Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Imperial CountySuper. Ct. No. JCF19096, Jeffrey Bruce Jones, Judge. Affirmed.
O'ROURKE, J.
An indictment filed on December 14, 2006, charged Jacori Arnold with possessing marijuana in prison (Pen. Code, §§ 4573.6, 1170.1, subd. (c)), possessing heroin in prison (§§ 4573.6, 1170.1, subd. (c)), and possessing narcotics paraphernalia in prison (§§ 4573.6, 1170.1, subd. (c)), and alleged two strikes (§ 667 subds. (b)-(i)). The indictment charged Arnold's cell mate, Lamont E. Kelly, with the same substantive offenses and alleged two strikes. On February 8, 2007, Kelly entered a negotiated no contest plea to possessing marijuana in prison and the court granted the People's motion to dismiss the indictment against Arnold. On February 28 Arnold filed a petition for finding of factual innocence (§ 851.8, subd. (c)). On March 22 the court denied the petition. Arnold appeals, contending the court erred by denying the petition because there was no reasonable cause to arrest him for possessing controlled substances or narcotics paraphernalia in prison. We affirm.
Statutory references are to the Penal Code unless otherwise specified.
BACKGROUND
In support of his petition, Arnold offered his own declaration; the testimony of correctional officer Adam Castillo, set forth in the reporter's transcript of the grand jury proceedings; and Kelly's live testimony. The People cross-examined Kelly, but did not put on any affirmative evidence.
Arnold's Declaration
At approximately 5:15 p.m. on March 15, 2005, Arnold was using the toilet in his cell. He had blocked the door with a laundry bag because he felt vulnerable to attack while he used the toilet. When he finished using the toilet, he complied with the correctional officer's request to place his back to the door with his hands behind his back so he could be handcuffed. He did not know Kelly had any drugs or paraphernalia in the cell on the day of the incident. Arnold was assigned to the upper bunk and Kelly was assigned to the lower bunk.
Castillo's Testimony
At approximately 5:15 p.m. on March 15, 2005, Kelly refused to enter his cell. Arnold, Kelly's cell mate, was in the cell and refused to open the door. The door was jammed by an unknown object — an "inmate-locking device." A correctional officer in the control booth made repeated unsuccessful attempts to open the door remotely. Castillo sounded his alarm and ordered Kelly to the ground. Kelly complied, and other prison staff handcuffed him. Castillo ordered Arnold to place his hands through the food port to be handcuffed. He complied. Castillo asked the control booth officer to open the door, and the door opened. Prison staff took Arnold and Kelly elsewhere, and Castillo searched their cell. In the lower bunk, between the mattress and a foam pad, Castillo found 26 small bindles, two large bindles, four cigarettes, two grayish-black rocks in a bindle, and two glass tubes, approximately one and one-half inches long, used for smoking heroin. Kelly was assigned to the lower bunk.
Kelly's Testimony
On the date of the incident, Kelly and Arnold had been cell mates for approximately two years. They got along with each other. When asked whether he and Arnold shared things, Kelly replied, "Time to time you got to scratch your back." The controlled substances in the cell belonged to Kelly. Arnold did not know they were there. An argument, physical conflict, or a stabbing could arise if one cell mate was disrespectful to the other. It would be disrespectful for an inmate not to tell his cell mate that he was bringing contraband into the cell.
The Trial Court's Ruling
The court stated it was uncontroverted that drugs were found under Kelly's bunk; Kelly testified that, to his knowledge, Arnold did not know about the drugs; and Arnold was doing something to impede the officers' entry into the cell, indicating he may have known about the contraband and wanted to prevent the officers from finding it. The court noted it was "not uncommon for one cellmate to take responsibility for contraband . . . ." It concluded this evidence was not enough for a trial, but was enough for a probable cause determination. It therefore denied the petition.
DISCUSSION
A defendant who is arrested and indicted, but not convicted, "may, at any time after dismissal of the action, petition the court that dismissed the action for a finding that the defendant is factually innocent of the charges. . . ." (§ 851.8, subd. (c).) The defendant bears the initial burden of proving "that no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made." (Id. subd. (b).) "The arrestee thus must establish that facts exist which would lead no person of ordinary care and prudence to believe or conscientiously entertain any honest and strong suspicion that the person arrested is guilty of the crimes charged. [Citation.] [¶] Establishing factual innocence . . . entails establishing as a prima facie matter not necessarily just that the arrestee had a viable substantive defense to the crime charged, but more fundamentally that there was no reasonable cause to arrest him in the first place." (People v. Matthews (1992) 7 Cal.App.4th 1052, 1056.) If the defendant makes the requisite showing, the burden shifts to the People to prove "that a reasonable cause exists to believe that the petitioner committed the offense . . . ." (§ 851.8, subd. (b).)
"A finding of factual innocence . . . shall not be made unless the court finds that no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made." (§ 851.8, subd. (b).) "In other words, the trial court cannot grant relief if any reasonable cause warrants such a belief." (People v. Adair (2003) 29 Cal.4th 895, 904.) "In sum, the record must exonerate, not merely raise a substantial question as to guilt." (Id. at p. 909.)
The appellate court defers to the trial court's factual findings supported by substantial evidence (People v. Adair, supra, 29 Cal.4th at pp. 897, 905-906), but independently reviews the record to determine whether "no person of ordinary care and prudence [would] believe or conscientiously entertain any honest and strong suspicion that the [defendant] is guilty of the crimes charged." (Id. at p. 907, quoting People v. Matthews, supra, 7 Cal.App.4th at p. 1056.)
" '[Some] legal defenses may be so related to the defendant's own conduct that the existence of the defense negates a requisite element of the offense or otherwise eliminates culpability, thereby revealing no reasonable cause to believe the arrestee committed an offense and establishing factual innocence . . . .' " (People v. Laiwala (2006) 143 Cal.App.4th 1065, 1072, quoting People v. Matthews, supra, 7 Cal.App.4th at pp. 1056-1057. Arnold contends he presented evidence negating two elements of the offenses: exercise of control over the contraband and knowledge of its presence. He claims the burden therefore shifted to the People to show there was reasonable cause to believe he possessed the contraband, and the People did not meet this burden. Arnold is incorrect; his evidence did not negate these two elements and the burden did not shift.
Section 4573.6 states: "Any person who knowingly has in his or her possession in any state prison . . . any controlled substances, 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 . . . consuming controlled substances, without being authorized to so possess the same . . . is guilty of a felony . . . ." The elements of the offense of possessing a controlled substance are possession — actual or constructive, exclusive or joint — of a usable quantity, with knowledge of its presence and illicit character. (People v. Palaschak (1995) 9 Cal.4th 1236, 1242; People v. Montero (2007) 155 Cal.App.4th 1170, 1175-1177.) These elements may be established by circumstantial evidence. (People v. Palaschak, supra, 9 Cal.4th at p. 1242 .)
The lack of authorization is not an element of the offense; rather, authorization is a defense. People v. George (1994) 30 Cal.App.4th 262, 275.)
It is reasonable to conclude that Arnold knew about the marijuana and heroin, he was aware of their illicit character and he possessed them jointly with Kelly. It was considered disrespectful for an inmate not to tell his cell mate about contraband in the cell, and this could cause a physical conflict or a stabbing. Arnold and Kelly however, had been cell mates for approximately two years, got along with each other, and apparently shared things from time to time. There were two smoking tubes in the cell, not just one. Both Arnold and Kelly acted to keep the correctional officers out of their cell, Arnold by refusing to open the door and jamming it and Kelly by refusing to enter. The dismissal of the charges against Arnold occurred at the same time Kelly entered his negotiated guilty plea. Such a dismissal "does not necessarily imply factual innocence, but rather may reflect the result of a negotiated or pragmatic disposition of the case." (People v. Matthews, supra, 7 Cal.App.4th at p. 1056 [dismissal in the interests of justice (§ 1385)].) Finally, the substances in the cell were clearly of usable quantities, Kelly admitted they were controlled substances, and Arnold does not dispute the fact that they were marijuana and heroin. Similarly, it is reasonable to conclude that Arnold possessed the smoking tubes.
The court did not err by denying the petition for finding of factual innocence.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., BENKE, J.