People v. Blanco

• Decision Date: 24 February 2021
• Docket Number: E073176
• Citation: People v. Blanco, 61 Cal.App.5th 278, 275 Cal.Rptr.3d 558 (Cal. App. 2021)
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jonathan BLANCO, Defendant and Appellant.

61 Cal.App.5th 278

275 Cal.Rptr.3d 558

The PEOPLE, Plaintiff and Respondent,

v.Jonathan BLANCO, Defendant and Appellant.

E073176

Court of Appeal, Fourth District, Division 2, California.

Filed February 24, 2021

Kevin J. Lindsley, under appointment by the Court of Appeal, Pleasanton, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Heather B. Arambarri, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

MILLER, J.

A jury found defendant and appellantJonathon Blanco guilty of (1) bringing a controlled substance into a penal institution ( Pen. Code, § 4573 )¹ ; and (2) bringing a deadly weapon into a penal institution (§ 4574, subd. (a)).The trial court found defendant had suffered a prior strike conviction.(§§ 667, subds. (b)-(i),1170.12, subds. (a)-(d).)The trial court sentenced defendant to prison for a term of six years.²

Defendant raises two issues on appeal.First, defendant contends the trial court erred by failing to instruct the jury on the usable quantity element of the offense of bringing a controlled substance into a penal institution ( Pen. Code, § 4573 ).Second, defendant asserts the trial court erred by denying his request for the jury to be instructed on the allegedly lesser included offense of possession of a controlled substance ( Health & Saf. Code, § 11377, subd. (a) ).We reverse in part and affirm in part.

FACTUAL AND PROCEDURAL HISTORY

A.THE PEOPLE'S CASE

On January 6, 2018, San Bernardino County Sheriff's Deputy Dennis Flagg-Martin(the deputy) was working in the intake area of the West Valley Detention Center, which is a correctional facility.In the intake area, arrestees are searched, fingerprinted, and photographed.On that date, the deputy took defendant through the intake process.The deputy asked defendant"if he had any illegal drugs or weapons on him."Defendant did not respond.Defendant was cursing at staff and not answering questions.The deputy did not believe defendant was under the influence of drugs.

The deputy searched defendant and found, in defendant's left pants pocket, a bag containing methamphetamine, a knife, and a boxcutter.With the plastic bag, the methamphetamine weighed 0.1 gram.At a later date, a San Bernardino County Sheriff's criminalist ran three different tests on the methamphetamine and confirmed it was methamphetamine.The criminalist also weighed the methamphetamine, presumably without its packaging, and it weighed 0.01 gram.³Deputy West testified 0.1 gram of methamphetamine is a usable amount of the drug.

B. DEFENDANT'S CASE

Pursuant to an arrest warrant, City of Fontana Police OfficerJoshua Carreon arrested defendant on January 6, 2018.Upon searching defendant, Officer Carreon discovered a methamphetamine pipe in defendant's lower right pants pocket, near his shin.The pipe appeared to have been used.Officer Carreon did not believe defendant was under the influence of methamphetamine, although he may have been "coming down off methamphetamine."Officer Carreon found methamphetamine in defendant's computer bag.The methamphetamine in the computer bag was more than 0.1 gram; 0.1 gram was a usable amount of methamphetamine.Officer Carreon asked defendant"if he had anything else illegal on him, because it would be a felony if he took it to jail."Defendant did not respond to Officer Carreon.Officer Carreon drove defendant to West Valley Detention Center.

C.JURY INSTRUCTION

After the defense rested, the trial court said a discussion about jury instructions had occurred off the record.The court explained that counsel would conduct research that evening on "the appropriate elements for an instruction on a violation of Penal Code Section 4573" because there is not a standard jury instruction corresponding to that statute.

The next day, the court again said a discussion had occurred off the record concerning jury instructions.Defense counsel said she wanted to make a record regarding the discussion; she said she had requested an instruction concerning the allegedly lesser included offense of simple possession ( Health & Saf. Code, § 11377, subd. (a).)The People objected to the existence of a lesser included offense on the basis of the legal elements test.The trial court said, "The three of us researched this issue last evening, it doesn't pass the test, primarily because of the requirement that simple possession entails having a usable amount and bringing a controlled substance into a jail does have not [sic ] that element."The trial court denied defendant's request for the lesser included offense instruction.

In regard to the jury instruction for the charge of violating section 4573, the following discussion occurred:

"The Court: We've also agreed on the language that will be modified and read to the jurors as an instruction for 2747 to apply to controlled substances, correct?⁴

"[Defense Counsel]: Yes.

"[Prosecutor]: Yes.

"The Court: We've agreed on that language?

"[Defense Counsel]: Yes.

"[Prosecutor]: Yes."

For the charge of violating section 4573, the trial court instructed the jury as follows: "The defendant is charged in Count 1 with Bringing a Controlled Substance into a penal institution in violation of Penal Code section 4574[sic ].[¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1.The defendant brought a controlled substance, the possession of which is prohibited, into a penal institution, or onto the grounds of a penal institution.[¶] 2.The defendant knew that he was bringing a substance into a penal institution or onto the grounds of a penal institution.[¶] AND [¶] 3.The defendant knew that the substance was a controlled substance.[¶] A controlled substance means a drug, substance, or immediate precursor, including methamphetamine.[¶] A penal institution is a jail where prisoners of the state prison are located under the custody of prison officials, officers, or employees.⁵[¶]The People do not have to prove that defendant used or intended to use the controlled substance."

D.CLOSING ARGUMENT

In closing argument, in regard to defendant's knowledge that he possessed methamphetamine, the prosecutor said, "And the methamphetamine, it's a small amount of methamphetamine, granted, but if you look at the packaging and the plastic wrapping that came along with that controlled substance that Deputy Flagg-Martin testified was how he pulled it out of [defendant's] pocket.If you put your hand in there, you're going to feel that item.So common sense tells us that the direct evidence of him having those items in his pocket means that he knew they were there.He knew those items were located there when he was going onto that property."

During closing argument, defense counsel asserted it was possible defendant was under the influence of drugs during the arrest and booking process, and defendant may have believed Officer Carreon removed the methamphetamine, knife, and boxcutter from his pocket.Defense counsel asserted it was reasonable to conclude defendant was unaware he was bringing prohibited items into a penal institution.

DISCUSSION

A.USABLE QUANTITY INSTRUCTION

Defendant contends one of the elements of section 4573 is that the controlled substance be of an amount sufficient for use.Defendant asserts the trial court violated his federal constitutional rights by omitting that element from the jury instruction.

"The trial court has a sua sponte duty to instruct the jury on the essential elements of the charged offense."( People v. Merritt(2017)2 Cal.5th 819, 824, 216 Cal.Rptr.3d 265, 392 P.3d 421.)"All criminal defendants have the right to ‘a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.’ "( Ibid. )

We analyze section 4573, subdivision (a), to determine if a useable quantity is an element of the crime.We apply the de novo standard of review.We begin with " ‘the statutory language, giving it a plain and commonsense meaning.’ "( People v. Morrison(2019)34 Cal.App.5th 980, 989, 246 Cal.Rptr.3d 734.)We do not examine the "language in isolation, but in the context of the statutory framework as a whole in order to determine its scope and purpose."( Ibid. )"If the statutory language permits more than one reasonable interpretation, courts may consider other aids, such as ... legislative history, and public policy."( Ibid. )

Section 4573, subdivision (a), provides, "[A]ny person, who knowingly brings or sends into ... any county, ... or city jail ... any controlled substance, the possession of which is prohibited by Division 10(commencing with Section 11000) of the Health and Safety Code, any device, contrivance, instrument, or paraphernalia intended to be used for unlawfully injecting or consuming a controlled substance, is guilty of a felony."

The statute prohibits transporting "any controlled substance" into a correctional facility.The statute defines "any controlled substance" by referencing possession laws, in particular Health and Safety Code section 11000 et seq.Health and Safety Code section 11007 defines the term "controlled substance": " ‘Controlled substance,’ unless otherwise specified, means a drug, substance, or immediate precursor which is listed in any schedule in [Health and Safety Codes]ection 11054, 11055, 11056, 11057, or 11058."While the schedules describe quantities for some drugs, such as narcotics ( Health & Saf. Code, §§ 11056, subd. (e),11057, subd. (c)(1),11058, subd. (c) ), they do not specify quantities of stimulants such as methamphetamine ( Health & Saf. Code, § 11055, subd. (d) ).( Health & Saf. Code, §§ 11054 - 11058.)

Our Supreme Court has examined the phrase "any controlled substance" in regard to the quantity necessary to establish unlawful possession.In People v. Leal(1966)64 Cal.2d 504, 50 Cal.Rptr. 777, 413 P.2d 665(...