Opinion
NOT TO BE PUBLISHED
Sup.Ct. No. 04CR5193
MORRISON, J.
Defendant James Conrad Stull, convicted of multiple offenses arising out of his efforts to smuggle drugs into Mule Creek State Prison, argues that the evidence was insufficient to support one of the convictions and the court should have excluded incriminating evidence that was not disclosed to the defense prior to trial. We will modify the judgment by striking two unauthorized fines, and otherwise affirm.
BACKGROUND
On February 12, 2004, defendant was an inmate at Mule Creek State Prison. Prior to meeting with a visitor, defendant lubricated his ear with hair grease and secreted in his nasal cavity two Bic razor blades wrapped in tissue.
We will refer to the evidence of the hidden razor blades as the “razor blade evidence,” which we discuss in more detail below.
During the visit, he walked to a section of the visiting area that had a table with condiments on it. In the midst of the condiments was a sealed latex balloon that later tested positive for heroin and methamphetamine. Defendant picked up the balloon and put it in his pocket. When he was denied access to the restroom by officers who had been alerted to his activities, defendant returned to his chair, put his pinky finger in his ear, lubricated it with hair grease, then reached behind the waistband of his pants and inserted the balloon in his anus. Following the visit defendant was sequestered in a holding cell. Eventually he defecated the balloon into the pants leg of his prison clothing, but Correctional Officer Raoul Rodriguez found it when defendant stated he needed to take a bowel movement.
Lori Gambill, a correctional officer familiar with the processing of all evidence in cases originating at the prison, testified that narcotics a prisoner obtains in the visiting room are invariably brought into the room by a visitor and that defendant’s preparatory act of lubricating his ear with hair grease was consistent with the behavior of prisoners who anticipate obtaining and hiding illicit substances during visits.
The defense was premised on lack of knowledge and criminal intent. When defendant saw the balloon sitting on the condiments table he suspected it contained contraband but was unsure what was inside it. He knew it was a violation of prison rules to bring contraband into prison, but did not know whether it was a crime.
The jury returned guilty verdicts on all five counts of the information, which alleged transportation of heroin (Health & Saf. Code, § 11352, subd. (a)), transportation of methamphetamine (id., § 11379, subd. (a)), possession of heroin for sale (id., § 11351), bringing heroin and methamphetamine into prison (Pen. Code, § 4573), and possession of heroin and methamphetamine in prison (id., § 4573.6). The court thereafter found true allegations that defendant had suffered numerous prior serious felony convictions.
The court sentenced defendant to concurrent indeterminate prison terms of 25 years to life for each conviction, with all but one stayed pursuant to Penal Code section 654.
DISCUSSION
1. The Evidence Supports the Penal Code Section 4573 Conviction
Penal Code section 4573 punishes an individual “who knowingly brings or sends into, or knowingly assists in bringing into, or sending into, any state prison,” specified controlled substances, including heroin and methamphetamine.
Section 4573 provides in full: “Except when otherwise authorized by law, or when authorized by the person in charge of the prison or other institution referred to in this section or by an officer of the institution empowered by the person in charge of the institution to give the authorization, any person, who knowingly brings or sends into, or knowingly assists in bringing into, or sending into, any state prison, prison road camp, prison forestry camp, or other prison camp or prison farm or any other place where prisoners of the state are located under the custody of prison officials, officers or employees, or into any county, city and county, or city jail, road camp, farm or other place where prisoners or inmates are located under custody of any sheriff, chief of police, peace officer, probation officer or employees, or within the grounds belonging to the institution, any controlled substance, the possession of which is prohibited by Division 10 (commencing with Section 11000) of the Health and Safety Code, any device, contrivance, instrument, or paraphernalia intended to be used for unlawfully injecting or consuming a controlled substance, is guilty of a felony punishable by imprisonment in the state prison for two, three, or four years. [¶] The prohibitions and sanctions addressed in this section shall be clearly and prominently posted outside of, and at the entrance to, the grounds of all detention facilities under the jurisdiction of, or operated by, the state or any city, county, or city and county.”
Defendant argues the evidence was insufficient to prove he brought drugs into the prison because the crime was already complete when he found the contraband in the visiting room, which was an area inside the prison, and “there was no evidence that [defendant] did anything to assist the introduction of drugs into the visiting room.” We are unpersuaded.
“‘To determine sufficiency of the evidence, we must inquire whether a rational trier of fact could find defendant guilty beyond a reasonable doubt. In this process we must view the evidence in the light most favorable to the judgment and presume in favor of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. To be sufficient, evidence of each of the essential elements of the crime must be substantial and we must resolve the question of sufficiency in light of the record as a whole.’” (People v. Carpenter (1997) 15 Cal.4th 312, 387, quoting People v. Johnson (1993) 6 Cal.4th 1, 38; see Jackson v. Virginia (1979) 443 U.S. 307, 317-320 [61 L.Ed.2d 560, 572-574].)
Even if we assume, for the sake of argument only, that the visiting area where defendant picked up the balloon filled with narcotics was within a “state prison” as used in section 4573, defendant was not thereby shielded from culpability. To effect the long-standing legislative intent to prevent illegal drugs from entering prisons, we broadly construe the words “brings” and “bringing,” to include “causing to come; to procure; to cause to come from, into; to bring to pass, etc. [Citation.] The word has more than a score of meanings which demonstrate that the lawmakers intended to forbid a person to cause the drugs to be delivered to a state prison.” (People v. Waid (1954) 127 Cal.App.2d 614, 617.) Consequently, a defendant need not physically carry the drugs across the prison threshold in order to be guilty of “bringing” them into prison. (Id. at pp. 617-619.)
In addition, the statute targets “any person . . . [who] knowingly assists in bringing into, or sending into, any state prison,” the specified contraband. To obtain a conviction therefor, the People must establish the defendant knowingly assisted bringing the controlled substance into prison, knew of its nature as a controlled substance, and that the substance was in an amount sufficient to be used as a controlled substance. (Cf. People v. Palaschak (1995) 9 Cal.4th 1236, 1242.) (CT 128) The dual knowledge elements may be established by circumstantial evidence. (Ibid.) “Thus, a person found in possession of secreted drugs or narcotics within a penal facility will be hard put to disprove either type of knowledge.” (People v. Carrasco (1981) 118 Cal.App.3d 936, 947.) Defendant’s actions before, during, and after his visit were consistent with those of an individual expecting to find and smuggle into the general prison population the balloon that was left on the condiments table in the visiting room. The circumstantial evidence was persuasive that defendant had arranged to have his visitor bring the narcotics into the prison, and the jury was by no means bound to accept defendant’s explanation that he innocently discovered them. The evidence was sufficient.
2. The Razor Blade Evidence Was Properly Admitted
Defendant contends the court abused its discretion by allowing the razor blade evidence because it was untimely disclosed, and that the court’s ruling had the effect of violating his constitutional rights to a fair trial and due process of law.
Respondent contends defendant has failed to provide a record adequate to permit appellate review of this issue. While the record could be more complete, the basis of the court’s ruling may be gleaned from subsequent references to it on the record by the court and the parties. Therefore, we proceed to the merits.
Facts
On the first day of trial, Officer Rodriguez informed the prosecutor that following recovery of the contraband, defendant expelled two razor blades from his nasal cavity. The prosecutor notified the court and defense counsel, who objected to admission of the evidence. The court excluded the razor blade evidence because it had not been disclosed prior to trial.
The court revisited its ruling during cross-examination of defendant. Defendant testified that he placed his finger into his ear to lubricate it with ear wax so that he could insert the balloon in his anus. Defendant acknowledged that he used Three Flowers Hair Grease to moisten his hair, and that some of the grease may have inadvertently gotten into his ear while he was attempting to lubricate his finger with ear wax, but he denied putting the hair grease in his ear prior to entering the visiting room. The prosecutor then asked whether defendant had anything else in his possession prior to the visit that would facilitate the smuggling of drugs. Defense counsel objected because the question sought to elicit information that the court had excluded. The court responded: “Not now. He made it relevant; overruled.” Defendant admitted it would be helpful to have a razor blade so that he could cut through his pants leg and dispose of the contraband. Defendant denied having razor blades on the day of the visit or expelling them in front of Officer Rodriguez.
In rebuttal, the People recalled Officers Rodriguez and Gambill, who testified that defendant expelled the small disposable blades. Defendant said he planned to use the blades if he got caught to cut his jumpsuit and toss the contraband into a common area when no one was looking so he could deny he possessed it.
Defense counsel initially objected to the rebuttal testimony because it had not been disclosed during discovery, but the court responded that defendant could “cover it on cross, and I’m going to give the late discovery instruction.”
During an extensive cross-examination regarding the razor blade evidence, Officer Rodriguez admitted failing to mention it in his report of the incident, or to retain the blades as evidence.
The court thereafter gave CALJIC No. 2.28, which informed the jury that it could take Officer Rodriguez’s belated disclosure of the razor blade evidence into consideration in assessing its weight.
As given to the jury, CALJIC No. 2.28 states: “The prosecution and the defense are required to disclose to each other before trial the evidence each intends to present at trial so as to promote the ascertainment of the truth, save court time and avoid any surprise that may arise during the course of the trial. Delay in the disclosure of evidence may deny a party a sufficient opportunity to subpoena necessary witnesses or produce evidence which may exist to rebut the non-complying party’s evidence. Disclosures of evidence are required to be made at least 30 days in advance of trial. Any new evidence discovered within 30 days of trial must be disclosed immediately. In this case, the People failed to timely disclose the following evidence: The statement of Defendant Stull to Officer Rodriguez in the body cavity surveillance cell, and the discovery of two razor blades. Although the People’s failure to timely disclose evidence was without lawful justification, the [c]ourt has, under the law, permitted the production of this evidence during the trial. [¶] The weight and significance of any delayed disclosure are matters for your consideration. However, you should consider whether the untimely disclosed evidence pertains to a fact of importance, something trivial or subject matters already established by other credible evidence.”
Analysis
At least 30 days prior to trial, a prosecuting attorney in possession of statements by any defendant must disclose those statements to all defendants. (Pen. Code, §§ 1054.1, subd. (a), 1054.7.) A violation may be sanctioned with an instruction to the jury advising of the failure to disclose the evidence. (Pen. Code, § 1054.1, subd. (b).) If all other sanctions have been exhausted, the court may prohibit the testimony of a witness. (Id., § 1054.5, subd. (c).) We review the court’s ruling pursuant to the abuse of discretion standard. (People v. Ayala (2000) 23 Cal.4th 225, 299.)
Citing Wardius v. Oregon (1973) 412 U.S. 470, 476-479 [37 L.Ed.2d 82, 88-90], which held that a severe evidentiary sanction imposed pursuant to a nonreciprocal discovery statute violated the criminal defendant’s due process rights, defendant “submits that the trial court’s eventual ruling here deprived appellant of his due process rights of fair trial based on reciprocal discovery.” Defendant overstates his case.
The trial court’s decision to allow cross-examination and rebuttal with respect to the razor blade evidence was necessitated by defendant himself, who denied knowing that the balloon was in the condiments, that it contained controlled substances, or that he lubricated his ear with hair grease. When the prosecutor asked defendant if he had taken any other action prior to his visit to facilitate smuggling contraband from the visiting room, defendant objected because the razor blade evidence had been excluded. The court’s response--“not now. He made it relevant; overruled”--shows that the exclusionary ruling extended to evidence presented as part of the prosecution’s case-in-chief, but did not prohibit using the razor blade evidence as proper impeachment of defense witnesses. It was within the court’s discretionary power to revise that ruling to reflect the change in circumstances occasioned by defendant’s testimony.
“A number of decisions have held that notwithstanding the existence of a constitutional or other legal impediment barring the prosecution from introducing certain evidence to establish a defendant's guilt, the evidence may be used to impeach a testifying defendant. (See, e.g., Harris v. New York (1971) 401 U.S. 222, 225 [] [28 L.Ed.2d 1 [statements obtained in violation of Miranda]; Walder v. United States (1954) 347 U.S. 62, 65, 74 S.Ct. 354, 98 L.Ed. 503 [evidence obtained in violation of the Fourth Amendment]; People v. May (1988) 44 Cal.3d 309, 315 [May] [statements obtained in violation of Miranda]; People v. Coleman (1975) 13 Cal.3d 867, 889 [][probationer's testimony at probation revocation hearing]; People v. Crow (1994) 28 Cal.App.4th 440, 452 [][statements made during plea negotiations].)” (People v. Pokovich (2006) 39 Cal.4th 1240, 1246.)
We note that the court tailored its order to maintain a sanction based on the People’s untimely disclosure, while avoiding the unfairness of allowing defendant to present a virtually unimpeachable account of his lack of preparation for the visit. We also note that the court permitted extensive cross-examination of Officers Rodriguez and Gambill, and instructed the jury that it had the power to determine the weight to be given the razor blade evidence. Considering defendant’s disavowal of any preparatory acts, the court’s modification of its previous discovery order was well within its discretion, and did not violate either the California or United States Constitutions.
With respect to the notion that the court’s ruling deprived defendant of reciprocal discovery rights, we have no reason to believe that the court would not have fashioned an equally onerous order against the People had they attempted to take advantage of a prior favorable discovery ruling in a comparable manner.
3. Admission of the Razor Blade Evidence Did Not Violate Defendant’s Fifth Amendment Rights
In a variation of the preceding argument, defendant proposes that “[t]he prosecution’s failure to produce appellant’s statements and the trial court’s reversal of position made appellant’s waiver less than the knowing and intelligent one required by the Fifth Amendment.”
The right to testify in one’s own defense does not encompass a right to present lies or half-truths. (People v. Jackson (1993) 15 Cal.App.4th 1197, 1203-1204.) “The adversary process could not function effectively without adherence to rules of procedure that govern the orderly presentation of facts and arguments to provide each party with a fair opportunity to assemble and submit evidence to contradict or explain the opponent’s case. The trial process would be a shambles if either party had an absolute right to control the time and content of his witnesses’ testimony.” (Taylor v. Illinois (1988) 484 U.S. 400, 410-411 [98 L.Ed.2d 798, 811].) “‘A defendant who chooses to testify waives his privilege against compulsory self-incrimination with respect to the testimony he gives, . . .’” (Harrison v. United States (1968) 392 U.S. 219, 222 [20 L.Ed.2d 1047, 1051]; People v. Malone (2003) 112 Cal.App.4th 1241, 1245.) Defendant’s denials of preparatory actions, if left unrebutted, would have left the jury with a skewed view of the evidence on this key issue. Admission of the razor blade evidence was proper impeachment and did not violate defendant’s Fifth Amendment rights.
4. Counsel Was Not Ineffective
Defendant finally contends that his trial counsel was ineffective to the extent that any failure to object forfeited any issue with respect to the razor blade evidence. Since we have reached the merits of defendant’s arguments, this issue is moot.
5. The Lab Analysis and Drug Program Fees are Unauthorized
The court designated as the principal term the conviction for possession of illegal substance in a state prison. (Pen. Code, § 4573.6.) Sentencing was stayed on the remaining convictions. (Id., § 654.) The judgment also includes a $50 criminal laboratory analysis fee (Health & Saf. Code, § 11372.5, subd. (a)) and $150 drug program fee. (Id., § 11372.7, subd. (a).) A violation of Penal Code section 4573.6 is not one of the offenses to which fines are applicable under either Health and Safety Code section 11372.5 or 11372.7. Consequently, those fines must be stricken.
Health and Safety Code section 11372.5, subdivision (a) provides: “(a) Every person who is convicted of a violation of Section 11350, 11351, 11351.5, 11352, 11355, 11358, 11359, 11361, 11363, 11364, 11368, 11375, 11377, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, 11382, 11383, 11390, 11391, or 11550 or subdivision (a) or (c) of Section 11357, or subdivision (a) of Section 11360 of this code, or Section 4230 of the Business and Professions Code shall pay a criminal laboratory analysis fee in the amount of fifty dollars ($50) for each separate offense. The court shall increase the total fine necessary to include this increment.
DISPOSITION
The fines imposed pursuant to Health and Safety Code sections 11372.5 and 11372.7 are stricken and the trial court is directed to prepare an amended abstract of judgment reflecting this disposition and to forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: SIMS, Acting P.J., BUTZ, J.
“With respect to those offenses specified in this subdivision for which a fine is not authorized by other provisions of law, the court shall, upon conviction, impose a fine in an amount not to exceed fifty dollars ($50), which shall constitute the increment prescribed by this section and which shall be in addition to any other penalty prescribed by law.”
Section 11372.7, subdivision (a) provides: “(a) Except as otherwise provided in subdivision (b) or (e), each person who is convicted of a violation of this chapter shall pay a drug program fee in an amount not to exceed one hundred fifty dollars ($150) for each separate offense. The court shall increase the total fine, if necessary, to include this increment, which shall be in addition to any other penalty prescribed by law.”