People v. Berg
People v. Berg
Opinion of the Court
*961A jury convicted defendant Andrew Marshall Berg of knowingly possessing methamphetamine in the Monterey County Jail ( *962Pen. Code, § 4753.6, subd. (a) ). Defendant argues the trial court abused its discretion by excluding evidence of defendant's voluntary intoxication at the time of his arrest almost two days before the methamphetamine was discovered. Because evidence of voluntary intoxication is inadmissible to negate the presence of general criminal intent ( Pen. Code, § 29.4, subd. (a) ), we will find no prejudicial error. We will modify a clerical error in the abstract of judgment and affirm the judgment as modified.
I. TRIAL COURT PROCEEDINGS
When defendant was searched in the Monterey County Jail almost two days after his misdemeanor arrest, a sheriff's deputy noticed plastic wrapping in between defendant's buttocks that was later found to contain methamphetamine. Defendant was charged with one felony count of knowingly possessing methamphetamine in jail. ( Pen. Code, § 4573.6, subd. (a) ; unspecified statutory references are to this Code.)
A. PRETRIAL MOTIONS
In the felony case, the prosecution moved in limine to exclude testimony about defendant's intoxication at the time of his arrest for the underlying misdemeanor, citing Evidence Code sections 350 and 352. According to the arresting officer's report which was summarized in the motion, the officer observed defendant cross a street with no regard for traffic and then drink from a pint-sized bottle of whiskey. Defendant smelled strongly of alcohol and had slurred speech. He was arrested for public intoxication (§ 647, subd. (f) ).
In support of the motion, the prosecutor argued that because the methamphetamine was discovered almost two days after defendant entered the jail, "common knowledge" dictated that defendant had "sufficient time to be aware of what [was] going on" such that defendant's intoxication when he entered the jail was irrelevant. Defense counsel argued that the intoxication evidence was relevant to defendant's ability to be aware of the presence of contraband and that the jury should be allowed to determine how intoxication *631might affect his knowledge. The court granted the motion and excluded evidence of defendant's intoxication, reasoning that intoxication two days before the methamphetamine was found was minimally relevant to the issue of defendant's knowledge that he possessed the contraband when it was discovered.
Citing People v. Low (2010)
*963The court denied the request, stating that "to say that the defendant needed an opportunity [to dispose of the contraband] ... would be asking for something that is simply not an element" of section 4573.6.
B. TRIAL
The jail classification sergeant appeared as the custodian of records for the jail. He testified that defendant entered the jail at around 2:00 p.m. and was placed in a "safety cell." A safety cell has padded walls to prevent inmates from hurting themselves, contains no furniture, and has no toilet other than a hole in the ground covered with a grate. After about 24 hours, defendant was moved to a single-occupancy cell with a sink and a toilet. The sergeant testified that a notation on a jail intake questionnaire stated defendant was uncooperative and refused to answer questions when he was moved to the single cell.
A sheriff's deputy testified that he encountered defendant roughly 48 hours after defendant entered the jail. Defendant was in the same single cell he had been transferred to 24 hours earlier. The deputy explained that inmates are placed in a single cell if there is "some kind of circumstance going on ... in which they need to be by themselves, or ... a mental issue or he's just being difficult upon intake."
The deputy escorted defendant to the booking area, where inmates change out of their civilian clothes and are given jail clothing after a visual strip search. As defendant changed out of his civilian clothes, he reached toward his "anus" and started "[d]igging, trying to push or pull something." The deputy noticed plastic wrapping between defendant's buttocks. Defendant eventually threw the plastic package onto the floor. The deputy recalled that when defendant was asked what was in the plastic, defendant sarcastically answered "to the effect of, 'Something not readily available at your local 7-Eleven.' "
The deputy unwrapped the plastic, which had feces on it, and found a bindle containing a clear crystalline substance that the deputy believed was methamphetamine based on his training and experience. The substance weighed approximately 0.2 grams, was the size of a "big pea," and looked to the deputy like it contained enough material to allow someone to snort it. A criminalist testified as an expert in controlled substance testing and confirmed that the substance contained methamphetamine.
The jury found defendant guilty as charged. The trial court sentenced defendant to the low term of two years for possessing a controlled substance in jail, finding that due to his former military service defendant had a mental *964or physical condition which mitigated his culpability. ( §§ 4573.6, subd. (a), 1170, subd. (h)(1).) (The abstract of judgment incorrectly indicates that the trial court imposed a middle term, which we will order modified.) The trial court ordered that one year of the sentence be served in county jail and that execution of the second year be "suspended and deemed a period of mandatory *632supervision" under section 1170, subdivision (h)(5)(B).
II. DISCUSSION
To prove a violation of section 4573.6, the prosecution had to show that defendant possessed methamphetamine in the jail; defendant knew he possessed the methamphetamine; defendant knew that the methamphetamine was a controlled substance; and that the methamphetamine was in a usable amount. ( § 4573.6, subd. (a) ; People v. Carrasco (1981)
Defendant contends the trial court abused its discretion by excluding evidence of his intoxication when he entered the jail, which he argues was relevant to whether he knowingly possessed a controlled substance in jail. We review a trial court's decision to exclude evidence under Evidence Code sections 350 and 352 for abuse of discretion. ( People v. Kelly (1992)
A. VOLUNTARY INTOXICATION AND GENERAL INTENT CRIMES
Defendant concedes that " Penal Code sections 4573 and 4573.6 are general intent offenses." Defendant nonetheless argues that evidence of his voluntary intoxication was admissible under section 29.4 because the "classification of a crime as one of general intent has nothing to do with the required element of knowledge, a specific mental state." To reveal the flaw in defendant's argument, we begin with a brief discussion of general intent versus specific intent classification.
1. General Intent Crimes and Specific Intent Crimes
The Supreme Court explained the history of differentiating between general and specific intent crimes in *965People v. Hood (1969)
The Hood court acknowledged that specific intent and general intent "have been notoriously difficult terms to define and apply," but described general intent as: "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."
*633( Hood , supra , 1 Cal.3d at pp. 456-457,
2. Admissibility of Voluntary Intoxication Evidence ( § 29.4 )
As the Supreme Court explained in Hood , classifying a crime as one of general intent or specific intent is historically linked with whether evidence of voluntary intoxication will be admissible. Section 29.4, subdivision (a) now codifies the general rule: "No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his or her having been in that condition. Evidence of voluntary intoxication shall not be admitted to negate the capacity to form any mental states for the crimes charged, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation, or malice aforethought, with which the accused committed the act." An exception to the general rule of inadmissibility is found in section 29.4, subdivision (b), which provides: "Evidence of voluntary intoxication is *966admissible solely on the issue of whether or not the defendant actually formed a required specific intent , or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought." (Italics added.)
A " 'statute's plain meaning controls the court's interpretation unless its words are ambiguous.' " ( People v. Gonzalez (2008)
If a statute is ambiguous, we may consider extrinsic information, such as legislative history, the statute's purpose, and public policy. ( Gonzalez , supra , 43 Cal.4th at p. 1126,
3. Section 4573.6 is a General Intent Crime
Section 4573.6, subdivision (a) provides, in relevant part: "Any person who knowingly has in his or her possession in any ... jail ... any controlled substances ..., without being authorized to so possess the same by the rules of the ... jail ... is guilty of a felony." That section meets the Hood definition of a general intent crime. It describes a particular act-possession of a controlled substance in a jail-without referring to any intent to do a further act. ( Hood , supra , 1 Cal.3d at pp. 456-457,
Interpreting section 4573.6 as a general intent crime is consistent with the Supreme Court's treatment of similar statutes prohibiting possession of controlled substances as general intent crimes. (See People v. Winston (1956)
As the foregoing demonstrates, section 29.4 provides that voluntary intoxication evidence is admissible only when a defendant is charged with a specific intent crime, and section 4573.6 is a general intent crime. The trial court therefore properly excluded evidence of defendant's voluntary intoxication.
Defendant paraphrases People v. Reyes (1997)
On appeal from his conviction for receiving stolen property, Reyes argued that the expert testimony was admissible under former section 22. ( Reyes , supra , 52 Cal.App.4th at p. 982,
*969And Reyes quoted Whitfield , supra ,
We respectfully disagree with Reyes to the extent it determined that evidence of *636voluntary intoxication is admissible to cast doubt on the scienter element of a general intent crime like section 4573.6. Reyes is based on authorities that are either inapposite or no longer have precedential effect. Fabris and Whitfield are no longer binding because Fabris was disapproved by the Supreme Court and Whitfield was abrogated by the Legislature. (See Atkins , supra , 25 Cal.4th at p. 90, fn. 5,
Defendant argues that evidence of voluntary intoxication "may be introduced by a defendant in order to raise a reasonable doubt regarding a specific mental state, such as knowledge, that is an element of a general intent offense." But that argument is contradicted by the plain language of section 29.4. And defendant's reliance on People v. Ricardi (1992)
Defendant presses that because "knowledge is an element of the offenses described in Penal Code sections 4573 and 4573.6, the Legislature cannot deny appellant the opportunity to prove he did not entertain that mental state." He is apparently urging that due process demands he be allowed to introduce evidence of his voluntary intoxication to prove he did not have the mental state necessary to be convicted under section 4573.6. The United States Supreme Court rejected the same argument in Montana v. Egelhoff (1996)
B. NO ABUSE OF DISCRETION
Our conclusion that evidence of defendant's voluntary intoxication was inadmissible due to section 29.4 informs our review of defendant's other arguments. Defendant argues his intoxication was "clearly relevant to whether he was aware of the presence of the controlled substance when he entered the jail." But defendant's awareness of the controlled substance at the time of his arrest is irrelevant because defendant was charged *637with possessing a controlled substance in jail ( § 4573.6 ), not with bringing a controlled substance into a jail ( § 4573 ). Regardless of any potential relevance of intoxication in the abstract, defendant was not charged with a specific intent crime and evidence of voluntary intoxication cannot negate general criminal intent. ( § 29.4, subd. (a).)
Defendant argues the "issue presented by the evidence was whether having already brought the drugs into the jail unknowingly due to his significant level of intoxication upon entry, was Mr. Berg's continued possession in jail committed with the necessary requirements of knowledge and willfulness?" But defendant did not argue in the trial court or on appeal that he was still intoxicated when authorities discovered the methamphetamine nearly two days later. The lengthy interval between arrest and discovery supports the trial court's conclusion that defendant's intoxication when he entered the jail was irrelevant to the knowledge required to be convicted under section 4573.6. Given the substantial temporal separation, a trial court could reasonably conclude that the probative value of expert testimony on average alcohol metabolism rates would be substantially outweighed by the probability that such evidence would consume undue time and risk confusing the jury. ( Evid. Code, § 352.)
Defendant cites Low , supra ,
Defendant argues that the rationale of Low supports his position because the critical fact emphasized in that case, "the defendant's opportunity to decide whether to purge himself of hidden drugs before entering jail, or whether to bring them inside and commit a new crime, presupposes the defendant knew he possessed the drugs when he entered the jail." (Underscoring omitted.) Again, section 29.4, subdivision (a) forecloses defendant's argument because evidence of voluntary intoxication cannot be used to negate scienter when a general intent crime is charged.
Defendant contends that his case is no different from a situation where a person, "due to a recent head injury or a seizure, or illness," unintentionally enters jail with a controlled substance. But those are all examples of involuntary impairment. A defendant charged under those facts would be entitled to an instruction regarding the effect of unconsciousness on the ability to form any mental state. (E.g., CALCRIM No. 3425 ["The defendant is not guilty of [the charged crime] if [he or she] acted *638while unconscious."]; see People v. James (2015)
Defendant claims his inability to introduce evidence of intoxication converted section 4573.6 to a "strict liability offense." Although defendant could not rely on voluntary intoxication to dispute his knowledge of the presence of plastic packaging in his buttocks or the contents of the packaging, that did not relieve the prosecution of the burden to prove all scienter elements of section 4573.6. Defendant's argument that he was in effect strictly liable for the offense is without merit.
Defendant argues lastly that the purpose of section 4573.6 is to criminalize situations where an inmate obtains a controlled substance from a source inside the jail, rather than situations where a defendant possesses a controlled substance which he himself brought into the jail. Defendant cites no authority for that interpretation, and nothing in the plain language of section 4573.6 restricts its application as suggested by defendant.
*972III. DISPOSITION
The superior court is directed to prepare a corrected abstract of judgment showing that the court imposed the low term for the Penal Code section 4573.6 conviction. As so modified, the judgment is affirmed.
WE CONCUR:
Premo, Acting P. J.
Elia, J.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.