People v. Gutierrez

• Citation: 52 Cal.App.4th 380,60 Cal.Rptr.2d 561
• Decision Date: 28 January 1997
• Docket Number: Nos. E016015,E017122,s. E016015
• Court: California Court of Appeals Court of Appeals
• Parties: , 97 Cal. Daily Op. Serv. 695, 97 Daily Journal D.A.R. 1045 The PEOPLE, Plaintiff and Respondent, v. Adrian GUTIERREZ, Defendant and Appellant. In re Adrian GUTIERREZ, on Habeas Corpus.

Page 561

60 Cal.Rptr.2d 561

52 Cal.App.4th 380, 97 Cal. Daily Op. Serv. 695,

97 Daily Journal D.A.R. 1045

The PEOPLE, Plaintiff and Respondent, v. Adrian GUTIERREZ, Defendant and Appellant In re Adrian GUTIERREZ, on Habeas Corpus.

Nos. E016015, E017122.

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

Jan. 28, 1997.

Certified for Partial Publication ^*

Review Denied April 30, 1997.

[52 Cal.App.4th 382] Steven Schorr, La Jolla, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Janelle B. Davis, Supervising Deputy Attorney General, and Demetra P. Lewis, Deputy Attorney General, for Plaintiff and Respondent.

OPINION

RICHLI, Associate Justice.

After a jury trial, defendant Adrian Gutierrez (defendant) was convicted of possession of drug paraphernalia, namely, a hypodermic syringe, while in jail or prison (Pen.Code § 4573.6). Enhancement allegations that defendant had served two prior felony prison terms (Pen.Code, § 667.5, subd. (b)) were found true. Allegations for purposes of the "three strikes law" (Pen.Code, § 667, subds. (b)-(i)) that defendant had four prior serious or violent felony convictions were also found true. As a result, defendant was sentenced under the three strikes law to 25 years to life, plus one year on each of the two prior prison term enhancements, for a total of 27 years to life.

Defendant has filed both an appeal and a petition for writ of habeas corpus. We consolidated the habeas petition with the appeal for the limited purpose of deciding whether to issue an order to show cause.

In his petition for habeas corpus, defendant contends that the trial court erred by excluding evidence that a jail deputy--the only witness against him--lied, and tried to intimidate another deputy into lying, during an investigation into his alleged use of excessive force against jail inmates. Defendant also contends that his trial counsel rendered constitutionally ineffective assistance by failing to make an offer of proof regarding the deputy's intimidation attempt.

In defendant's appeal, he contends that the trial court erred by:

1. Failing to instruct the jury that a specific intent to use the syringe to inject a controlled substance was an element of the crime.

2. Denying defendant's motion for acquittal, which was based on lack of evidence that the syringe was operable.

3. Denying defendant's Trombetta motion, ¹ which was based on the People's failure to preserve the syringe.

4. Ruling that posting the provisions of the statute prohibiting possession of drugs or drug paraphernalia in jail was not an element of the crime.

5. Using defendant's prior convictions as "strikes," while also using the resulting prior prison terms as the basis for one-year enhancements.

6. Imposing two separate prior prison term enhancements, where the evidence showed that defendant's prior convictions resulted in only a single prison term.

7. Using prior convictions suffered before the effective date of the three strikes law as "strikes."

8. Imposing a "three strikes" term of 25 years to life where such a sentence constituted cruel and unusual punishment.

9. Refusing to exercise its discretion to strike defendant's prior felony convictions under Penal Code section 1385.

With respect to defendant's conviction, we find no error. With respect to defendant's sentence, the People concede that the trial court erred by imposing two one-year prior prison term enhancements (issue No. 6). In addition, we hold that the trial court erred by refusing to consider striking defendant's prior felony convictions (issue No. 9). Otherwise, we find no error.

I FACTUAL BACKGROUND

Deputy Ralph J. Waddy was the only witness at trial. Waddy supervised inmates at the West Valley Detention Center in Rancho Cucamonga. The detention center is used to hold accused persons during trial and before sentencing.

On March 24, 1994, when defendant was an inmate in the detention center, Waddy saw defendant make a "drug gesture" to another inmate. First, defendant put his right hand to his left, "as though injecting his arm with [a] needle." Next he pointed to himself, "as though he had some drug paraphernalia or ... drugs."

Waddy decided to relocate defendant, in order to break up any "drug connections" in defendant's unit. As part of the relocation, he searched defendant. He ordered defendant to remove his clothes, bend over, squat and cough. When defendant did so, Waddy saw a "plastic object" sticking out of defendant's anus.

At this point, Waddy signaled to another officer, who was able to look down into the room where the search was being conducted, and had him observe the rest of the search. Waddy told defendant to remove the plastic object and put it on the ground. It was a cellophane-wrapped package. Waddy, wearing plastic gloves, picked it up and opened it. Inside, he found an empty hypodermic syringe and needle. The back part of the needle had been cut off. Otherwise, it appeared to be an ordinary, commercially manufactured syringe.

Waddy did not book the syringe into evidence. Instead, he made a photocopy of it, then discarded it. He explained that people working in the property room had been getting stuck by "needles ... poking out of evidence bags." He did not test the syringe before discarding it.

When inmates are booked into the detention center, they are given a pamphlet listing the detention center's rules. These rules prohibit possession of a syringe.

II

DEFENDANT'S PETITION FOR WRIT OF HABEAS CORPUS ^**

III SPECIFIC INTENT TO USE THE SYRINGE TO INJECT A CONTROLLED SUBSTANCE

Defendant contends that the trial court erred by failing to instruct the jury that a specific intent to use the syringe to inject a controlled substance was an element of the crime.

Penal Code section 4573.6 (section 4573.6) provides, as pertinent here:

"Any person who knowingly has in his or her possession in any state prison, ... or in any county, city and county, or city jail, ... or any place or institution, where prisoners or inmates are being held under the custody of any sheriff, chief of police, peace officer, probation officer, or employees, ... any controlled substances, ... any device, contrivance, instrument, or paraphernalia intended to be used for unlawfully injecting or consuming controlled substances, without being authorized to so possess the same ..., is guilty of a felony punishable by imprisonment in the state prison for two, three, or four years.

"The prohibitions and sanctions addressed in this section shall be clearly and prominently posted outside of, and at the entrance to, the grounds of all detention facilities under the jurisdiction of, or operated by, the state or any city, county, or city and county."

The required mental state is "knowingly." The words "intended to be used" apply to the "device, contrivance, instrument, or paraphernalia." The passive "intended" need not refer to the intent of any particular person; in penal statutes, "intended" frequently refers to the intent of someone other than the defendant. For example, it is a felony willfully or maliciously to install an inoperable fire alarm system; "fire alarm system" is defined, in part, as a device "intended to cause an alarm or warning of fire." (Pen.Code, § 386, italics added.) This intent can hardly be that of the defendant. Similarly, it is a felony maliciously to place a substance hard enough to break a saw into a tree "intended to be harvested." (Pen.Code, § 593a, subd. (a), italics added.) The defendant's likely intent is that the tree not be harvested.

Section 4573.6 is related to, and to be construed together with, Penal Code sections 4573 and 4573.5, which prohibit bringing or sending drugs or drug paraphernalia into a prison or jail. (People v. Buese (1963) 220 Cal.App.2d 802, 807, 34 Cal.Rptr. 102.) Obviously, the ultimate evil with which the Legislature was concerned was drug use by prisoners. Nevertheless, it chose to take a prophylactic approach to the problem by attacking the very presence of drugs and drug paraphernalia in prisons and jails. (See People v. Waid (1954) 127 Cal.App.2d 614, 617, 274 P.2d 217.)

In People v. Rodriquez (1975) 50 Cal.App.3d 389, 123 Cal.Rptr. 185, a case decided by this court, the defendant was convicted of possession of a deadly weapon in county jail (Pen.Code, § 4574). Another prisoner testified that he owned the weapon in question--a piece of razor blade--and that he used it for handicrafts. (Id., at p. 393, 123 Cal.Rptr. 185.) On appeal, the defendant argued that the specific intent to make violent use of the weapon was an element of the crime. (Id., at p. 394, 123 Cal.Rptr. 185.)

We disagreed: "Section 4574 proscribes possession, not use, as noted above. Therefore, the statute is concerned with the potential of the item in question. Reading the statute as a whole, it is evident the Legislature enacted no halfway measure. Effective protection of inmates and officers from armed attack depends upon prohibition of possession of all deadly weapons in jail. [Citation.] This valid legislative objective does not except weapons with dangerous capabilities which also have innocent uses.... [T]he statute '... serves an objective demanding relative inflexibility and relatively strict liability.... It is one of the "stringent statutes governing prison safety." [Citation.]' ... It is plain a razor blade's potential for use as a deadly weapon does not depend on an intended violent use.

"Evidence of harmless use by jail inmates, including defendant, may be relevant if it bears on the likelihood that an item will cause death or serious bodily injury. Such evidence is defensive, however. It is not necessary for the People to prove the item has no harmless use. Such a construction of section 4574 would effectively nullify its purpose." (People v....