Filed 9/27/18 P. v. Zerschling CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, John Conley, Judge. Affirmed.

William G. Holzer, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted defendant Michael Joseph Zerschling of smuggling a controlled substance into a correctional facility (Pen. Code, § 4573 [count 1]); all statutory references are to the Penal Code unless otherwise stated), and possession of controlled substance paraphernalia (Health & Saf. Code, § 11364, subd. (a) [count 2]). Zerschling contends there was insufficient evidence to support his conviction on count 1 and seeks independent review of the trial court’s Pitchess ruling (Pitchess v. Superior Court (1974) 11 Cal.3d 531). For the reasons stated below, we affirm the judgment.

I.

Facts

In June 2017, two police officers, Peter Glynn and Charles Remington, responded to a call about a person sleeping in a truck parked in a residential neighborhood. The officers found the truck in front of a house. A camper shell covered the truck bed, and blankets covered the windows. Officer Glynn knocked on the back of the truck a few times and asked whoever was inside to come out. Zerschling eventually came out of the truck wearing a baggy sweatshirt.

Zerschling refused Officer Glynn’s request for a patdown search of Zerschling’s outer clothing. Because Glynn could not see if anything was hidden under Zerschling’s sweatshirt, he proceeded to patdown Zerschling to search for weapons. When Glynn tried to search near Zershcling’s groin, he pulled out of Glynn’s grip and said, “Don’t touch me there.” The officers then sat Zerschling on the curb.

Officer Glynn noticed Zerschling’s license plate was expired and asked Zerschling for his name so Glynn could issue a citation. After Zerschling refused to provide his name, Glynn searched the truck and found Zerschling’s identification and a methamphetamine pipe. Glynn then arrested Zerschling for possession of narcotic paraphernalia and attempted to search him a second time. As Glynn reached near Zerschling’s groin area, Zerschling became combative and tried to pull away. Glynn did not find anything during the search.

Officer Glynn transported Zerschling to the Huntington Beach Police Department. Upon arrival, both officers walked Zerschling to a small cage in front of the jail. Glynn pointed to a sign stating it was a felony to bring any drugs or paraphernalia into the jail, and then informed Zerschling, “It’s a felony to bring any drugs or paraphernalia into the jail. Do you understand?” Zerschling nodded his head and said, “Yes.” Glynn also asked if Zerschling had anything on him, and Zerschling shook his head and said, “No.”

Inside the jail, Officer Glynn received approval to do a strip search due to Zerschling’s demeanor and discovery of the methamphetamine pipe. Zerschling became frustrated and stated he already had been searched. During the strip search, officers found a bag containing methamphetamine taped to Zerschling’s groin.

As noted above, the jury found Zerschling guilty on all counts. The trial court placed Zerschling on three years formal probation with various terms and conditions, including 180 days in county jail.

II.

Discussion

A. Substantial Evidence Supports Zerschling’s Conviction for Bringing Methamphetamine into Jail

Zerschling challenges the sufficiency of the evidence to support his conviction for bringing a controlled substance into jail. Specifically, he argues insufficient evidence showed he willfully brought methamphetamine into jail because he had been arrested and transported involuntarily. We disagree.

The test for sufficiency of the evidence is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) We must accept logical inferences the jury might have drawn from the circumstantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 396.) To set aside the judgment for insufficiency of the evidence, it must be clear “that upon no hypothesis whatever is there sufficient substantial evidence to support it.” (People v. Redmond (1969) 71 Cal.2d 745, 755.) “If the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.]” (People v. Albillar (2010) 51 Cal.4th 47, 60.)

Section 4573, subdivision (a), makes it a felony for “any person” to “knowingly bring[ ] . . . into any . . . city jail . . . any controlled substance” he is not authorized to possess. The statute does not require specific intent to smuggle drugs into jail. (People v. Low (2010) 49 Cal.4th 372, 386 (Low).) Instead, “the act that must be ‘knowingly’ performed . . . involves entering a prison or jail in the possession of a controlled substance.” (Ibid.) This “simply requires an awareness of both its physical presence and narcotic character.” (Ibid.)

Here, the jury reasonably could find Zerschling knowingly brought methamphetamine into jail. Substantial evidence showed Zerschling had a bag of methamphetamine taped to his groin, and he pulled away when Glynn tried to search near his groin during the patdown and search incident to arrest. He also had the opportunity to purge himself of the methamphetamine before entering jail. Glynn warned him it would be a felony to bring any drugs into the jail. In response, Zerschling said he understood and did not have anything on him. Viewed in the light most favorable to the judgment, the evidence supports finding Zerschling acted with the mental state contemplated by section 4573.

Our Supreme Court has upheld convictions under facts legally indistinguishable from those of the instant case. In Low, an officer arrested the defendant for driving a stolen vehicle and conducted a patdown search revealing no contraband or weapons. (Low, supra, 49 Cal.4th at p. 375.) Outside of the jail, the officer warned the defendant it was illegal to bring a controlled substance into the facility. (Ibid.) The defendant denied having any drugs, but during the booking process, officers found a bag of methamphetamine tucked inside the defendant’s sock. (Ibid.) Our Supreme Court found the defendant knowingly brought the methamphetamine into jail because he “carried the packet inside the band of his sock, outside the plain view and easy reach of others” and “ignored an express warning by the arresting officer that controlled substances could not lawfully be brought into jail.” (Id. at p. 387.) In reaching this conclusion, the court rejected the defendant’s argument that he could not have “knowingly” brought drugs into jail because he was arrested. (Id. at pp. 383-387.)

In People v. Gastello (2010) 49 Cal.4th 395 (Gastello), an officer arrested the defendant for being under the influence of a controlled substance. The officer initially stopped the defendant for riding his bicycle on a dark street without lights on his bike. (Id. at p. 398.) The defendant was holding a knife, spoke at a rapid pace, and made certain odd statements. (Ibid.) The officer suspected the defendant was hiding something and noticed his pupils were too constricted for the lighting conditions. (Ibid.) The officer then arrested the defendant and conducted a patdown search, which did not reveal anything. (Id. at pp. 398-399.) Outside of the jail, the defendant said he understood after the officer warned him it was a felony to bring drugs inside the facility. (Id. at p. 399.) Inside the jail, the defendant placed his belongings on the table for inspection and warned the officer not to touch them. (Ibid.) The officer moved his sweatshirt and found a bag of methamphetamine. (Ibid.) In holding the defendant knowingly brought drugs into jail, our Supreme Court reiterated Low’s holding that it was “immaterial that the defendant was in custody and not present by choice in jail.” (Id. at p. 402.) Instead, the court found “[t]he critical fact is that an arrestee has the opportunity to decide whether to purge himself of hidden drugs before entering jail, or whether to bring them inside and commit a new crime under section 4573.” (Ibid.)

Zerschling argues Low and Gastello are distinguishable because Officer Glynn suspected Zerschling was hiding something. According to Zerschling, the officer in Low “did not suspect . . . the defendant had a controlled substance on his person.” Zerschling also claims the officer in Gastello “did initially suspect . . . the defendant was hiding something, [but] an in-field search revealed nothing, and . . . the contraband was found during the routine booking process.” Because Glynn suspected Zerschling was hiding something and requested a strip search, Zerschling argues Glynn “compelled and arguably manufactured the offense” similar to the officers in Martin v. State (1944) 31 Ala.App. 334. The argument lacks merit.

In Martin, which is not binding authority, the court found the officers manufactured the crime because they took the intoxicated defendant outside of his home and brought him onto a pubic highway. (Martin v. State, supra, 31 Ala.App. at p. 335.) While outside, the defendant spoke loudly and used profanity in violation of state law. (Ibid.) As the Low court explained, Martin is distinguishable because “every part of the alleged criminal transaction was deemed involuntary.” (Low, supra, 49 Cal.4th at p. 385.) While the Low court also noted there was no evidence the officer suspected the defendant had any drugs, the court’s holding primarily depended on the defendant’s opportunity to avoid violating section 4573. (Low, supra, 49 Cal.4th at p. 385.) Here, regardless of Glynn’s suspicions, he gave Zerschling the opportunity to avoid violating section 4573. Glynn summarized a sign outside of the jail, advised Zerschling it was illegal to bring drugs into the jail, and asked if he had anything on him. Despite this warning, Zerschling brought methamphetamine into the jail. Unlike Martin, “nothing supports [Zerschling’s] suggestion that he was forced to bring drugs into jail, that commission of the act was engineered by the police, or that he had no choice but to violate section 4573.” (Ibid.)

Finally, Zerschling argues Low and Gastello “were wrongly decided” because a defendant’s “guilt cannot be based on his failure to incriminate himself before entering the jail.” According to Zerschling, he had a “Fifth Amendment right to remain silent . . . [so] the violation cannot rest on his failure to say he had contraband . . . . [T]he officer [also] was unlikely to remove [Zerschling’s] restraints and give him an opportunity to wordlessly remove the drugs.” The Low court rejected this precise argument. The court held “[n]othing in section 4573 requires a person in defendant’s situation to “‘speak his guilt”’ of any crime.” (Low, supra, 49 Cal.4th at pp. 390-391.) Instead, “liability under the statute is premised on the nontestimonial act of ‘knowingly bring[ing]’ prohibited drugs into a correctional facility.” (Id. at p. 391.) Thus, the statute “does not implicate Fifth Amendment protections against compelling an arrestee to be a ‘witness’ against himself.” (Ibid.; see also Gastello, supra, 49 Cal.4th at p. 398 [“[S]ection 4573 involves no compelled incriminating testimony for Fifth Amendment purposes.”].) As an intermediate appellate court, we are bound by the Supreme Court’s holding (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), and consequently Zerschling’s challenge fails.

B. The Trial Court Did Not Abuse Its Discretion by Denying Pitchess Discovery

Before trial, Zerschling moved to discover the personnel records of Officers Glynn and Remington. The trial court found good cause to review the officers’ files (People v. Samuels (2005) 36 Cal.4th 96, 109), conducted an in camera review (Evid. Code, § 1045, subd. (b)), and found no discoverable items (see People v. Mooc (2001) 26 Cal.4th 1216, 1226-1232 (Mooc)).

The parties agree we should independently review the confidential proceedings. (See Mooc, supra, 26 Cal.4th at p. 1229.) We have reviewed the sealed transcript of the in camera hearing. The trial court placed under oath the Huntington Beach Police Department’s custodian of records, Officer Jonathan Haught. Haught provided the records falling within the parameters of the request. The court examined the files with Haught on the record, in the presence of the city attorney, and identified the documents it reviewed. The court found nothing in the records reflecting adversely on the officers’ credibility, honesty, or veracity. We agree with the court. Consequently, the court did not abuse its discretion in ruling there were no discoverable items in the officers’ files. (Becerrada v. Superior Court (2005) 131 Cal.App.4th 409, 413.)

III.

Disposition

The judgment is affirmed.

ARONSON, ACTING P. J.

WE CONCUR:

IKOLA, J.

GOETHALS, J.