IN THE SUPREME COURT OF CALIFORNIA
Plaintiff and Respondent,
Ct.App. 5 F050325
Defendant and Appellant.
Super. Ct. No. 05CM4995
This case presents issues related to those we decide today in People v. Low
(June 24, 2010, S151961) __ Cal.4th __ (Low), concerning Penal Code section
4573.1 As pertinent here, this statute, which is part of a larger scheme regulating
crimes in prison and jail, makes it a felony for “any person” to “knowingly
bring[ ]” a controlled substance into a custodial setting.
In Low, we conclude that the statute applies to someone who has a
controlled substance in his possession when arrested for another crime, and who
knowingly and voluntarily brings the drugs into jail when booked pursuant to that
arrest. Low relies on the language and history of section 4573, and on similar
statutes banning contraband in custody, to find that the statute does not exempt
persons who enter jail under the specified circumstances, including arrestees.
All further statutory references are to the Penal Code except as otherwise
Low also rejects a claim that section 4573 implicates the Fifth Amendment
privilege against compulsory self-incrimination because the arrestee must choose
before entering jail between admitting unlawful drug possession or violating
section 4573 and risking greater penalties. As Low explains, a violation of section
4573 does not involve compelled self-incriminating “testimony,” but rather the
nontestimonial act of “knowingly bring[ing]” drugs into a correctional facility.
The statute simply prohibits a person detained and brought to jail for one crime
from entering and committing a new drug-related crime inside.
Here, the Court of Appeal reversed the section 4573 conviction for reasons
that deviated from our reasoning in Low today. The court concluded that the
statute does not apply to arrestees brought into jail with controlled substances
secreted on their person because they are not present by choice or pursuant to an
intent to smuggle drugs. The court further indicated that the statutory scheme
raises concerns about self-incrimination under the Fifth Amendment insofar as it
coerces arrestees to admit that they possess drugs, and punishes them more harshly
if they fail to do so and instead bring the drugs into jail.
We disagree with both the reasoning and conclusions of the Court of
Appeal. Under Low, an arrestee’s “involuntary” presence in jail does not negate
the elements of the crime or make prosecution unconstitutional. Section 4573 was
intended to apply in this situation, such persons have a choice not to violate its
terms, and strong reasons exist for not allowing them to freely bring drugs into
jail. The facts of this case demonstrate — perhaps even more clearly than in Low
— that section 4573 involves no compelled incriminating testimony for Fifth
Amendment purposes. Unlike in Low, where the defendant falsely denied
possessing any drugs at the jail entrance, defendant here said nothing substantive
in response to the arresting officer’s warning about bringing drugs with him. Any
difficulty defendant faced in making this choice was largely of his own making.
He committed a nontestimonial act for which he was not immune from
prosecution or conviction under section 4573.
TRIAL COURT PROCEEDINGS
The trial concerned events that occurred in the City of Hanford on
November 24, 2005, Thanksgiving night. Around 11:00 p.m., Officer Jennifer
Machado was patrolling in her police car when she saw Tommy Gastello
(defendant) and his adult son, Johnny, riding bicycles on a dark street. Because
she saw no lights on their vehicles as required by law, Machado stopped the pair
outside an apartment complex. Defendant was holding a knife in one hand as he
grasped the handlebar — an act that Machado did not perceive as threatening or
unlawful. However, defendant seemed agitated, and insisted that Machado justify
the stop. Meanwhile, two other officers arrived. One of them spoke with Johnny.
While engaged in conversation with defendant, Officer Machado suspected
that he was “hid[ing] something.” He spoke at a rapid pace and made odd,
spontaneous statements (e.g., “These pants don’t belong to me”). Based on a
preprinted card she had been trained to use for this purpose, Machado determined
that defendant’s pupils were too constricted and rigid for the lighting conditions.
As a result, she arrested him for being under the influence of a controlled
For safety reasons, Officer Machado took the knife from defendant’s hand.
She also patted down the outside of his clothes, and looked inside his pockets and
waistband for additional weapons. Nothing was found. Machado placed
defendant in the patrol car, and drove him to the Kings County jail.
No Miranda warnings were given at this time. (See Miranda v. Arizona
(1966) 384 U.S. 436.) Defendant subsequently admitted that, one day earlier, he
had smoked marijuana laced with “ice,” or methamphetamine.
Before entering the jail parking lot, Officer Machado stopped the car and
looked at defendant. She said that “it was a felony to bring any narcotics, any
drugs or any weapons into the jail.” She asked whether he understood this
statement. Defendant’s only response was “yes.”
Inside the jail, Officer Machado monitored the booking process. It entailed
a brief medical screening, removal of defendant’s outerwear, including a
sweatshirt, and an inventory search of his property. In the presence of both
Machado and jail staff, defendant placed his belongings on the table for
inspection. All of sudden, he warned Machado not to touch them, saying, “I have
fleas. I have fleas.” As she reached for his sweatshirt, defendant said, “What’s
that?” Machado moved the sweatshirt and saw a small bindle, wrapped in plastic,
containing a crystal-like substance. Defendant remarked, “You planted that on
Chemical analysis revealed that the bindle found in defendant’s sweatshirt
held .32 grams of methamphetamine. The criminalist who performed the testing
determined that the substance was a usable amount. In addition, a toxicologist
analyzed a blood sample that had been taken from defendant in jail. The sample
contained both methamphetamine and morphine. The drugs were present in
sufficiently high amounts that would render the person under the influence of a
controlled substance, and were consistent with “speed balling” — mixing a
stimulant with a depressant for a “roller coaster” effect.
Defendant did not testify at trial. His son, Johnny, who witnessed the
arrest, and defendant’s wife, Kathy, who watched it from an apartment window,
described the actions of the police that night. Kathy admitted that defendant had a
“history” of using methamphetamine and opiates, but she did not see him take any
drugs that day. Johnny, who had a prior felony conviction for drug possession,
also saw no sign that defendant was under the influence of drugs before his arrest.
A jury convicted defendant, as charged, of three counts. Two of them were
felonies, namely, possessing a controlled substance, methamphetamine, under
Health and Safety Code section 11377, subdivision (a), and bringing a controlled
substance into jail under section 4573.3 The third count involved being under the
influence of a controlled substance in violation of Health and Safety Code section
11550, subdivision (a), a misdemeanor.
In a bifurcated proceeding, defendant admitted that he sustained a prior
serious felony conviction for burglary in 1994 (§§ 667, subds. (b)-(i), 1170.12,
subds. (a)-(d)) and served a prior prison term. (§ 667.5, subd. (b).) At sentencing,
the trial court expressed concern over defendant’s long record as “a career dope
addict.” The court noted that while only a modest amount of methamphetamine
was involved in the present case, defendant rejected an opportunity to avoid
Section 4573 reads in full now, as at the time of defendant’s crime, as
follows: “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.” Methamphetamine is a controlled substance for
purposes of section 4573. (See Health & Saf. Code, § 11055, subd. (d)(2).)
violating section 4573 by ignoring the officer’s advice against bringing drugs to
jail. Defendant received a total prison sentence of seven years, which included
concurrent middle terms for both felony counts.
COURT OF APPEAL DECISION
On appeal, defendant challenged his conviction under section 4573. He
argued that because he was arrested and brought to jail on another charge, and
because he was not present for the purpose of bringing drugs inside, he committed
no criminal act and harbored no wrongful intent. Defendant further claimed that
section 4573, as applied to him, violated the self-incrimination and due process
clauses of the Fifth Amendment to the United States Constitution, and parallel
provisions of the state Constitution. The basic theory was that he was coerced into
bringing drugs into jail to avoid admitting that he unlawfully possessed them
outside, and that he is being punished for exercising his right to silence absent any
evidence of guilt.
In a partially published opinion, the Fifth District Court of Appeal accepted
defendant’s analysis and set aside the conviction. The panel made several key
points in the process.
First, the Court of Appeal concluded that defendant did not perform any
“affirmative act” proscribed by statute. The court observed that defendant was
arrested for being under the influence of a controlled substance during a traffic
stop, transported by patrol car to jail, and escorted inside by the arresting officer to
undergo the booking process. The court further noted that defendant failed to say
or do anything when told it was illegal to bring drugs inside. Defendant’s role in
this chain of events was described as one of pure “passivity and omission”; he
reportedly “did nothing” defined as criminal, and merely “submit[ted] to the
lawful authority of the police.” According to the appellate panel, someone who is
brought into jail in such an involuntary and submissive state does not “bring[ ]”
drugs inside under section 4573, even if he previously secreted them on his person
and knows he possesses them when he enters the facility. The court analogized
this case to Martin v. State (Ala.Ct.App. 1944) 17 So.2d 427 (Martin). There, an
intoxicated man was arrested in his home and dragged by police into a public
place where he used loud and profane language in violation of the law under
which he was later convicted. The Court of Appeal held that here, as in Martin,
no evidence of volitional conduct supported the act element of the crime.
Next, in a related vein, the Court of Appeal determined that defendant
lacked the necessary criminal intent. The court acknowledged that section 4573
only specifies that the act of bringing a controlled substance into jail must be
“knowingly” performed. The court also agreed with the People that defendant
knew he possessed a controlled substance when he entered jail under arrest for
another crime. Nonetheless, according to the court, such knowledge could not
support a conviction because he was not present at that location by his own design:
“In addition to knowing what he was carrying, defendant also had to have an
intent to bring drugs into the jail. He could not have had an intent to bring drugs
into jail where the going in was not pursuant to his intent at all.”
Finally, the Court of Appeal implied that the pressures brought to bear on
defendant as he entered jail implicated his Fifth Amendment privilege against self-
incrimination. Consistent with defendant’s view, the court determined that he did
not willfully violate the statute because he faced an unconstitutional choice. He
could either “confess” his guilt of unlawful drug possession before entering jail, or
stay silent and bring a controlled substance inside. The court seemed to agree with
defendant that, in light of his decision not to incriminate himself, and the ensuing
compulsion to commit the “greater” crime under section 4573, defendant was
being punished solely for exercising his constitutional right to silence.4
Shortly after the Court of Appeal issued its opinion in the present case, a
petition for review was filed in People v. Low (Mar. 14, 2007, A112831 [nonpub.
opn.], review granted June 13, 2007), a case decided by the First District Court of
Appeal. We granted review in Low to address issues closely related to those
raised and decided on appeal here, to wit, whether a section 4573 violation occurs
where the defendant possesses methamphetamine when brought into jail after his
arrest on other charges, and whether any constitutional bar to application of
section 4573 exists under such circumstances. At the same time we granted
review in Low and identified the issues there, we ordered review on our own
motion here. We designated the People, who are represented by the Attorney
General, as petitioners in this case.
ANALYSIS ON REVIEW
The Attorney General argues that the Court of Appeal misinterpreted
section 4573. We agree.
As Low now confirms, the Court of Appeal erred in concluding that
defendant did not commit the proscribed act. Relying on the plain statutory
language, Low finds it immaterial that the defendant was in custody and not
present by choice in jail. The critical fact is that an arrestee has the opportunity to
decide whether to purge himself of hidden drugs before entering jail, or whether to
In calling section 4573 the “greater” crime, and implying that possession of
a controlled substance under Health and Safety Code section 11377, subdivision
(a) is the “lesser” crime, the Court of Appeal may have been alluding to the
different sanctions triggered by these violations. Section 4573 is punishable by
two, three, or four years in state prison. Health and Safety Code section 11377,
subdivision (a), is punishable by confinement in county jail for not more than one
year, or by imprisonment for 16 months, two years, or three years. (See § 18.)
bring them inside and commit a new crime under section 4573. Low explains that
this view reflects the manner in which courts have assumed section 4573 applies
and have construed similar statutes regulating jail contraband. Low distinguishes
Martin, supra, 17 So.2d 427, where the defendant had no choice but to commit the
crime and was forced to do so by police. Finally, according to the history
discussed in Low, the Legislature has long viewed illegal drugs as a problem in
penal institutions, and blames inmates, at least in part, for importing them.
Section 4573 deters inmates from knowingly bringing controlled substances into
jail from the time they first arrive as arrestees and are booked into custody.
The Court of Appeal did not discuss the evidence of legislative intent on
which Low relied. It also adhered closely to Martin. The result was an unduly
narrow view of what constitutes a volitional criminal act under section 4573.
We have similar concerns with the Court of Appeal’s conclusion that
defendant lacked the requisite intent. Low demonstrates that the proscribed act is
“knowingly” performed under section 4573 where the person knew when he
entered jail that he possessed a controlled substance. Low bases this conclusion on
settled law interpreting “general intent” statutes like section 4573, particularly
those involving the unlawful possession of drugs. Low finds no evidence in
section 4573 or the surrounding scheme that the Legislature engrafted a “specific
intent” element onto the statute that required the pursuit of some purpose or effect
over and above the bare knowledge needed to commit the relevant act. Low also
does not suggest that an arrestee who submits to police authority is precluded from
forming the requisite knowledge with respect to any illegal drugs he possesses and
brings inside at the time. Yet the Court of Appeal seemed to focus on the latter
points in defining the necessary mental state and finding evidence of it lacking
here. In this respect, the court again relied on an incorrect view of section 4573.
We agree with the Attorney General’s further claim that the Court of
Appeal erred insofar as it invalidated defendant’s section 4573 conviction on
In setting forth the relevant principles, Low observes that the Fifth
Amendment privilege against self-incrimination precludes the State from
compelling a person to give testimonial evidence (i.e., communicate facts,
knowledge, or beliefs) that would incriminate him in a criminal case. As Low
observes, a violation of section 4573 is not premised on a testimonial
communication, but on the nontestimonial act of “knowingly bring[ing]”
prohibited drugs into a jail or prison. Low also rejects the argument that defendant
nonetheless was officially compelled, in violation of Fifth Amendment guarantees,
to enter jail with the drugs and incur additional penalties under section 4573. In
purpose and effect, the statute does not operate in a compelled testimonial manner.
It simply targets the willful commission of a new drug-related crime in jail.
For the reasons expressed in Low, we reject the instant Court of Appeal’s
suggestion that the Fifth Amendment privilege against self-incrimination was
violated in the present case. Indeed, if anything, the Fifth Amendment has less
relevance here than in Low’s case. There, the defendant received an advisement
under section 4573 and then answered a question about having drugs. Here, by
contrast, defendant remained silent when Officer Machado warned about bringing
drugs into the jail, and she asked no questions about his possession of illegal
drugs. However, the critical factor here, as in Low, is that the statutory scheme
that applied as defendant entered jail did not itself operate in a compelled
testimonial manner, and did not prevent him from avoiding commission of the
ensuing criminal act of bringing a controlled substance inside the facility. The
Fifth Amendment privilege against compelled testimonial self-incrimination has
no bearing on this case.
The reasons used by the Court of Appeal to set aside defendant’s conviction
under section 4573 conflict with the analysis employed under closely related
circumstances in Low. On this basis, the judgment of the Court of Appeal is
reversed insofar as it reversed defendant’s conviction under section 4573. In all
other respects, the judgment is affirmed.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Gastello
Review Granted XXX 149 Cal.App.4th 943
Date Filed: June 24, 2010
Judge: Louis F. Bissig
Attorneys for Appellant:Linnéa M. Johnson, under appointment by the Supreme Court, and Janice Wellborn, under appointment by
the Court of Appeal, for Defendant and Appellant.
Attorneys for Respondent:Bill Locker and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves and Dane R. Gillette, Chief
Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Janet
Neeley, Brian Alvarez and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):Linnéa M. Johnson
2407 J Street, Suite 301
Sacramento, CA 95816
Kathleen A. McKenna
Deputy Attorney General
2550 Mariposa Mall, Room 5090
Fresno, CA 93721
Review on the court's own motion after the Court of Appeal affirmed in part and reversed in part a judgment of conviction of criminal offenses. It presents the following issue: Did the defendant violate Penal Code section 4573 by knowingly having methamphetamine in his possession when he was brought into county jail after his arrest on other charges?
|Thu, 06/24/2010||49 Cal. 4th 395, 232 P.3d 650, 110 Cal. Rptr. 3d 658||S153170||Review - Criminal Appeal||submitted/opinion due|
|1||The People (Plaintiff and Respondent)|
Represented by Kathleen Anne McKenna
Office of the Attorney General
2550 Mariposa Mall, Room 5090
|2||Gastello, Tommy (Defendant and Appellant)|
Represented by Janice E. Wellborn
Attorney at Law
4104 Twenty-fourth Street, Suite 411
San Francisco, CA
|3||Gastello, Tommy (Defendant and Appellant)|
Represented by Linnea Marie Johnson
Central California Appellate Program
2407 "J" Street. Suite 301
|Opinion||Justice Marvin R. Baxter|
|Jun 5 2007||Time extended to grant or deny review|
The time for granting review on the court's own motion is hereby extended to and including July 13, 2007. (Cal. Rules of Court; rule 8.512(c)(1).)
|Jun 13 2007||Review granted on court's own motion (criminal case)|
Review is granted on the court's own motion. (See Cal. Rules of Court, rule 8.512(c)(1).) George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, & Corrigan , JJ.
|Jun 14 2007||Record requested|
|Jun 27 2007||Received Court of Appeal record|
|Aug 7 2007||Counsel appointment order filed|
Upon request of appellant for appointment of counsel, the Central California Appellate Program is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date of this order.
|Sep 4 2007||Request for extension of time filed|
counsel for aplt. requests extension of time to October 8, 2007, to file the answer brief on the merits.
|Sep 11 2007||Order filed|
Notwithstanding this court's order of August 7, 2007, the People, respondents in the Court of Appeal, are designated as petitioners in this court, and are directed to file an opening brief on the merits within (30) days from the date of this order. Appellant shall file an answer brief on the merits within (30) days after the People file their brief. Appellant's request for an extension of time to file an opening brief on the merits is denied as moot.
|Oct 3 2007||Request for extension of time filed|
Counsel for respondent requests extension of time to 11-10-07, to file the opening brief on the merits.
|Oct 11 2007||Extension of time granted|
On application of respondent and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including November 7, 2007. No further extensions of time are contemplated.
|Nov 7 2007||Opening brief on the merits filed|
counsel for resp. People
|Nov 14 2007||Received:|
from counsel for resp. Amended Declaration of Service of Resp's Opening Brief on themerits
|Nov 30 2007||Request for judicial notice filed (granted case)|
counsel for aplt.
|Nov 30 2007||Request for extension of time filed|
counsel for aplt. requests extension of time to January 6, 2008, to file the answer brief on the merits
|Dec 7 2007||Extension of time granted|
On application of appellant and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including January 6, 2008.
|Dec 10 2007||Counsel appointment order filed|
Upon request of appellant for appointment of counsel, the Central California Appellate Program is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before (30) days from the date of this order.
|Jan 8 2008||Received:|
counsel for aplt. Answer Brief on the Merits (oversized)
|Jan 10 2008||Application to file over-length brief filed|
counsel for aplt. (Gastello)
|Jan 15 2008||Answer brief on the merits filed|
counsel for aplt. w/permission
|Feb 4 2008||Reply brief filed (case fully briefed)|
counsel for resp. (People)
|Feb 25 2008||Received:|
counsel for aplt. (Gastello) letter re: Unavailability on the dates of May 23, '08 until June 20, '08.
|Sep 10 2008||Compensation awarded counsel|
|Dec 9 2009||Filed:|
by counsel for resp. (People) Notice of Unavailability the week of March 8-12, 2010.
|Mar 3 2010||Case ordered on calendar|
to be argued Wednesday, April 7, 2010, at 1:30 p.m., in Los Angeles
|Apr 1 2010||Filed:|
counsel for respondent, additional authorities not contained in papers and briefs filed in this case.
|Apr 7 2010||Cause argued and submitted|
|Apr 15 2010||Request for judicial notice granted|
Appellant's request for judicial notice, filed on November 30, 2007, is granted.
|Jun 23 2010||Notice of forthcoming opinion posted|
To be filed Thursday, June 24, 2010 at 10 a.m.
|Nov 7 2007||Opening brief on the merits filed|
|Jan 15 2008||Answer brief on the merits filed|
|Feb 4 2008||Reply brief filed (case fully briefed)|
respondents_opening_brief_on_the_merits.pdf (170605 bytes) - Respondent's Opening Brief on the Merits
appellants_answer_brief_on_the_merits.pdf (496905 bytes) - Appellant's Answer Brief on the Merits
respondents_reply_brief_on_the_merits.pdf (142835 bytes) - Respondent's Reply Brief on the Merits
|Jul 5, 2011|
Annotated by chris wilson
On the evening of November 24, 2005, a police officer stopped Tommy Gastello (Gastello) for riding a bike on a public street without required biking lights. As a consequence of Gastello’s agitated demeanor, odd statements, and pupils that were too constricted for the lighting conditions, the officer performed a drug evaluation on Gastello and determined that he was under the influence of a controlled substance. The officer placed Gastello under arrest and performed a search for weapons on his person, but none were found (Gastello did have a knife in his hand when he was stopped; this weapon was confiscated by the officer when Gastello was arrested). The officer then placed Gastello in her patrol car and transported him to the county jail.
Prior to entering the parking lot of the jail, the officer informed Gastello that it was a felony to bring drugs or weapons into the jail. Gastello acknowledged that he understood the warning, but said nothing further at the time.
Upon entering the jail, the officer assisted in the pre-booking process for Gastello, which required the removal of a sweatshirt that he was not allowed to wear into the secured area of the jail. When she picked up the sweatshirt, the officer noticed a small bindle, wrapped in plastic. The bindle was later determined to contain a usable amount of methamphetamine. A blood sample taken while Gastello was at the jail also revealed the presence of methamphetamine and morphine in his system.
Gastello was charged with unlawfully bringing a controlled substance into a jail under Penal Code section 4573; unlawful possession of methamphetamine under Health and Safety Code section 11377, subdivision (a); and being under the influence of a controlled substance under Health and Safety Code section 11550, subdivision (a).
Gastello was convicted at jury trial on all three counts. He subsequently filed notice of appeal on the count of unlawfully bringing a controlled substance into a jail under section 4573. The Fifth District Court of Appeal reversed the conviction on that count. It found that, because he was brought to the jail involuntarily, Gastello did not willingly bring the drugs into the prison, and as such made no affirmative act prohibited by the statute. It also found that his involuntary presence in the jail meant that he had no intent to bring drugs into the jail, and therefore did not meet the requisite mental state for the violation. Finally, the court suggested that Gastello’s Fifth Amendment right against self-incrimination was implicated by the charge, in that he was faced with the choice of confessing to his possession of the illegal drug or remaining silent and bringing the illegal drug into the jail.
The California Supreme Court brought the case up for review on its own motion, as it had granted review at the same time of a case that addressed the same statute and similar issues (People v. Low, No. S151961).
1) Did Gastello violate Penal Code section 4573 by knowingly bringing a controlled substance into a jail while under arrest on other charges?
2) Was Gastello’s Fifth Amendment right against self-incrimination violated by the charge?
1) Yes, Gastello violated section 4573. The plain language of the statute proscribes the act of bringing the controlled substance into the jail; whether he was in the jail of his own accord is irrelevant. Similarly, the proscribed act was knowingly performed under the statute because he knew he was bringing the controlled substance into the jail, thus satisfying the mens rea requirement of the law.
2) No, Gastello’s Fifth Amendment right was not violated. The statute neither compelled him to admit to a violation nor prevented him from avoiding one, so the Fifth Amendment has no relevance here.
The Court relied on People v. Low, which was decided on the same day as Gastello, in making its ruling here. People v. Low, 49 Cal. 4th 372 (2010).
As a preliminary matter, the Low Court held that “the act prohibited by section 4573 can occur when someone is brought into jail in custody for another crime.” 49 Cal. 4th at 384. The Gastello Court incorporated this holding into its opinion by finding that, for the purposes of the violation, “it is immaterial that the defendant was in custody and not present by choice in jail.”
Concerning the proscribed act in section 4573, the Court determined that “[t]he critical fact is that the arrestee has the opportunity to decide whether to purge himself of hidden drugs before entering jail, or whether to bring them inside and commit a new crime” under the statute. This construction is in line with similar statutes banning contraband in jails, as well as the policy concern of deterring the introduction of drugs into correctional facilities that the Legislature considered in enacting the statute.
Concerning the requisite mental state for the violation, the Court (again referencing Low) held that section 4573 is a general intent statute, such that the arrestee’s simple knowledge of the fact that he was carrying a controlled substance when entering the jail meets the mental state threshold under the law. Section 4573 is not a specific intent statute, which would require “the pursuit of some purpose or effect over and above the bare knowledge needed to commit the relevant act.”
In addressing the alleged Fifth Amendment violation, the Court referenced its analysis in Low. There, the Court noted that the implication of the Fifth Amendment turned on whether the defendant was compelled to give testimonial evidence that discloses incriminating information; the amendment protects the defendant from providing this evidence. Low, 49 Cal. 4th at 390. It held, however, that “nothing in section 4573 requires a person in defendant’s situation to ‘speak his guilt’ of any crime. Rather, liability under the statute is premised on the nontestimonial act of ‘knowingly bringing’ prohibited drugs into a correctional facility.” Id. at 390-91.
In applying its Low analysis to Gastello, the Court held that “the critical factor here, as in Low, is that the statutory scheme that applied as defendant entered jail did not itself operate in a compelled testimonial manner, and did not prevent him from avoiding commission of the ensuing criminal act of bringing a controlled substance inside the facility.” Thus, the Fifth Amendment was deemed to have no bearing on the case.
--Key Related Cases--
People v. Tony Richard Low, 49 Cal. 4th 372 (2010)
Penal Code section 4573, drugs in correctional facilities, involuntary presence, voluntary act, drug possession, arrestees, Fifth Amendment, self-incrimination, non-testimonial act,