Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F09408
BLEASE , Acting P. J.
A jury convicted defendant Jesse Little Pearson of possession of controlled substances (heroin, cocaine, and methamphetamine) in a state prison. (Pen. Code, § 4573.6.) A jury also found true two prior strike convictions. The trial court sentenced defendant to 25 years to life in state prison. The sentence was ordered to run consecutive to defendant’s existing prison sentence.
Further undesignated statutory references are to the Penal Code.
On appeal, defendant claims the trial court erred in denying his motion to suppress (§ 1538.5) because the contraband search conducted by prison officials was cruel and unusual punishment in violation of the Eight Amendment to the United States Constitution, rendering the search unreasonable under the Fourth Amendment. Defendant also contends the trial court erred in using defendant’s juvenile adjudication as a prior strike under the Three Strikes Law. Disagreeing with defendant’s claims, we shall affirm the judgment.
FACTUAL BACKGROUND
Joseph Lewis, a correctional officer at California State Prison, Sacramento (the Prison), testified that a common method of passing drugs to inmates involves a visitor putting contraband in their mouth and passing it to the inmate during a kiss. The inmate swallows the contraband and later retrieves it by vomiting or defecating it out.
In June 2007, Officer Lewis was monitoring the visiting room at the Prison. He observed a female visitor, Charlotte Johnson, arrive to see defendant. Johnson waited for approximately 10 minutes in the visitors’ room, bought a soda from the vending machine, then left to go to the restroom.
As she left the restroom, she had to walk by Officer Lewis who noticed a “bulge” in Johnson’s cheek. Lewis stopped Johnson and asked her several questions, but she would not open her mouth to respond. Johnson, “fidgety,” returned to the visitors’ room where defendant was waiting for her. Before either said a word, Johnson gave defendant an “open-mouthed kiss,” after which Lewis saw a bulge in defendant’s cheek. Defendant then drank the soda previously purchased by Johnson and the bulge disappeared. Officer Lewis reported the incident to his supervisor, and defendant and Johnson were immediately escorted from the visitors’ room.
Defendant was then placed on contraband watch. On contraband watch, an inmate is dressed in one pair of socks, two layers of boxers and two layers of prison jumpsuits, taped on the fabric at the arms, waist, thighs and ankles and secured with waist and ankle chains, to prevent defendant from hiding or disposing of any contraband excreted from his body. The inmate is then placed in a nine-foot by five-foot cell, where the lights remain on 24 hours a day, and he is continually observed by a correctional officer.
The contraband watch cell contains a metal plank for the inmate to sleep on, and he is provided with a blanket but no mattress or pillow. The inmate is given three meals a day, and water whenever it is requested. Inmates on contraband watch are prohibited from showering, but are provided with a wash cloth and liquid soap to wipe themselves down. Should the inmate’s clothing become soiled or start to smell, he is given clean clothing.
While under contraband watch, each time the inmate needs to urinate or defecate, a second officer is called, the inmate’s clothing and shackles are removed, and he is escorted to a port-a-potty, which is lined with a bag to collect any feces. An inmate is generally released from contraband watch after “three, clear, significant bowel movements....”
Two days after defendant was placed on contraband watch, he told medical personnel at the prison that he had “ingested” seven balloons of heroin and was afraid one of them had burst. Defendant was examined by a physician who found defendant had “no symptoms of being under the influence of narcotics.” According to the doctor who examined him, “[defendant] did not ask to have the balloons taken out of his body through any medical intervention and none was offered.” Defendant was then returned to prison and the contraband watch cell where his health would be monitored by the registered nurse on staff at the prison.
On June 12, 2007, two days after being placed on contraband watch, defendant defecated and three balloons were found in his feces. The following day, defendant defecated again and another four balloons were found. Two days later, defendant defecated again and another balloon was found. All told, the officers found eight balloons: six contained heroin, one contained cocaine, and one contained methamphetamine, all in usable amounts.
DISCUSSION
I
Defendant filed a motion to suppress evidence pursuant to section 1538.5 and to dismiss the charges due to violations of the Eighth and Fourteenth Amendments to the United States Constitution. Defendant claimed the contraband watch conducted by the correctional officers was abusive and unreasonable because he should have been provided with greater medical oversight, the confinement was humiliating and “inhumane,” and he was denied access to proper hygiene. A hearing was held on defendant’s motion prior to trial and defendant’s motion was denied.
A. The Hearing on Defendant’s Motion To Suppress
Defendant testified that, while in the emergency room he asked to have his stomach pumped but his request was refused. However, in his stipulated statement, Dr. Grant Nugent averred that, while in the emergency room, “Pearson did not ask to have the balloons taken out of his body through any medical intervention and none was offered.”
Defendant described not being able to sleep during his time in the cell, because he could not get comfortable. He had no blanket with which to form a pillow, no air circulated through the cell, and it was hot. He testified that he was not able to brush his teeth every day or clean himself properly after urinating or defecating, and he described having to relieve himself at a port-a-potty where he could be seen by other inmates.
Defendant’s confinement in the contraband watch cell lasted nine days.
B. Analysis
Defendant claims the trial court erred in denying his motion to suppress. He claims the abusive manner in which the contraband search was conducted, including nine days of sleep deprivation resulting from the shackles, belly chain, metal bed with no mattress or pillow, and constant overhead light, in addition to the unhygienic conditions resulting from the prohibition of a shower or toothbrush.
The standard of review on appeal following denial of a motion to suppress is well settled. “[W]e defer to the trial court’s factual findings, but we independently apply the requisite legal standard to the facts presented.” (People v. Celis (2004) 33 Cal.4th 667, 679.)
The Eighth Amendment’s prohibition against cruel and unusual punishment protects prisoners against inhumane treatment or conditions of confinement. (Farmer v. Brennan (1994) 511 U.S. 825, 832 [128 L.Ed.2d 811, 822].) Treatment or conditions that involve “‘unnecessary and wanton infliction of pain’” (Rhodes v. Chapman (1981) 452 U.S. 337, 346 [69 L.Ed.2d 59, 68]), by officials acting with “‘deliberate indifference’” (Wilson v. Seiter (1991) 501 U.S. 294, 303 [115 L.Ed.2d 271, 282]), violate a prisoner’s Eighth Amendment rights. (See Austin v. Pa. Dept. of Corrections (E.D. Pa. 1995) 876 F.Supp. 1437, 1471.) Put another way, prison conditions “must not be devoid of legitimate penalogical purpose [citation], or contrary to ‘evolving standards of decency that mark the progress of a maturing society.’” (Morgan v. Morgensen (9th Cir. 2006) 465 F.3d 1041, 1045.)
Defendant does not deny the penalogical purpose in a contraband watch, but claims less intrusive measures should have been used. He claims the contraband watch process amounted to wanton and unnecessary infliction of pain in this case. On this record, we disagree.
Given a more complete record, with evidence of less intrusive means of obtaining the evidence without increasing the risk to defendant, we may have reached a different result.
The record contains ample evidence that pumping defendant’s stomach, giving him laxatives, or providing any medical assistance in expelling the ingested contraband was a greater risk to defendant than simply allowing nature to take its course. When defendant did express concern that a balloon of heroin may have burst inside him, he was immediately transported to the hospital, where he was examined by a medical doctor who determined that defendant “showed no symptoms of being under the influence of narcotics.” During the time he was on contraband watch, defendant was provided adequate food and water, and he had a registered nurse who checked on him daily.
On this record we cannot conclude that the contraband watch imposed on defendant was unnecessary. Therefore, defendant has not shown any violation of his Eighth Amendment rights.
For similar reasons, we also reject defendant’s claim the search was unreasonable for purposes of the Fourth Amendment.
“A prison has a compelling and uncontroverted interest in preventing the introduction into or the transporting throughout the prison of contraband and in maintaining order in the institution. A prisoner has a very limited reasonable expectation of privacy in regard to a search of his person. There is no requirement that a search be supported by either probable cause or reasonable suspicion; instead the relevant inquiry is whether under all of the circumstances the search was reasonable. And the determination of reasonableness depends, as it does in any Fourth Amendment case, on the specific facts presented. In particular, a court ‘must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.’ (Bell v. Wolfish [(1979)] 441 U.S. 520, 559 [60 L.Ed.2d 447, 481].)” (People v. Collins (2004) 115 Cal.App.4th 137, 154-155.)
Here, prison officials had probable cause to believe defendant had been passed and swallowed contraband during visitation. Based on their observations, and defendant’s later admission, it was clearly justified and imminently reasonable to place defendant under surveillance in a special holding cell to monitor whether he excreted any such contraband. For defendant’s safety, the prison officials did not interfere with defendant’s natural digestive process, but kept defendant under observation to prevent him from retrieving the swallowed contraband through vomiting or defecating.
Defendant was provided three meals a day, water whenever he requested it, and was under the supervision of a nurse while he was on contraband watch. We conclude the contraband watch was constitutionally reasonable and the trial court did not err in denying defendant’s motion to suppress.
II
Defendant contends the trial court should not have treated his prior juvenile adjudication as a strike and in doing so violated his Sixth and Fourteenth Amendment rights. Defendant’s argument is foreclosed by the recent California Supreme Court decision in People v. Nguyen (2009) 46 Cal.4th 1007, wherein the Supreme Court held that the federal Constitution permits the use of a prior juvenile adjudication to enhance a sentence for subsequent adult offenses. (Id. at pp. 1019-1022.) We are bound by that decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Accordingly, there was no error.
The recent amendments to Penal Code section 4019 do not operate to modify defendant’s entitlement to credit, as he had prior convictions for a serious felony. (Pen. Code, § 4019, subds. (b) & (c); Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 50.)
DISPOSITION
The judgment is affirmed.
We concur: ROBIE, J., CANTIL-SAKAUYE, J.