Filed 3/29/17 P. v. Chung CA1/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE



THE PEOPLE,
Plaintiff and Respondent,
v.
ROBERT WILLIAM CHUNG,
Defendant and Appellant.


A147892

(San Mateo County
Super. Ct. No. SC082752)


A jury convicted Robert William Chung, also known as Bobby William Wilcox, of one count of bringing a controlled substance into jail. (Pen. Code, § 4573, subd. (a).) The trial court suspended execution of a four-year prison sentence on the condition Chung complete a residential drug treatment program.
Chung appealed. His appointed counsel asked this court to review the record to determine whether there are any arguable issues. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Chung filed a supplemental brief. We have reviewed the record, and Chung’s supplemental brief, and we find no arguable appellate issues. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In an amended information, the People charged Chung with bringing a controlled substance into jail. (§ 4573, subd. (a).) The amended information alleged sentencing enhancements based on prior convictions. (§§ 1170.12, subd. (c)(1), 667.5, subd. (b).)
The court arraigned Chung, and granted him the right to represent himself at trial within the meaning of Faretta v. California (1975) 422 U.S. 806. Chung did not waive time, and his case was set for trial. Chung filed a motion requesting appointment of a private investigator, access to proper law library facilities, and telephone access. The court granted the requests within parameters to be established by the Sheriff.
The People moved to continue the trial based on the unavailability of the investigating officer. Chung did not object to the motion, and indicated he wished to file a motion to set aside the information. (§ 995.) Chung waived his right to a speedy trial, and the court continued the trial date.
The court denied Chung’s motion to set aside the information. The court also denied various other motions Chung filed relating to matters including law library privileges. However, the court granted Chung’s motion for return of his cell phone. Chung pled no contest to bringing a controlled substance into county jail, but he later withdrew the plea, and the case was again set for trial.
A. Prosecution Evidence
In January 2015, Deputy George Le of the San Mateo County Sheriff’s Office arrested Chung, and transported him to jail. The deputy searched Chung in the pre-booking area. Chung was handcuffed while being searched. Chung did not appear under the influence of a controlled substance or alcohol. The deputy found marijuana in the pocket of Chung’s jeans, and felt a bulge in Chung’s crotch area.
The deputy asked Chung about the bulge, and Chung said he was wearing two pairs of underwear. The deputy informed Chung he would be charged with felonies if he brought drugs into jail. The deputy took Chung to the jail’s intake area, and read Chung a warning sign based on section 4573. The deputy asked Chung if he understood the sign. Chung said he did. The deputy asked Chung if he had any items listed in the sign on his person. Chung was adamant he had no drugs.
Chung was taken to a search cell, where a correctional officer asked Chung if he had any drugs or weapons on him. Chung said he did not. The officer searched Chung, and found he was wearing two pairs of underwear: a pair of boxer briefs, and a female pair of underwear. Both pairs of underwear had a hole cut in them. Between the lining of the underwear, the officer found nine plastic baggies containing methamphetamine. Chung denied ownership of the items.
B. Defense Evidence
Chung operated a janitorial business. A manager of a restaurant hired Chung to do some work for the restaurant. After his arrest, Sergeant Henry Sutter of the San Mateo County Sheriff’s Department helped Chung call an attorney, call his investigator, and obtain access to the law library. Chung told the sergeant that, at the time of his arrest, Chung was “wasted,” out of his mind, and Chung “either forgot to tell the arresting officer that [he] had the drugs on [him], or [he was] afraid to, or [he] didn’t remember” because he was high. The sergeant denied telling Chung a jury would not find him guilty.
Chung testified Deputy Le arrested him around 3 a.m. at a 7-Eleven store near the restaurant where Chung had been working. Chung, who “did a little crystal,” was working on his bike near the store when the deputy recognized him. The deputy arrested Chung based on a warrant for his arrest. Chung “had meth” and “was high.” When the deputy asked Chung about his groin area, Chung replied “You want me to tell on myself?” At the time the deputy approached Chung and arrested him, Chung knew he had methamphetamine in his underwear.
Chung was placed in handcuffs, and he fell asleep in the police car. Chung did not recall much of what happened between then and being in the search room. Chung cut the hole in the women’s pair of underwear. Chung put the drugs in a slit in his underwear because he did not want “to get busted with possession,” and “to avoid detection” out in the street. After his arrest, Chung could not get rid of the drugs even if he wanted to because he was handcuffed. When at the jail, Chung did not try to swallow the drugs, hide them in his body, or pass them off to someone else. Chung did not tell the officers he had drugs because he did not want to incriminate himself.
C. Verdict and Sentence
The jury convicted Chung of bringing a controlled substance into county jail. At sentencing, Chung, assisted by counsel, moved to strike his prior strike conviction under People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The court granted the motion. The court suspended execution of a four-year prison sentence on the condition Chung waive his presentence custody credits and begin serving a one-year county jail sentence until such time as Chung entered and then completed a residential drug treatment program. The court imposed five years supervised probation, and various fines and fees, including a restitution fine of $300. (§ 1202.4.)
DISCUSSION
Appointed counsel filed a brief setting forth the facts of the case, and asking this court to review the record to determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d at p. 443.) Chung filed a supplemental brief raising four issues.
First, Chung argues the court denied him his right to a speedy trial. We are not persuaded. On March 30, 2015, when the court continued the trial date, Chung indicated he intended to file a motion to set aside the information, and he expressly waived his right to a speedy trial. (§ 1382, subd.(a)(2)(A).)
Second, Chung argues his section 4573 conviction violated his Fifth Amendment privilege against self-incrimination, and he did not intend to smuggle drugs into jail. These arguments fail because — as pointed out by the prosecution in its opposition to Chung’s motion to set aside the information — the California Supreme Court rejected these arguments in People v. Low (2010) 49 Cal.4th 372 (Low), and People v. Gastello (2010) 49 Cal.4th 395 (Gastello).
Third, Chung argues the court should have granted his pretrial request to suppress his statements to officers on the night of his arrest, or the court should have allowed him to argue the Fifth Amendment issue to the jury. The court denied Chung’s motion to suppress, and granted the People’s motion in limine precluding Chung from arguing section 4573 conflicted with the Fifth Amendment. Based on the California Supreme Court’s reasoning in Low, supra, 49 Cal.4th at pp. 381-393, and Gastello, supra, 49 Cal.4th at pp. 398-404, we find no error in the challenged rulings.
Fourth, Chung complains the prosecutor should have charged him with possession of methamphetamine, and, if so charged, the jury would not have convicted him of the charge of bringing a controlled substance into jail. We disagree with Chung’s contention. Courts must give “ ‘instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present . . . but not when there is no evidence that the offense was less than that charged. [Citations.]’ ” (People v. Breverman (1998) 19 Cal.4th 142, 154.) Here, based on the evidence, there was no obligation to charge possession, or to instruct the jury regarding a charge of possession. We find no arguable appellate issues.
DISPOSITION
The judgment is affirmed. 



_________________________
Jones, P.J.


We concur:

_________________________
Needham, J.

_________________________
Bruiniers, J.













A147892