23 Cal.App.5th 959 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Andrew Marshall BERG, Defendant and Appellant. |
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 for Plaintiff/Respondent The People.
Seth Flagsberg, Attorney at Law, Under Appointment by the Court of Appeal for Defendant/Appellant Andrew Marshall Berg.
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.
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.)
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, 110 Cal.Rptr.3d 640, 232 P.3d 635 ( 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.
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 be by themselves, or ... a mental issue or he's just being difficult upon intake."
The deputy escorted defendant to the booking area, where inmates change out of their civilian clothes and are given jail clothing after a visual strip search. As defendant changed out of his civilian clothes, he reached toward his "anus" and started "[d]igging, trying to push or pull something." The deputy noticed plastic wrapping between defendant's buttocks. Defendant eventually threw the plastic package onto the floor. The deputy recalled that when defendant was asked what was in the plastic, defendant sarcastically answered "to the effect of, ‘Something not readily available at your local 7-Eleven.’ "
The deputy unwrapped the plastic, which had feces on it, and found a bindle containing a clear crystalline substance that the deputy believed was methamphetamine based on his training and experience. The substance weighed approximately 0.2 grams, was the size of a "big pea," and looked to the deputy like it contained enough material to allow someone to snort it. A criminalist testified as an expert in controlled substance testing and confirmed that the substance contained methamphetamine.
The jury found defendant guilty as charged. The trial court sentenced defendant to the low term of two years for possessing a controlled substance in jail, finding that due to his former military service defendant had a mental or physical condition which mitigated his culpability. ( §§ 4573.6, subd. (a), 1170, subd. (h)(1).) (The abstract of judgment incorrectly indicates that the trial court imposed a middle term, which we will order modified.) The trial court ordered that one year of the sentence be served in county jail and that execution of the second year be "suspended and deemed a period of mandatory supervision" under section 1170, subdivision (h)(5)(B).
To prove a violation of section 4573.6, the prosecution had to show that defendant possessed methamphetamine in the jail; defendant knew he possessed the methamphetamine; defendant knew that the methamphetamine was a controlled substance; and that the methamphetamine was in a usable amount. ( § 4573.6, subd. (a) ; People v. Carrasco (1981) 118 Cal.App.3d 936, 944–948, 173 Cal.Rptr. 688.) We note that defendant was not charged with violating section 4573, which prohibits bringing a controlled substance into a penal institution. (§ 4573, subd. (a).)
Defendant contends the trial court abused its discretion by excluding evidence of his intoxication when he entered the jail, which he argues was relevant to whether he knowingly possessed a controlled substance in jail. We review a trial court's decision to exclude evidence under Evidence Code sections 350 and 352 for abuse of discretion. ( People v. Kelly (1992) 1 Cal.4th 495, 523, 3 Cal.Rptr.2d 677, 822 P.2d 385 [ Evid. Code, § 350 ]; People v. Thomas (2011) 51 Cal.4th 449, 485, 121 Cal.Rptr.3d 521, 247 P.3d 886 [ Evid. Code, § 352 ].) Implicit in defendant's abuse of discretion argument is a contention that his intoxication was admissible to raise a reasonable doubt about the knowledge elements of section 4573.6. We requested supplemental briefing regarding whether sections 4573 and 4573.6 are general intent crimes and, if so, whether section 29.4 makes evidence of defendant's voluntary intoxication inadmissible.
Defendant concedes that " Penal Code sections 4573 and 4573.6 are general intent offenses." Defendant nonetheless argues that evidence of his voluntary intoxication was admissible under section 29.4 because the "classification of a crime as one of general intent has nothing to do with the required element of knowledge, a specific mental state." To reveal the flaw in defendant's argument, we begin with a brief discussion of general intent versus specific intent classification.
The Supreme Court explained the history of differentiating between general and specific intent crimes in People v. Hood (1969) 1 Cal.3d 444, 82 Cal.Rptr. 618, 462 P.2d 370 ( Hood ). Before the 19th century, "the common law refused to give any effect to the fact that an accused committed a crime while intoxicated." ( Id. at p. 455, 82 Cal.Rptr. 618, 462 P.2d 370.) "[A]pparently troubled by this rigid traditional rule," judges began to consider whether intoxication might negate intent when intent was an element of a crime. ( Id. at pp. 455–456, 82 Cal.Rptr. 618, 462 P.2d 370.) But to keep that exculpatory doctrine from consuming the traditional rule entirely—because "some form of mens rea is a requisite of all but strict liability offenses"—courts began to draw a distinction between "so-called specific intent and general intent crimes." ( Id. at p. 456, 82 Cal.Rptr. 618, 462 P.2d 370.) Thereafter, voluntary intoxication was admissible regarding specific intent crimes, but not admissible regarding general intent crimes.
The Hood court acknowledged that specific intent and general intent "have been notoriously difficult terms to define and apply," but described general intent as: "When the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence."
( Hood , supra , 1 Cal.3d at pp. 456–457, 82 Cal.Rptr. 618, 462 P.2d 370.) By contrast, when the "definition refers to defendant's intent to do some further act or achieve some additional...
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...on the ground Reyes is based on authorities that are either inapposite or no longer have precedential effect. (See People v. Berg (2018) 23 Cal.App.5th 959, 968-969.) Even if we assume Reyes has some value with respect to the issue before us, however, there was evidence in that case concern......
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