Opinion
C079074
03-23-2018
THE PEOPLE, Plaintiff and Respondent, v. JOSE THEODORO PEREZ, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14F6969)
A jury convicted defendant Jose Theodoro Perez of bringing marijuana into or onto the grounds of a penal institution (the Shasta County Alternative Custody Program). The trial court placed defendant on probation for three years with one year in jail.
Defendant now contends the trial court should have dismissed the charge because (1) the Alternative Custody Program facility is not a penal institution, and (2) the prosecution produced insufficient evidence that defendant brought marijuana into or onto the grounds of the facility.
We conclude (1) the Alternative Custody Program facility is a penal institution where inmates are in custody, and (2) the evidence establishes defendant brought marijuana onto the grounds of the penal institution even if he did not take it into a building or fenced area. Accordingly, we will affirm the judgment.
BACKGROUND
Defendant was sentenced in Shasta County to 90 days in jail in a prior action. In connection with that sentence, he agreed to participate in the Alternative Custody Program, which allows inmates to live away from jail but requires them to work eight hours each day in lieu of physical incarceration. Defendant agreed to report to work Monday through Friday of each week. He was notified that he was in custody as a Shasta County Inmate while he participated in the program.
Inmates were required to report to the Alternative Custody Program on Breslauer Way in Redding each day for their work assignments. The Breslauer campus has open public parking lots and sidewalks, and the Alternative Custody Program shares the campus with other county agencies. The inmates congregate at 8:00 a.m. each day in one of the open areas for roll call and to be sent out to work sites.
On November 13, 2014, defendant was in one of the open areas where inmates park and gather to be sent out to work sites. The unpaved area is composed of gravel next to the laundry area and tool storage area of the Alternative Custody Program facility.
Parole agent William Harrison was at the Alternative Custody Program facility that morning. He called defendant over to talk to him. In response, defendant walked over to a sidewalk next to the administration building of the Alternative Custody Program facility. The sidewalk is between a gravel parking lot and the building.
Defendant appeared nervous. Agent Harrison asked him why he was nervous, and defendant said he had a friend's marijuana in his backpack. Agent Harrison searched the backpack and found marijuana.
The People charged defendant with one count of bringing a controlled substance into or onto the grounds of a penal institution in violation of Penal Code section 4573. After the close of the prosecution's case at trial, defendant made a section 1118.1 motion to dismiss the charge. The trial court denied the motion and the jury convicted defendant on that count.
Undesignated statutory references are to the Penal Code. --------
At sentencing, the trial court granted defendant's motion to dismiss a prior strike conviction allegation, suspended imposition of sentence, and placed defendant on probation for three years with a one-year jail term.
STANDARD OF REVIEW
" ' "The standard applied by a trial court in ruling upon a motion for judgment of acquittal pursuant to section 1118.1 is the same as the standard applied by an appellate court in reviewing the sufficiency of the evidence to support a conviction, that is, 'whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged.' " [Citation.] "The purpose of a motion under section 1118.1 is to weed out as soon as possible those few instances in which the prosecution fails to make even a prima facie case." [Citations.] The question "is simply whether the prosecution has presented sufficient evidence to present the matter to the jury for its determination." [Citation.] The sufficiency of the evidence is tested at the point the motion is made. [Citations.] The question is one of law, subject to independent review.' [Citation.]" (People v. Maciel (2013) 57 Cal.4th 482, 522.)
DISCUSSION
I
Defendant contends the Alternative Custody Program facility is not a penal institution under section 4573.
Section 4573, as relevant to this case, provides: "[A]ny person, who knowingly brings or sends 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 . . . is guilty of a felony . . . ." (§ 4753, subd. (a).)
This is an issue of statutory interpretation. "The rules governing statutory construction are well settled. We begin with the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative intent. [Citations.] 'In determining intent, we look first to the language of the statute, giving effect to its "plain meaning." ' [Citations.] Although we may properly rely on extrinsic aids, we should first turn to the words of the statute to determine the intent of the Legislature. [Citation.] Where the words of the statute are clear, we may not add to or alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history. [Citation.]" (Burden v. Snowden (1992) 2 Cal.4th 556, 562.)
Although the alternative sentencing program facility is not specifically enumerated in the statute, it falls within the statutory language referencing a "place where prisoners or inmates are located under custody of any sheriff, chief of police, peace officer, probation officer or employees." (§ 4573, subd. (a).) Inmates were in the custody of peace officers at the Alternative Custody Program facility, and so was defendant when he reported to the program facility for assignment to a work site.
Defendant argues we should interpret the statute differently, relying primarily on People v. Hernandez (1978) 90 Cal.App.3d 309, but Hernandez is inapposite because in that case marijuana was dropped off for the defendant about a quarter-mile away from the penal institution, and an officer retrieved it before the defendant could obtain it. (Hernandez, supra, 90 Cal.App.3d at p. 312.) Although the People argued the defendant arranged to send marijuana into a place where inmates were located, the Court of Appeal held the "other places" language in section 4573 refers to penal institutions. (Id. at pp. 311-312, 315-316.) However, Hernandez does not stand for the proposition that the honor farm in that case was not a penal institution covered by section 4573; rather, it stands for the proposition that bringing contraband into a penal institution does not include depositing the contraband a quarter-mile away from that institution.
Applying the language of section 4573, we conclude the Alternative Custody Program facility is a penal institution under the statute.
II
Defendant next contends he did not bring marijuana "into" or "within the grounds belonging to" a penal institution. He claims he only brought the marijuana to an area adjacent to the Alternative Custody Program facility. Defendant argues the actual grounds of the facility are surrounded by a chain link fence.
Statutory interpretation is a question of law, but it is a factual question whether the sidewalk next to the alternative program was "within the grounds belonging to the institution." Although there is evidence that various agencies shared the campus, nothing in the record contradicts the jury's implicit finding, in convicting defendant under section 4573, that the sidewalk where the marijuana was found, and the gravel area where inmates were directed to congregate, were within the grounds belonging to the alternate program. Viewing the evidence in the light most favorable to the judgment, as we must, we conclude defendant was within the grounds belonging to the penal institution.
Defendant notes that before 1949, section 4573 prohibited bringing a controlled substance into a penal institution "or within the grounds belonging or adjacent to any such institution." (Stats. 1943, ch. 108, § 4, p. 809.) A 1949 amendment deleted "or adjacent to," leaving "or within the grounds belonging to any such institution." (Stats. 1949, ch. 833, § 1, p. 1583.) We need not determine what the Legislature intended in making such a change, however, because we conclude defendant was within the grounds belonging to the penal institution. The evidence is sufficient to establish that defendant violated section 4573.
DISPOSITION
The judgment is affirmed.
/S/_________
MAURO, J. We concur: /S/_________
BLEASE, Acting P. J. /S/_________
HULL, J.