Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. Patrick F. Magers, Judge. Super.Ct.No. RIF120763
Andrew E. Rubin, under appointment by the Court of Appeal, for Defendant and Appellant Mark Joseph Roberts.
Sally P. Brajevich, under appointment by the Court of Appeal, for Defendant and Appellant Antyon Ethel Trebor Dotson.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Barry Carlton, Supervising Deputy Attorney General, and Susan Miller, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RICHLI J.
During a routine traffic stop, police officers found the driver -- defendant Mark “Chris” Roberts -- in possession of some marijuana; they found the passenger -- defendant Antyon Dotson -- in possession of about $600, mostly in $20 bills. They arrested Roberts on some outstanding warrants, and they let Dotson go.
The officers, however, knew that Roberts and Dotson were both members of the 1200 Blocc Crips, a gang heavily involved in selling rock cocaine. They suspected that Roberts had more drugs concealed somewhere on his person. While transporting him, they repeatedly asked him if he had any other drugs, warning him that it would be a crime to bring drugs into the jail. Just as repeatedly, he said no. Nevertheless, a booking officer found a 4.56-gram rock of cocaine between Roberts’s buttocks.
A jury found Roberts guilty of bringing a controlled substance into a jail. (Pen. Code, § 4573.) It further found both Roberts and Dotson guilty of possession of cocaine base for purposes of sale (Health & Saf. Code, § 11351.5), transportation of cocaine base (Health & Saf. Code, § 11352, subd. (a)), and participation in a gang (Pen. Code, § 186.22, subd. (a)). Gang enhancements to the possession and transportation counts were found true. (Pen. Code, § 186.22, subd. (b).) Dotson admitted two 1-year prior prison term enhancements. (Pen. Code, § 667.5, subd. (b).) Roberts was sentenced to a total of seven years in prison. Dotson was sentenced to a total of nine years in prison.
In this appeal:
1. Both defendants contend the trial court erred by denying their Batson-Wheeler motion.
A “Batson-Wheeler motion” asserts that the prosecution has exercised one or more of its peremptory challenges based on a juror’s membership in a racial or other cognizable group. (Batson v. Kentucky (1986) 476 U.S. 79 [106 S.Ct. 1712, 90 L.Ed.2d 69]; People v. Wheeler (1978) 22 Cal.3d 258.)
2. Roberts contends the trial court erred by allowing the prosecution to use evidence that he had been convicted of misdemeanor spousal battery to impeach him.
3. Roberts contends there was insufficient evidence that he was actually in a jail when the cocaine was found to support his conviction for bringing a controlled substance into a jail. Alternatively, he contends that there was sufficient evidence that he was not in a jail to require the trial court to instruct on the lesser included offense of attempting to bring a controlled substance into a jail.
4. Roberts contends he could not be found guilty of bringing a controlled substance into a jail because he did not enter the jail voluntarily.
5. Dotson contends there was insufficient evidence that he was aware of the presence of the cocaine to support his convictions for possession of cocaine base for sale and transportation of cocaine base.
6. Both defendants contend there was insufficient evidence to support the gang enhancement allegations.
We find no prejudicial error. Hence, we will affirm.
I
FACTUAL BACKGROUND
A. The Arrest and Booking of Roberts.
On December 8, 2004, Detective Joe Miera was driving an unmarked police car; Sergeant Frank Assumma and Officer Senon Saldana were with him. Around 8:30 p.m., at the intersection of Third Street and Chicago Avenue in Riverside, Detective Miera noticed that the driver of a passing car was trying to “shield his face” with his hand. Because the car had no license plates, Detective Miera followed it. After clocking it as going 60 in a 40-miles-per-hour zone, he stopped the car.
Defendant Roberts was the driver; defendant Dotson was his passenger. A records check revealed that Roberts had a suspended driver’s license and three outstanding misdemeanor warrants. Detective Miera therefore arrested him.
When Roberts was told that he was going to be arrested and booked into jail, he “got nervous” and vomited. One of the officers said, “[S]ince you’re going to jail, you need to tell U.S. now, do you have any drugs on you[?]” Roberts replied that he had some marijuana. An officer searched him and found marijuana in his shoe. Roberts also had $31 in cash.
Another officer searched Dotson and found approximately $600, consisting mostly of $20 bills, in his pants pocket. Dotson was allowed to keep the money and was not arrested at that time.
The officers took Roberts to the Robert Presley Detention Center, which is a county jail. They asked him “[n]umerous times,” not only at the scene, but also on the way to the jail, if he had any other contraband. They “advised him that it’s an additional crime to bring contraband . . . into a jail facility.” Roberts denied having any drugs.
At the door to the booking area, there was a sign stating that it was a crime to bring contraband into the jail. As they were escorting Roberts in, the officers called his attention to the sign.
At the request of the arresting officers, the booking officer carried out a strip search in addition to the usual booking search. When Roberts was told that he was going to be searched, he vomited again. The booking officer took him down a hallway and around a corner to the property room, so they could have some privacy. Between Roberts’s buttocks, he found a plastic bag containing one 4.56-gram rock of cocaine.
B. Gang Evidence.
Sergeant Assumma testified as a gang expert. He identified the 1200 Blocc Crips as a Black gang that claimed the east side of Riverside. It had merged with a related gang, the Georgia Street Mob (also known as the 2100 Blocc Crips).
One of the primary activities of the 1200 Blocc Crips was selling rock cocaine. Most of their drug sales took place along University Avenue, between Victoria and Iowa Avenues. Their primary activities also included robbing banks and assaulting rival gangs.
In Sergeant Assumma’s opinion, Dotson was a member of the 1200 Blocc Crips. For one thing, he had repeatedly admitted to police that he was a member. In addition, he had tattoos reading “1200 Blocc” and “GSM,” meaning Georgia Street Mob. When he was arrested, he was wearing a sweatshirt that said “GSM” and belt buckles with the letters “G” and “S.” In his home, the police found compact disc cases with “markings” on them, including “1200,” “12,” “GSM,” and “TOBC,” meaning 2100 Blocc Crips.
Again in Sergeant Assumma’s opinion, Roberts was also a member of the 1200 Blocc Crips. Although Roberts had not admitted to police that he was a member, he had been seen in the company of members of the 1200 Blocc Crips some 20 to 40 times, including “some of the high[-]ranking members . . . .”
Detective Miera had once seen Roberts carrying a keychain with a number 12 pool ball. This is a symbol of the 1200 Blocc Crips. Also, in Roberts’s car, the police found a keychain with an eight-ball. The eights had been crossed out; the letters “CB” had been scratched into the black part of the ball, and then crossed out. An eight-ball is a symbol of the 2800 Blocc Crips. The 1200 Blocc Crips are rivals of the 2800 Blocc Crips. Thus, the fact that the eights and the CB’s had been scratched out indicated that Roberts was a member of the 1200 Blocc Crips.
Finally, although Roberts did not have any gang tattoos, he did have a tattoo of the words, “Nic Nacc.” Sergeant Assumma explained that Crips avoid writing the letters “C” and “K” together, because Bloods use them to stand for “Crip killer.”
Based on the amount of the cocaine, the amount and denominations of the cash, the absence of any indicia of personal use, and the fact that Roberts and Dotson were both members of the 1200 Blocc Crips (one primary activity of which was selling rock cocaine), Sergeant Assumma concluded that the cocaine was possessed for sale.
Sergeant Assumma also testified that gang members selling rock cocaine commonly operate in pairs, “[o]ne person holding the dope with the other person holding [the] money,” in hopes of making the case against them “weaker.” The one with lower status would most likely hold the dope. Sergeant Assumma believed that Dotson carried “more weight” in the gang than Roberts.
C. Roberts’s Testimony.
Roberts took the stand. At the time of trial, he was 26. He testified that he started using marijuana when he was 15 and cocaine when he was 19. Also, by the age of 18, he was an alcoholic. By December 2004, he was smoking two or three “primos” a day. He explained that a primo is a cigar wrapper stuffed with marijuana and rock cocaine.
On December 8, 2004, Roberts had agreed to pick Dotson up in Riverside, so they could “get[] a room” with some women they knew in San Bernardino. Before meeting Dotson, however, Roberts bought $100 worth of rock cocaine. He explained that he liked to buy cocaine in relatively large quantities so as to minimize the number of purchases he made and, hence, his exposure to arrest. He used some of it to make a primo, which he smoked on the way to Riverside. He put the rest “near [his] tail bone.” That was where he usually carried drugs, for a number of reasons; one was that he did not want anybody to know about his drug habit. He testified that Dotson did not know he had a drug habit and did not know that he had any drugs on him.
Roberts admitted that a “dove,” or $20 rock of cocaine, is usually 0.20 to 0.25 grams, and hence the amount found on him was worth “substantially more” than $100. Indeed, it follows that it had a street value of some $360 to $450.
When Roberts got to Riverside, he stopped in the parking lot of a Church’s Chicken restaurant on University Avenue and phoned Dotson, who said he would meet him there. While waiting for Dotson, Roberts drank about half a pint of cognac. When Dotson arrived, they drove a short distance, looking for a place to buy condoms, until they were stopped by the police.
Roberts admitted that he did not know how fast he was driving, because his speedometer was not working properly. He did not tell the police about the cocaine because he knew it would get him into trouble, and he was trying to think of a way to get rid of it.
Roberts denied being a member of the 1200 Blocc Crips. He admitted being acquainted with some 10 or 15 members of the gang. He also admitted that Dotson was a member.
Dion Unger, a former 1200 Blocc Crips member, testified that Roberts was not a member.
D. Rebuttal Evidence.
Detective Miera testified that Roberts did not appear to be under the influence of cocaine. Sergeant Assumma agreed that Roberts did not show any signs of being under the influence of either drugs or alcohol and did not smell of alcohol or marijuana. There was no marijuana smell in his car. According to Sergeant Assumma, Roberts did not have any of the earmarks of a long-term rock cocaine addict, such as premature aging, extreme thinness, dry lips, rotting teeth, or calloused fingers; he looked “too healthy.”
II
BATSON-WHEELER
Both defendants contend the trial court erred by denying their Batson-Wheeler motion.
A. Additional Factual and Procedural Background.
When the trial court asked jurors with hardships to identify themselves, one of the jurors who raised a hand was Cheryl B. She explained:
“PROSPECTIVE JUROR: . . . I’m in school on Wednesdays, and I have a test this Wednesday that I can’t miss.
“THE COURT: Where do you attend?
“PROSPECTIVE JUROR: I’m in Riverside, so I go to Riverside Community College.
“THE COURT: Are you a full[-]time student?
“PROSPECTIVE JUROR: No, I go once a week.
“THE COURT: I can’t excuse you unless you are a full[-]time student.
“PROSPECTIVE JUROR: Okay.
“THE COURT: But the attorneys will know what your situation is. I’m not saying you will be on the jury. They know your situation.
“PROSPECTIVE JUROR: Okay. Thank you.”
In response to questioning by the court, Cheryl B. noted that she had “a bad cold.” She testified that she was an unmarried preschool teacher. She had a 19-year-old daughter who was a full-time student. She had never served on a jury. She did not have any friends in law enforcement, and she felt she could “evaluate [a police officer’s] testimony like anyone else[.]” She believed she could be fair.
The prosecutor then questioned her as follows:
“[PROSECUTOR:] . . . [Y]ou have a test this Wednesday?
“PROSPECTIVE JUROR B[.]: Yes.
“[PROSECUTOR]: What time would that test be?
“PROSPECTIVE JUROR B[.]: Um, about 2:25.
“[PROSECUTOR]: Is there any way to make that test up?
“PROSPECTIVE JUROR B[.]: I think so.
“[PROSECUTOR]: You are not sure?
“PROSPECTIVE JUROR B[.]: Well, yeah, I’m sure. It can be made up.”
The prosecutor peremptorily challenged two other jurors, then challenged Cheryl B.
At the next recess, counsel for both defendants objected that “there was no reason to remove [Cheryl B.] other than for racial reasons . . . .” They noted for the record that she had been the only African-American member of the jury pool.
The trial court said: “At this time, the [c]ourt is not finding a systematic [ex]clusion. However, do you want to put something on the record?” The prosecutor responded: “[W]hile I do believe she would be an excellent juror, she indicated to U.S. she has a test day after tomorrow. I had always intended to exercise one of my p[er]emptories to excuse her so she could make that test. Even withstanding her response to the question she could make it up. I’m assuming that two days out of the test, she is ready for it. I did not wish to put her to the trouble. I would have stipulated if counsel had been willing. I didn’t ask. I didn’t think that was fair to put her through this when she is on the eve of a test in her only class.” The trial court then ruled, once again, “The Court does not find a systematic [exc]lusion.”
B. Analysis.
“‘Both the state and federal Constitutions prohibit the use of peremptory challenges to remove prospective jurors based solely on group bias. [Citations.]’” (People v. Stanley (2006) 39 Cal.4th 913, 936, quoting People v. Guerra (2006) 37 Cal.4th 1067, 1100.) “The United States Supreme Court recently reiterated the applicable legal standards. ‘First, the defendant must make out a prima facie case “by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” [Citations.] Second, once the defendant has made out a prima facie case, the “burden shifts to the State to explain adequately the racial exclusion” by offering permissible race-neutral justifications for the strikes. [Citations.] Third, “[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.”’ [Citation.]” (People v. Ledesma (2006) 39 Cal.4th 641, 677, quoting Johnson v. California (2005) 545 U.S. 162, 168 [125 S.Ct. 2410, 162 L.Ed.2d 129], quoting Batson v. Kentucky, supra, 476 U.S. at p. 94.)
“When a trial court . . . requests the prosecution to justify its peremptory challenges, then the question whether defendant has made a prima facie showing is either considered moot [citation] or a finding of a prima facie showing is considered implicit in the request [citation]. But when . . . the trial court states that it does not believe a prima facie case has been made, and then invites the prosecution to justify its challenges for purposes of completing the record on appeal, the question whether a prima facie case has been made is not mooted, nor is a finding of a prima facie showing implied. [Citation.]” (People v. Welch (1999) 20 Cal.4th 701, 745-746.) Here, the trial court expressly stated that it was “not finding a systematic [ex]clusion”; only then did it ask the prosecutor whether he wanted “to put something on the record[.]”
Dotson argues that the trial court failed to make a finding on the prima facie case prong of the analysis. Roberts, on the other hand, argues that it applied an erroneous legal standard to its decision under this prong, because it required a showing of “systematic exclusion.” We disagree with both. “[A]lthough the well-worn phrase ‘systematic exclusion’ is somewhat of a misnomer when used to describe a discriminatory use of peremptory challenges . . . [,] this and other courts have used and understood that term as an acceptable shorthand phrase for denoting Wheeler error. [Citation.] . . . [I]t hardly seems fair or appropriate to fault this trial judge for using the term . . ., much less to conclude that a wrong standard was applied in ruling on the motion.” (People v. Reynoso (2003) 31 Cal.4th 903, 927, fn. 8.) By finding no systematic exclusion, the trial court simply meant that defendants had failed to make out a prima facie case.
“‘“[A] defendant satisfies the requirements of Batson’s first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.” [Citation.]’” (People v. Stanley, supra, 39 Cal.4th at p. 936, quoting Johnson v. California, supra, 545 U.S. at p. 168.) “When a trial court denies a Wheeler motion without finding a prima facie case of group bias, the appellate court reviews the record of voir dire for evidence to support the trial court’s ruling. [Citations.] We will affirm the ruling where the record suggests grounds upon which the prosecutor might reasonably have challenged the jurors in question. [Citation.]” (People v. Farnam (2002) 28 Cal.4th 107, 135.)
Here, defendants showed that the prosecution had challenged the only African-American in the venire. “Although circumstances may be imagined in which a prima facie case could be shown on the basis of a single excusal, in the ordinary case, . . . to make a prima facie case after the excusal of only one or two members of a group is very difficult. [Citation.]” (People v. Bell (2007) 40 Cal.4th 582, 598, fn. 3.) For example, in People v. Roldan (2005) 35 Cal.4th 646, the Supreme Court observed that the defendant’s “only showing in support of [his] first Wheeler motion was that the two challenged jurors were both African-American and that two of his eight peremptory challenges were used against African-Americans. This was insufficient to make a prima facie showing under any standard. [Citation.]” (Id. at p. 702; see also People v. Rousseau (1982) 129 Cal.App.3d 526, 536 [fact that “‘there were only two blacks on the whole panel, and they were both challenged by the district attorney’” failed to establish prima facie case], cited with approval by, inter alia, People v. Farnam, supra, 28 Cal.4th at p. 137.)
Roberts concedes that “the exclusion of the only [B]lack juror” is not necessarily “improper” and does not even necessarily “raise an inference of impropriety.” He argues, however, that in addition, “the prosecutor asked no questions about Cheryl B.’s qualifications . . . .” Certainly it can be relevant that the prosecutor has failed to engage the challenged jurors “in more than desultory voir dire, or indeed to ask them any questions at all.” (People v. Wheeler, supra, 22 Cal.3d at p. 281.) Here, however, the voir dire had been sufficient to bring out at least two reasons why the prosecutor might reasonably have challenged Cheryl B. First, she had a bad cold. This could make it hard for her to stay alert and focused; it could also make her fellow jurors leery of deliberating with her. Second, she was going to have to miss a test, a situation that she considered to be a hardship. Even though she admitted that she could make up the test, she could well resent being forced to do so.
Defendants argue that the prosecutor (as he later admitted) never asked the defense to stipulate to excuse Cheryl B. But that is true virtually every time a prosecutor exercises a peremptory challenge; it does not undermine the good faith of the challenge. That is particularly true when, as here, the prosecutor had no reason to assume that both defense counsel would enter into such a stipulation. Indeed, from the very fact that defense counsel objected, it seems reasonable to suppose, at least in hindsight, that they would not have done so.
We therefore conclude that the trial court did not err by denying defendants’ Batson-Wheeler motion.
III
IMPEACHMENT OF ROBERTS WITH HIS PRIOR MISDEMEANOR CONVICTION FOR SPOUSAL BATTERY
Roberts contends that the trial court erred by allowing the prosecution to use evidence that he had been convicted of misdemeanor spousal battery to impeach him.
A. Additional Factual and Procedural Background.
Roberts had a 1998 misdemeanor conviction for petty theft. (Pen. Code, §§ 484, subd. (a), 488, 490.) In addition, he had a 2002 misdemeanor conviction for spousal battery. (Pen. Code, § 243, subd. (e)(1).)
Defense counsel objected to evidence of the spousal battery conviction, arguing that it was not “appropriate impeachment” because “[t]his is not a domestic violence case.” There was this discussion:
“THE COURT: I think it is a crime involving moral turpitude.
“[DEFENSE COUNSEL]: Right.
“THE COURT: That’s my understanding.
“[PROSECUTOR]: Yes. 243(e)(1) is one of the -- it has been ruled upon it’s a crime of moral turpitude.”
The trial court overruled the objection. Accordingly, on the stand Roberts admitted that he had a 2002 misdemeanor conviction for “domestic violence.” He explained that the girlfriend with whom he was then living called and asked him to come home from work, saying she had cut her wrist. When he arrived, he discovered that the cut was merely superficial. He started packing his things. She grabbed his beer bottle, “to either hit [him] with it or dump the beer on [him].” However, it slipped out of her hand and broke a window. He did not know she had called the police until he discovered that there was a warrant for his arrest. He testified: “ . . . I pled guilty because I wanted to get on with my life.”
He also admitted that he had a 1998 misdemeanor conviction because “[he] walked into an Albertson’s and tried to steal two bottles of alcohol, two fifths of alcohol.” At the time, he “had a lot of stress” and was an alcoholic.
B. Analysis.
Historically, evidence of a prior misdemeanor was inadmissible to attack a witness’s credibility. (Evid. Code, § 787; People v. Lent (1975) 15 Cal.3d 481, 484-485.) In People v. Wheeler (1992) 4 Cal.4th 284, however, the Supreme Court held that in criminal cases Proposition 8 had abrogated this rule. (Wheeler, at pp. 288, 291-292.) Thus, “if past criminal conduct amounting to a misdemeanor has some logical bearing upon the veracity of a witness in a criminal proceeding, that conduct is admissible, subject to trial court discretion . . . .” (Id. at p. 295.) It further held that a prior misdemeanor has such a “logical bearing” on veracity only if it involves either dishonesty or other moral turpitude. (Id. at pp. 295-296.)
We may assume, without deciding, that Roberts’s trial counsel did not invite the error when he expressly agreed that it was a crime of moral turpitude. In that case, the evidence should not have been admitted; however, we conclude that the error was harmless.
One problem is that the trial court -- and the parties -- were using the wrong legal standard. The applicable test of moral turpitude differs depending on whether the crime is a felony or a misdemeanor. With respect to a felony, the conviction itself is admissible (Evid. Code, § 788), but “the court must determine moral turpitude solely from the ‘least adjudicated elements’ of the conviction. [Citation.]” (People v. Wheeler, supra, 4 Cal.4th at p. 297, fn. 7, quoting People v. Castro (1985) 38 Cal.3d 301, 317.) By contrast, with respect to a misdemeanor, the conviction itself is inadmissible (Wheeler, at pp. 297-300), and the court must determine moral turpitude based on the actual conduct underlying the conviction. (People v. Ayala (2000) 23 Cal.4th 225, 273; People v. Lepolo (1997) 55 Cal.App.4th 85, 89-91 [Fourth Dist., Div. Two].)
Here, the prosecutor did not so much as make an offer of proof regarding the conduct underlying the conviction. The conviction itself was inadmissible. Thus, the trial court erred. Moreover, in hindsight, it appears that the only way the prosecution could have proved the underlying conduct was through Roberts’s own testimony, which was almost wholly exculpatory.
Admittedly, the prosecution could (and, to some extent, did) impeach Roberts’s exculpatory testimony with the fact that he had pleaded guilty. This was an admission of every element of the charged offense. As Roberts argues, however, the bare elements of battery do not suffice to show moral turpitude. “Battery is committed whenever there is the slightest intentional touching, even though there is no intent to harm, and even though the degree of force used is unlikely to cause harm. Since [Penal Code] section 243 does not require an intention to do any act which would be judged to be evil by generally accepted community standards of morality, battery is not a crime of moral turpitude . . . . [Citation.]” (People v. Thornton (1992) 3 Cal.App.4th 419, 423 [Fourth Dist., Div. Two].) The mere fact that the victim was a spouse, cohabitant, or “person with whom the defendant currently has, or has previously had, a dating or engagement relationship” (Pen. Code, § 243, subd. (e)(1)) does not add any moral turpitude to these otherwise relatively innocuous elements.
The applicable harmless error standard, as Roberts concedes, is that of People v. Watson (1956) 46 Cal.2d 818, 836: whether it is reasonably probable that, in the absence of the error, the appellant would have enjoyed a more favorable result. (See, e.g., People v. Marks (2003) 31 Cal.4th 197, 229.) As already noted, the only evidence of the spousal battery conviction came from Roberts’s own mouth and was essentially exculpatory. At the same time, however, Roberts was additionally impeached by evidence of his petty theft conviction, which, unlike the spousal battery conviction, involved actual dishonesty. Moreover, there was evidence regarding Roberts’s gang membership, and Roberts himself testified in extensive -- almost lurid -- detail regarding his illegal drug use. We see absolutely zero possibility that, when the jurors asked themselves whether they should believe Roberts, the deciding factor for them was his spousal battery conviction.
IV
THE SUFFICIENCY OF THE EVIDENCE THAT ROBERTS WAS IN JAIL WHILE IN POSSESSION OF THE COCAINE
Roberts contends that there was insufficient evidence that he was actually in a jail when the cocaine was found to support his conviction for bringing a controlled substance into a jail. Alternatively, he contends that there was sufficient evidence that he was not in a jail to require the trial court to instruct on the lesser included offense of attempting to bring a controlled substance into a jail.
Penal Code section 4573, as relevant here, requires proof that the defendant brought a controlled substance “into[] any . . . jail, . . . or other place where prisoners or inmates are located under custody of any . . . peace officer, . . . or within the grounds belonging to the institution . . . .”
Detective Miera testified that the Robert Presley Detention Center is “a Riverside [c]ounty [j]ail.” The booking officer agreed that it “is . . . a jail[.]” Thus, the evidence demonstrated that the entire structure constituted a jail.
Roberts asserts that “the evidence did not establish where the jail premises began and the police station ended.” What police station? He may be thinking of the booking area; the booking area, however, was inside, and part of, the jail. Moreover, the sign warning that it is a crime to bring a controlled substance into the jail was located at the entrance to the booking area; Roberts was taken past the sign and into the booking area before he was searched. This was additional evidence that the booking area was inside the jail.
Roberts also suggests that Penal Code section 4573 applies exclusively to a “place where jail inmates [a]re housed or allowed to congregate.” Not so. It applies to a “jail” in its entirety. It also applies to any “grounds belonging to” a jail. Either formulation would include areas in which inmates are merely booked, not housed. Indeed, they would even include areas in which inmates are not allowed at all.
We therefore conclude that there was ample evidence that Roberts brought a controlled substance into a jail. Moreover, because there was no substantial evidence that Roberts was not in jail when the cocaine was found, the trial court was not required to instruct on the lesser included offense of attempt.
V
THE VOLUNTARINESS OF ROBERTS’S COMMISSION OF THE OFFENSE OF BRINGING A CONTROLLED SUBSTANCE INTO A JAIL
Roberts contends that he could not be found guilty of bringing a controlled substance into a jail because he did not enter the jail voluntarily.
A similar issue is presently before the California Supreme Court in People v. Gastello (2007) 149 Cal.App.4th 943, review granted June 13, 2007, S153170 and People v. Low (Mar. 14, 2007, A112831), review granted June 13, 2007, S151961.
“ . . . ‘When the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence, we ask whether the defendant intended to do the proscribed act. This intention is deemed to be a general criminal intent.’” (People v. Atkins (2001) 25 Cal.4th 76, 82, italics added, quoting People v. Hood (1969) 1 Cal.3d 444, 456-457.)
Penal Code section 4573 was targeted at preventing drug use by inmates. (People v. Gutierrez (1997) 52 Cal.App.4th 380, 386 [Fourth Dist., Div. Two].) To prohibit its application to inmates merely because their presence in the institution is involuntary would circumvent the purpose of the provision.
Roberts was in possession of the cocaine intentionally. Moreover, he entered the jail intentionally, albeit in submission to the officers’ lawful authority; i.e., he walked in on his own two feet, rather than being carried in, dragged in, or pushed in. Thus, he acted with general criminal intent. He also satisfied the requirement of Penal Code section 4573 that he act “knowingly.” Under these circumstances, the crime is not an impermissible status offense. (See Robinson v. California (1962) 370 U.S. 660, 666-667 [82 S.Ct. 1417, 8 L.Ed.2d 758]; Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1104-1105.)
Roberts’s reasons for entering the jail do not defeat the existence of his intent to enter. Conceivably, however, they could be relevant to a defense. If he could show that he both possessed the cocaine and entered the jail “involuntarily” -- in the sense that he was only submitting to the officers’ lawful authority -- he would not be guilty. The defense of entrapment would apply (see generally People v. Barraza (1979) 23 Cal.3d 675, 689-691) and probably also the defense of necessity (see generally People v. Miceli (2002) 104 Cal.App.4th 256, 267).
Unlike Roberts’s entrance into the jail, however, his possession of the cocaine was wholly voluntary. The officers did not order or compel him to possess it. Moreover, they did not order or compel him to continue to possess it as he was walking into the jail. Accordingly, the evidence showed that Roberts knowingly, intentionally, and voluntarily possessed cocaine when he knowingly and intentionally (though “involuntarily”) entered a jail.
A substantively identical argument was rejected in People v. James (1969) 1 Cal.App.3d 645. There, the defendant was charged with possession of a firearm in jail, a violation of Penal Code section 4574. (James, at pp. 647, 649.) Another inmate had turned a pistol in to the authorities; they had traced its possession back to the defendant. He claimed that it had been in his waistband when he was arrested and that it had been missed in a booking search. (Id. at pp. 647-648.) The trial court granted his motion to dismiss, explaining, “‘[T]here is nothing to indicate that the [d]efendant voluntarily took the weapon anywhere. He was under arrest.’” (Id. at p. 649.) The appellate court reversed, stating, “[The defendant] knowingly possessed a firearm while in jail, after he had ample time to surrender it to the jailer. The fact that [the defendant] had no choice about going to jail is irrelevant. He knew he had the gun and he knew he should have turned it over to the jailer when he was booked. . . . ‘To render a person guilty of a crime it is not essential to a conviction that the proof should show such person to have entertained any intent to violate the law. [Citations.] It is sufficient that he intentionally committed the forbidden act.’ [Citations.] The [defendant’s] action comes within that proscribed by Penal Code section 4574.” (Id. at p. 650)
Of course, it is arguable that any attempt to dispose of the cocaine would have incriminated Roberts by revealing its presence to the officers. Thus, in his reply brief, he argues, for the first time, that he “face[d] a Hobson’s choice [sic ] that violates the Fifth Amendment: Either incriminate himself by informing the police that he is in possession of an illegal controlled substance or face [a] penalty for the crime of bringing a controlled substance into a penal institution.” Roberts, however, did not invoke his Fifth Amendment privilege against self-incrimination below; he therefore waived it. On appeal, his failure to raise the Fifth Amendment in his opening brief constitutes an additional waiver.
Technically, “Hobson’s choice” means no choice at all -- “the option of taking the one thing offered or nothing.” (Oxford English Dict. (2d ed. 1989) at , as of Sept. 7, 2007.) What Roberts really means is that he was between Scylla and Charybdis, a rock and a hard place, or the devil and the deep blue sea.
In any event, Penal Code section 4573 does not compel anyone either to make any incriminating statements or to waive the privilege. It merely prohibits bringing a controlled substance into a penal institution. Here, if Roberts had told the officers the truth, i.e., that he had rock cocaine on his person, and if his statements had been used against him, then he might have an argument under the Fifth Amendment. If he had invoked his right to silence and been charged with possession because of that invocation, even in part, he might also have a Fifth Amendment argument. Instead, however, he did the one thing that guaranteed that the Fifth Amendment has no application here whatsoever -- he lied, said he had no drugs on him, and proceeded to bring cocaine into the jail.
We therefore conclude that there was sufficient evidence of the necessary general intent to support Roberts’s conviction.
VI
THE SUFFICIENCY OF THE EVIDENCE THAT DOTSON WAS AWARE OF THE PRESENCE OF THE COCAINE
Dotson contends there was insufficient evidence that he was aware of the presence of the cocaine to support his convictions for possession of cocaine base for sale and transportation of cocaine base.
“In resolving such a claim, a reviewing court must determine ‘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.’ [Citations.]” (People v. Ledesma, supra, 39 Cal.4th at p. 722, quoting Jackson v. Virginia (1979) 443 U.S. 307, 319 [99 S.Ct. 2781, 61 L.Ed.2d 560].) “‘[W]e review the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence -- that is, evidence that is reasonable, credible, and of solid value -- from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.’ [Citation.] ‘The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ [Citation.]” (People v. Ramirez (2006) 39 Cal.4th 398, 463, quoting People v. Cole (2004) 33 Cal.4th 1158, 1212 & People v. Kraft (2000) 23 Cal.4th 978, 1053.)
Both offenses require knowledge of the presence of the illegal drug. (People v. Martin (2001) 25 Cal.4th 1180, 1184; People v. Meza (1995) 38 Cal.App.4th 1741, 1745-1746.) In this case, however, as Dotson was not driving the car or holding the cocaine, presumably he was convicted on an aiding and abetting theory (on which the jury was duly instructed). “‘[A]n aider and abettor is a person who, “acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.”’ [Citation.]” (People v. Jurado (2006) 38 Cal.4th 72, 136, quoting People v. Prettyman (1996) 14 Cal.4th 248, 259, quoting People v. Beeman (1984) 35 Cal.3d 547, 561.) Accordingly, even under an aiding and abetting theory, Dotson would have to be aware of the presence of the illegal drug.
Roberts and Dotson were fellow members of the 1200 Blocc Crips; selling rock cocaine is one of the primary purposes of the 1200 Blocc Crips. Also, when the traffic stop was made, Dotson had about $600 in cash in his pocket, “predominantly” in $20 bills; Roberts only had about $31. Detective Assumma testified that rock cocaine is normally sold in $20 units, so that the possession of “a lot of $20 bills” is an indicator of drug dealing. He also testified that it is common for gang members who are selling rock cocaine to act in pairs and to “split up th[e] evidence,” so that one of them is holding the money and the other is holding the drugs. Typically, the junior gang member will hold the drugs (thus taking more of the risk), while the senior gang member will hold the money (thus securing more of the benefit). In Sergeant Assumma’s opinion, Dotson outranked Roberts. While it is not impossible that Roberts was selling rock cocaine as a private enterprise of his own, it seems unlikely that he would take the risk of cutting a senior gang member out of the deal.
Dotson argues that he was as likely, if not more so, to have gotten the $20 bills from an ATM than from drug dealing. ATM’s, however, normally will not dispense more than $200 or $300 in one day.
Dotson also notes that when the police arrested Roberts, they did not arrest him. At that point, however, they had not yet found the cocaine.
Finally, Roberts testified that he was in possession of the cocaine purely for personal use and that Dotson did not know it was there. The jury, however, was not required to believe him. Indeed, his testimony was perfectly consistent with a junior gang member’s sense of obligation to protect a senior gang member.
In a subsidiary contention, Dotson also argues that there was insufficient evidence that he had a right to control the cocaine to support a finding of constructive possession. Once again, however, presumably Dotson was convicted of possession for sale as an aider and abettor. In that event, it was sufficient that that Roberts was in possession of the cocaine with the intent to sell; that Dotson knew this; and that Dotson intentionally aided, promoted, encouraged, or instigated Roberts’s commission of this crime. Acting as the “bagman” would certainly be sufficient to constitute such intentional aid and encouragement.
We therefore conclude that there was sufficient evidence to support the challenged convictions.
VII
THE SUFFICIENCY OF THE EVIDENCE TO SUPPORT THE GANG ENHANCEMENTS
Both defendants contend that there was insufficient evidence to support the gang enhancement allegations.
A gang enhancement requires that the current conviction be “a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . .” (Pen. Code, § 186.22, subd. (b)(1).)
Despite what seems to be a common misconception, it is not necessarily required that the crime be committed to benefit the gang. (People v. Morales (2003) 112 Cal.App.4th 1176, 1198 [Fourth Dist., Div. Two].) It simply must be committed either (1) for the benefit of, or (2) at the direction of, or (3) in association with the gang. In addition, the defendant must have the specific intent to either (1) promote, or (2) further, or (3) assist in any criminal conduct by gang members; thus, once again, he or she does not have to intend to benefit the gang.
In Morales we held that “[t]he evidence that defendant knowingly committed the charged crimes in association with two fellow gang members was sufficient to support the jury’s findings on the gang enhancements that (a) the crimes were ‘committed for the benefit of, at the direction of, or in association with’ a gang, and (b) defendant committed the crimes ‘with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . .’ (Pen. Code, § 186.22, subd. (b)(1).)” (People v. Morales, supra, 112 Cal.App.4th at p. 1179.) In the absence of evidence that all three were “on a frolic and detour unrelated to the gang,” we added, “the jury could reasonably infer the requisite association from the very fact that defendant committed the charged crimes in association with fellow gang members.” (Id. at p. 1198; see also People v. Villalobos (2006) 145 Cal.App.4th 310, 322 [“[c]ommission of a crime in concert with known gang members is substantial evidence which supports the inference that the defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime”].)
Here, Sergeant Assumma testified that one of the primary activities of the 1200 Blocc Crips was selling rock cocaine. He explained: “You cannot separate gangs and narcotics. They are interwoven. Most gangs, their primary criminal activity is the sales of illegal drugs.” He also testified that defendants’ possession of rock cocaine for sale benefited the gang because selling rock cocaine “is their primary way of making money . . . . It’s the primary way they survive . . . .”
In addition, as we held in part VI, ante, the jury could reasonably conclude that Roberts and Dotson -- two fellow gang members -- were aiding and abetting each other in the possession for sale and the transportation of the rock cocaine. This was sufficient to show that they committed these offenses in association with, if not for the benefit of, the gang. It was also sufficient to show that they acted with the specific intent of assisting in criminal conduct by gang members.
VIII
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ P.J.; McKINSTER J.