Opinion
E067267
11-28-2017
THE PEOPLE, Plaintiff and Respondent, v. GREGORY WAYNE PHILLIPS, Defendant and Appellant.
Jan B. Norman, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1600476) OPINION APPEAL from the Superior Court of Riverside County. Jean P. Leonard, Judge. Affirmed. Jan B. Norman, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
On June 23, 2016, a first amended information alleged that on or about January 20, 2016, defendant and appellant Gregory Wayne Phillips: (1) possessed pruno while incarcerated in violation of Penal Code section 4573.8; and (2) attempted to possess pruno while incarcerated in violation of Penal Code sections 664 and 4573.8. The information also alleged that defendant had suffered five prior strike convictions and three prior prison commitments.
"An improvised alcoholic drink made by fermenting a mixture of fruit, water, sugar, etc." (https://en.oxforddictionaries.com/definition/pruno as of Nov. 20, 2017.)
A jury trial commenced on June 22, 2016. On June 27, 2016, the jury found defendant not guilty of possession of pruno, but guilty of attempted possession of pruno. On June 28, 2016, in a bifurcated proceeding, defendant admitted suffering three prior prison commitments and five prior strike convictions. On November 3, 2016, the trial court granted defendant's Romero motion in part and struck four of the five prior strike convictions. Also on November 3 the trial court sentenced defendant to six years (half of three years, doubled by the one remaining prior strike conviction, plus one year on each of the three prior prison commitments, to be served consecutively). The trial court also ordered defendant to pay various fines and fees. Furthermore, defendant received custody credit for 561 days (281 actual days plus 280 conduct credit days).
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
The court vacated a fine ordered under Penal Code section 290.3, and filed an amended abstract of judgment. --------
On November 21, 2016, defendant filed a timely notice of appeal.
B. FACTUAL HISTORY
1. PROSECUTION CASE
In January of 2016, Riverside County Sheriff's Correctional Deputy Juanita Urrutia was working at the Robert Presley Detention Center in downtown Riverside. One of her duties was to search inmate cells for contraband. On January 20, 2016, the Urrutia was searching the cell next to defendant's. Another officer, Deputy Rodriguez, was searching defendant's cell. Deputy Rodriguez shouted "flushing," to signify someone in defendant's cell was attempting to flush an object or objects down the toilet. Urrutia looked in the window to defendant's cell and saw defendant with a bag in his hands, standing over the toilet. Defendant's cellmate was attempting to block the window to the cell.
After defendant and his cellmate were removed from the cell, Deputy Urrutia removed the bag from the toilet; it contained a liquid substance. Urrutia was familiar with the look and smell of pruno from previous experiences as a correctional deputy—pruno had a strong and unique odor. Urrutia testified "[i]t smelled like rotten fruit. Very acidic. Not a good smell. . . . Very strong." Urrutia put the bag on the bed in the cell and took photographs. Based upon her observations, she believed that the bag contained pruno. Urrutia explained that pruno was made by combining bread and fruit in a bag and letting it sit until it fermented.
Correctional Officer Brian Ellis had been employed with the State Department of Corrections for almost nine years. In that time, he had been involved in more than 200 investigations involving inmate possession of contraband. Fifty of those investigations involved possession of pruno. Ellis had interviewed multiple inmates concerning the making of pruno—pruno is made by mashing fruit (usually apples) and mixing with water. The mixture is then wrapped in towels to retain heat and stored for 48 hours. After the 48 hours, bread and sugar are added into the bag and in five to seven days it will ferment into alcohol. After the first three to five days, it has a very distinctive foul odor. Ellis viewed the photographs taken of the bag and towels found in defendant's cell and recognized the bag contained what appeared to be fruit. He opined the towels were used to insulate and heat the mixture.
It was Officer Ellis's opinion, based upon his past experiences, his review of the photographs, and Deputy Urrutia's report, that the substance in the bag found in defendant's cell was in the fermentation process and was pruno.
On cross-examination, Officer Ellis admitted that it was "fair to say" that it was "quite possible" that the fermentation had not yet occurred, and the bag did not contain alcohol.
Community Service Officer Stephanie Torres was responsible for evidence brought into the Jurupa Valley Station. On January 21, 2016, she saw the evidence envelope booked in defendant's case was leaking. The bar code label indicated that inside the envelope was a "jail sample of alcohol." She did not open the envelope, but noticed the leaking envelope smelled like beer. She emailed Deputy Urrutia. One week later, someone came to "fix" the issue. They unsealed the envelope in front of Torres, took the urine cup out, reaffixed the lid, and resealed the envelope. Two months later, Torres was instructed to and did take the evidence "next door" to the Department of Justice for testing.
The parties stipulated that Department of Justice Eric Haw received the sample provided by Officer Torres in defendant's case. He was unable to test for pruno because the liquid was insufficient for testing.
2. DEFENSE CASE
Deputy Urrutia admitted that she prepared her report from a template provided by her sergeant. She acknowledged that her report contained several errors such as identifying defendant by the wrong name and indicating that she attached a request for testing when no request was attached.
DISCUSSION
After defendant appealed, and upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting this court to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, but he has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error and find no error.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. FIELDS
J.