People v. ParodiPeople v. Parodi
Opinion
Pursuаnt to a negotiated bargain, defendant David W. Parodi entered a plea of no contest to willfully bringing a controlled substance into a jail facility in violation of Penal Code section 4573 (section 4573).
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On April 22, 2010, at approximately 1:00 a.m., Deputy Sheriff Chris Cloney was driving his patrol vehicle when he saw defendant walking by the side of the road. Cloney decided to contact defendant because he wаs wearing black clothing, carrying a plastic duffle bag, and had an illuminated flashlight. After contacting defendant, Cloney’s partner searched the area nearby and found two foil packages appearing to contain methamphetamine, and a cleаr plastic baggie with a small amount of marijuana. Defendant was placed under arrest and searched.
Defendant was transported to the jail for booking. At the entrance to the facility, a posted sign approximately 18 inches by 18 inches in size states that it is a violation of the Penal Code to bring any contraband inside. Cloney searched defendant a second time before bringing him into the jail, and asked him if he had anything on his person that he would prefer not to bring inside. Defendant responded that he did not. After he was brought inside the jail, defendant was searched by a jail deputy who found a green plastic baggie inside his right sock that contained suspected methamphetamine. The substance was later determined to be 0.6 grams of methamphetamine. When Cloney asked defendant about the greеn plastic baggie, defendant told him that he had forgotten it was there.
On June 14, 2010, an information was filed accusing defendant of unlawful possession of methamphetamine (
On November 8, 2010, defendant entered a negotiated plea of no contest to willfully bringing a controlled substance into a jail facility. The remaining charge was dismissed. Defendant entered into the plea agreement with the understanding that he would either be sentenced under Proposition 36 or be sentenced to probation with 60 days in county jail, depending on the trial court’s ruling as to whether section 4573 precludes the application of Proposition 36.
On November 24, 2010, the People filed a motion asserting defendant was ineligible for Proposition 36 treatment as a result of his cоnviction of violating section 4573.
On December 3, 2010, the trial court denied defendant’s motion, suspended imposition of sentence, and placed defendant on three years of supervised probation contingent on serving 60 days in county jail and paying various fees, fines, and assessments. The court issued a certificate of probable cause to allow defendant to appeal its mling regarding Proposition 36.
DISCUSSION
“Following the enactment of Proposition 36, the ‘Substance Abuse and Crime Prevention Act of 2000,’ which took effect July 1, 2001, a defendant who has been convicted of a ‘nonviolent drug possession offense’ must receive probation and diversion into a drug treatment program, and may not be sentenced to incarceration as an additional term of probation.” (People v. Canty (2004)
Defendant claims the trial court erroneously determined that a section 4573 conviction categorically precludes a grant of probation under the Substance Abuse and Crime Prеvention Act of 2000 (the Act). When interpreting statutory language, we give the words their ordinary meaning. (Canty, supra,
Under the Act, the term “nonviolent drug possession offense” is defined as “the unlawful personal use, possession for personal use, or transportation for personal use of any controlled substance identified in Section 11054, 11055, 11056, 11057 оr 11058 of the Health and Safety Code, or the offense of being under the influence of a controlled substance in violation of Section 11550 of the Health and Safety Code.” (§ 1210, subd. (a).) The Act further provides that the “term ‘nonviolent drug possession offense’ does not include thе possession for sale, production, or manufacturing of any controlled substance and does not include violations of
The crime of violating section 4573 is committed by a person who “knowingly brings” into a jail “any controlled substance, the possession of which is prohibited by . . . the Health and Safety Code . . . .” (§ 4573.) The statute does not distinguish between substances that are brought in for personal use or for the use of others. While defendant argues there was no allegation that the methamphetamine found in his sock was intended for anything other than his personal use, our analysis must focus on the crime of which he was convicted. (See, e.g., Wheeler, supra,
In Canty, the Supreme Court considered whether a defendant convicted of transporting methamphetamine, a felony, and driving a vehicle while under the influence of a controlled substance, a misdemeanor, has been “ ‘convicted in the same proceeding of a misdemeanor not related to the use of drugs’ ” within the meaning of section 1210.1, subdivision (b)(2), and section 1210, subdivision (d). (Canty, supra,
Likewise in People v. Moniz (2006)
Here, the principal focus of section 4573 is not on simple possession or use of illegal drugs, but rather on the act of bringing such unauthorized substances into a custodial setting. The rationale for discouraging this sort of conduct is obvious, and goes well beyond the problems associated with personal use of controlled substances.
Defendant argues that under the maxim of statutory construction expressio unius est exclusio alterius, the legislative designation of sections 4573.6 and 4573.8 as crimes outside the purview of nоnviolent drug possession offenses eligible for Proposition 36 treatment indicates that the Legislature specifically determined the crime of bringing controlled substances into jail constitutes an eligible nonviolent drug possession offense. He claims, “There are cogent reasons why the [Legislature] may have determined to categorically exempt possession of controlled substances in jail offenses from Proposition 36’s scope but not bringing controlled substances into jail offenses.” For example, he suggests the Legislature could have envisioned circumstances such as occurred here, where an arrestee simply forgets that he has secreted contraband upon his person. He also posits that the Legislature may have been
In our view, the Legislaturе most likely amended section 1210, subdivision (a), to specifically exclude sections 4573.6 and 4573.8 from Proposition 36’s coverage because those sections expressly address the possession of controlled substances in secured facilities. The Legislature apparently wanted to exclude possession offenses committed in jails and prisons from the scope of Proposition 36. It was thus not necessary to expressly exclude section 4573 because that section proscribes the smuggling of controlled substances into correсtional facilities; it does not punish possession of controlled substances.
Based both on the language and the express intent of Proposition 36, we conclude the crime of bringing a controlled substance into a correctional facility in violation of sеction 4573, even when the drugs are intended entirely for personal use, does not come within the term “nonviolent drug possession offense” as defined by Penal Code section 1210, subdivision (a).
DISPOSITION
The judgment is affirmed.
Margulies, Acting P. J., and Banke, 1, concurred.
Appellant’s petition for review by the Supreme Court was denied November 30, 2011, S196984.
Notes
Sectiоn 4573 provides in part: “Except when otherwise authorized by law,. . . any person, who knowingly brings or sends into . . . any state prison ... or into any county, city and county, or city jail. . . any controlled substance, the possession of which is prohibited by . . . the Health and Safety Code ... is guilty of a felоny punishable by imprisonment in the state prison for two, three, or four years. fiD 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.” All further undesignated statutory references are to the Penal Code.
Section 4573.6 provides, in part: “Any person who knowingly has in his or her possession in any state prison ... or in any county, city and county, or сity jail . . . any controlled substances, the possession of which is prohibited by ... the Health and Safety Code . . . without being authorized to so possess the same by the rules of the Department of Corrections, rules of the prison or jail ... or by the specific authorization of the warden, superintendent, jailer, or other person in charge ... is guilty of a felony punishable by imprisonment in the state prison for two, three, or four years.”
Section 4573.8 provides, in part: “Any person who knowingly has in his or her possession in any state prison ... or in any county, city and county, or city jail. . . drugs in any manner, shape, form, dispenser, or container, any device, contrivance, instrument, or paraphernalia intended to be used for unlawfully injecting or consuming drugs, or alcoholic beverages, without being authorized to possess the same by rules of the Department of Corrections, rules of the prison or jail, ... or by the specific authorization of the warden, superintendent, jailer, or other person in charge ... is guilty of a felony.”
“Section 4573.6 is related to, and to be construed together with, . . . sections 4573 and 4573.5, which prohibit bringing or sending drugs or drug paraphernalia into a prison or jail. [Citation.] Obviously, the ultimate evil with which the Legislature was concerned was drug use by prisoners. Nevertheless, it chose to take a prophylactic approach to the problem by attacking the very presence of drugs and drug paraphernalia in prisons and jails.” (People v. Gutierrez (1997)