The People v. Gastello, S153170.

• Decision Date: 11 August 2010
• Docket Number: No. S153170.,S153170.
• Citation: 110 Cal.Rptr.3d 658,232 P.3d 650,49 Cal.4th 395
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent,v.Tommy GASTELLO, Defendant and Appellant.

49 Cal.4th 395

232 P.3d 650

110 Cal.Rptr.3d 658

The PEOPLE, Plaintiff and Respondent,v.Tommy GASTELLO, Defendant and Appellant.

No. S153170.

Supreme Court of California

June 24, 2010.

Rehearing Denied Aug. 11, 2010.

Linnéa M. Johnson, Sacramento, under appointment by the Supreme Court, and Janice Wellborn, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Locker and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves and Dane R. Gillette, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Janet Neeley, Brian Alvarez and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.

BAXTER, J.

This case presents issues related to those we decide today in People v. Low (2010) 49 Cal.4th 372, 110 Cal.Rptr.3d 640, 232 P.3d 635 ( Low ), concerning Penal Code section 4573.¹ As pertinent here, this statute, which is part of a larger scheme regulating crimes in prison and jail, makes it a felony for “any person” to “knowingly bring[ ]” a controlled substance into a custodial setting.

In Low, we conclude that the statute applies to someone who has a controlled substance in his possession when arrested for another crime, and who knowingly and voluntarily brings the drugs into jail when booked pursuant to that arrest. Low relies on the language and history of section 4573, and on similar statutes banning contraband in custody, to find that the statute does not exempt persons who enter jail under the specified circumstances, including arrestees.

Low also rejects a claim that section 4573 implicates the Fifth Amendment privilege against compulsory self-incrimination because the arrestee must choose before entering jail between admitting unlawful drug possession or violating section 4573 and risking greater penalties. As Low explains, a violation of section 4573 does not involve compelled self-incriminating “testimony,” but rather the nontestimonial act of “knowingly bring[ing]” drugs into a correctional facility. The statute simply prohibits a person detained and brought to jail for one crime from entering and committing a new drug-related crime inside.

Here, the Court of Appeal reversed the section 4573 conviction for reasons that deviated from our reasoning in Low today. The court concluded that the statute does not apply to arrestees brought into jail with controlled substances secreted on their person because they are not present by choice or pursuant to an intent to smuggle drugs. The court further indicated that the statutory scheme raises concerns about self-incrimination under the Fifth Amendment insofar as it coerces arrestees to admit that they possess drugs, and punishes them more harshly if they fail to do so and instead bring the drugs into jail.

We disagree with both the reasoning and conclusions of the Court of Appeal. Under Low, an arrestee's “involuntary” presence in jail does not negate the elements of the crime or make prosecution unconstitutional. Section 4573 was intended to apply in this situation, such persons have a choice not to violate its terms, and strong reasons exist for not allowing them to freely bring drugs into jail. The facts of this case demonstrate-perhaps even more clearly than in Low-that section 4573 involves no compelled incriminating testimony for Fifth Amendment purposes. Unlike in Low, where the defendant falsely denied possessing any drugs at the jail entrance, defendant here said nothing substantive in response to the arresting officer's warning about bringing drugs with him. Any difficulty defendant faced in making this choice was largely of his own making. He committed a nontestimonial act for which he was not immune from prosecution or conviction under section 4573.

Trial Court Proceedings

The trial concerned events that occurred in the City of Hanford on November 24, 2005, Thanksgiving night. Around 11:00 p.m., Officer Jennifer Machado was patrolling in her police car when she saw Tommy Gastello (defendant) and his adult son, Johnny, riding bicycles on a dark street. Because she saw no lights on their vehicles as required by law, Machado stopped the pair outside an apartment complex. Defendant was holding a knife in one hand as he grasped the handlebar-an act that Machado did not perceive as threatening or unlawful. However, defendant seemed agitated, and insisted that Machado justify the stop. Meanwhile, two other officers arrived. One of them spoke with Johnny.

While engaged in conversation with defendant, Officer Machado suspected that he was “hid[ing] something.” He spoke at a rapid pace and made odd, spontaneous statements (e.g., “These pants don't belong to me”). Based on a preprinted card she had been trained to use for this purpose, Machado determined that defendant's pupils were too constricted and rigid for the lighting conditions. As a result, she arrested him for being under the influence of a controlled substance.²

For safety reasons, Officer Machado took the knife from defendant's hand. She also patted down the outside of his clothes, and looked inside his pockets and waistband for additional weapons. Nothing was found. Machado placed defendant in the patrol car, and drove him to the Kings County jail.

Before entering the jail parking lot, Officer Machado stopped the car and looked at defendant. She said that “it was a felony to bring any narcotics, any drugs or any weapons into the jail.” She asked whether he understood this statement. Defendant's only response was “yes.”

Inside the jail, Officer Machado monitored the booking process. It entailed a brief medical screening, removal of defendant's outerwear, including a sweatshirt, and an inventory search of his property. In the presence of both Machado and jail staff, defendant placed his belongings on the table for inspection. All of sudden, he warned Machado not to touch them, saying, “I have fleas. I have fleas.” As she reached for his sweatshirt, defendant said, “What's that?” Machado moved the sweatshirt and saw a small bindle, wrapped in plastic, containing a crystal-like substance. Defendant remarked, “You planted that on me.”

Chemical analysis revealed that the bindle found in defendant's sweatshirt held .32 grams of methamphetamine. The criminalist who performed the testing determined that the substance was a usable amount. In addition, a toxicologist analyzed a blood sample that had been taken from defendant in jail. The sample contained both methamphetamine and morphine. The drugs were present in sufficiently high amounts that would render the person under the influence of a controlled substance, and were consistent with “speed balling”-mixing a stimulant with a depressant for a “roller coaster” effect.

Defendant did not testify at trial. His son, Johnny, who witnessed the arrest, and defendant's wife, Kathy, who watched it from an apartment window, described the actions of the police that night. Kathy admitted that defendant had a “history” of using methamphetamine and opiates, but she did not see him take any drugs that day. Johnny, who had a prior felony conviction for drug possession, also saw no sign that defendant was under the influence of drugs before his arrest.

A jury convicted defendant, as charged, of three counts. Two of them were felonies, namely, possessing a controlled substance, methamphetamine, under Health and Safety Code section 11377, subdivision (a), and bringing a controlled substance into jail under section 4573.³ The third count involved being under the influence of a controlled substance in violation of Health and Safety Code section 11550, subdivision (a), a misdemeanor.

In a bifurcated proceeding, defendant admitted that he sustained a prior serious felony conviction for burglary in 1994 (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and served a prior prison term. (§ 667.5, subd. (b).) At sentencing, the trial court expressed concern over defendant's long record as “a career dope addict.” The court noted that while only a modest amount of methamphetamine was involved in the present case, defendant rejected an opportunity to avoid violating section 4573 by ignoring the officer's advice against bringing drugs to jail. Defendant received a total prison sentence of seven years, which included concurrent middle terms for both felony counts.

Court Of Appeal Decision

On appeal, defendant challenged his conviction under section 4573. He argued that because he was arrested and brought to jail on another charge, and because he was not present for the purpose of bringing drugs inside, he committed no criminal act and harbored no wrongful intent. Defendant further claimed that section 4573, as applied to him, violated the self-incrimination and due process clauses of the Fifth Amendment to the United States Constitution, and parallel provisions of the state Constitution. The basic theory was that he was coerced into bringing drugs into jail to avoid admitting that he unlawfully possessed them outside, and that he is being punished for exercising his right to silence absent any evidence of guilt.

In a partially published opinion, the Fifth District Court of Appeal accepted defendant's analysis and set aside the conviction. The panel made several key points in the process.

First, the Court of Appeal concluded that defendant did not perform any “affirmative act” proscribed by statute. The court observed that defendant was arrested for being under the influence of a controlled substance during a traffic stop, transported by patrol car to jail, and escorted inside by the arresting officer to undergo the booking process. The court further noted that defendant failed to say or do anything when told it was illegal to bring drugs inside. Defendant's role in this chain of events was described as one of pure “passivity and omission”; he reportedly “ did nothing” defined as criminal, and merely “submit[ted] to the lawful authority of the police.” According to the appellate panel,...