Supreme Court of California Justia
Citation 49 Cal. 4th 372, 232 P.3d 635, 110 Cal. Rptr. 3d 640
People v. Tony Richard Low

Filed 6/24/10 (this opn. should precede companion case, S153170, filed same date)


Plaintiff and Respondent,
Ct.App. 1/5 A112831
Solano County
Defendant and Appellant.
Super. Ct. No. FCR-225077

Defendant Tony Richard Low, a convicted felon with a long criminal
record, was arrested while driving a stolen vehicle. He received and waived his
Miranda rights,1 denied any wrongdoing, and underwent a patdown search before
being taken into custody. No contraband or weapons were found.
Outside the entrance to the jail, the arresting officer told defendant that it
was illegal to bring a controlled substance into the facility. Defendant denied
having any drugs in his possession. He was brought inside and searched as part of
the booking process. Despite his contrary assurance, defendant was found in the
possession of a small packet of methamphetamine. It was tucked into his sock.

Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).

A jury convicted defendant of unlawfully driving or taking a vehicle — the
crime that triggered his arrest — and of violating Penal Code section 4573.2 As
pertinent here, the latter statute makes it a felony for ―any person‖ to ―knowingly
bring[ ] . . . into[ ] any state prison . . . or into any county . . . jail . . . any
controlled substance‖ without legal authority or official permission to do so.
Defendant argues here, as he did in both the trial and appellate courts, that
section 4573 does not apply to someone who is arrested and brought to jail, and
who is found to possess a controlled substance during the booking process. First,
defendant contends no statutory violation occurred because his presence inside the
jail was involuntary and unrelated to any intent to smuggle drugs. The
Legislature, he posits, has no discernable interest in penalizing someone who
happens to have a controlled substance when detained for another crime. Second,
defendant claims the statutory scheme placed him in an inherently coercive bind
— either admit possessing a controlled substance outside of jail (see Health & Saf.
Code, § 11377, subd. (a)) (Health and Safety Code section 11377(a)), or bring the
drugs inside and risk slightly stiffer sanctions under section 4573. Prosecution for
the latter act, he asserts, violated his privilege against compelled self-incrimination
under the Fifth Amendment to the United States Constitution.
We agree with the lower courts that, under the circumstances of this case,
defendant is not statutorily or constitutionally immune from prosecution under
section 4573. He voluntarily secreted a controlled substance on his person in
violation of the law, was then arrested for unrelated criminal conduct, and
thereafter committed a third crime — knowingly entering jail in the possession of
All further statutory references are to the Penal Code except as otherwise
drugs. While such entry was compulsory, the act of bringing drugs inside was not.
The arresting officer gave advance warning about the prohibitions in section 4573,
and defendant violated its terms despite ample opportunity to avoid doing so.
In reaching this conclusion, we rely on the plain meaning of the statute, and
on the manner in which similar statutes regulating other in-custody crimes have
been construed. Indeed, by essentially limiting section 4573 and related
provisions to noninmate smugglers, defendant‘s approach would risk the
introduction of drugs and other contraband into penal settings, and undermine the
legislative aim to maintain order and safety therein.
Nor does enforcement of section 4573 under the present circumstances
violate the Fifth Amendment ban on the criminal use of compelled incriminating
testimony. Section 4573 does not coerce anyone to admit guilt of any crime or
punish them for failing to do so. It simply prevents all persons, including those
arrested while unlawfully possessing drugs and committing other crimes, from
engaging in a nontestimonial criminal act — walking into a custodial setting with
knowledge they are bringing controlled substances with them. To the extent
defendant‘s false denial of guilt at the jail entrance incriminated him at trial, he is
procedurally barred from raising the issue. In any event, any federal constitutional
error in admission of the statement was not prejudicial.
We therefore decline to reverse the judgment of conviction.
A. The Evidence
On the afternoon of June 29, 2005, Detective Ronald Jones of the
Sacramento County Sheriff‘s Department was driving his official vehicle on
Interstate 80 when defendant rapidly approached him from behind in a truck. As
he passed the officer‘s car, defendant waved an object — a water bottle bearing a
law enforcement emblem. Jones learned by his on-board computer and police
radio that the truck had been reported stolen. He requested backup, and followed
as defendant left the freeway and stopped at a dead-end street. The truck had
traveled at speeds of 80 to 100 miles per hour while weaving through traffic.
After activating his red emergency lights, Detective Jones drew his
handgun and approached the truck. He identified himself as a police officer, and
told defendant to stop the engine, toss the keys outside, and put his hands in the
air. Over the next few minutes, defendant raised and lowered his hands several
times, and did not otherwise do what Jones asked.
Meanwhile, Officer Christopher Wahl of the California Highway Patrol
arrived and ordered defendant out of the truck. After another brief delay,
defendant complied.
Officer Wahl placed defendant under arrest for the unlawful driving or
taking of a motor vehicle. The officer patted the outside of defendant‘s clothing,
looking for weapons, and found nothing. Defendant was advised of his
constitutional rights under Miranda. After waiving those rights, he explained that
the owner of the truck was a friend who had loaned it to him for work. Wahl then
drove defendant by patrol car to the Solano County jail.
Outside the jail, near the entrance, Officer Wahl and defendant had another
brief exchange. Wahl testified at trial that he told defendant ―it was illegal to
bring any controlled substances inside the jail facility.‖ Wahl asked if defendant
had any such item in his underwear or socks, or elsewhere on his person, and said
he would be searched inside the building. According to Wahl, defendant stated he
had ―nothing inside his socks or undergarments.‖
Deputy Brian Glenn was on duty when Officer Wahl escorted defendant
into the jail to be booked into custody. This process entailed a brief medical
screening, fingerprinting, and an inventory search, in which defendant was told to
remove his socks and shoes. When defendant fumbled with the left sock, Glenn
peered inside the ankle-band area, and saw a small plastic baggie containing a
clear, crystal-like substance. Glenn gave the baggie to Officer Wahl, who logged
it into evidence. The packet and its contents were admitted at trial.
A criminalist tested the crystal substance that defendant brought into jail
and found that it contained methamphetamine. The drug weighed 20 milligrams
and was present in a usable amount.
Christopher Terrell owned the truck that defendant — his friend,
houseguest, and employee — drove when arrested. Terrell‘s truck, which he
cherished and rarely used for work, was a limited-edition 2003 Ford F150 with
Harley-Davidson markings. Terrell described the circumstances under which
defendant took the truck on June 21 without his knowledge or consent, and refused
numerous requests by phone to return it. Terrell contacted the police.
Defendant did not testify at trial. He called one witness, his girlfriend, in
defense of the Vehicle Code charge. An admitted methamphetamine user, she
claimed that Terrell gave defendant the keys to the Ford, along with a bag of
methamphetamine, and discussed materials needed for work. In rebuttal
testimony, Terrell disputed this account.
B. The Proceedings
The jury convicted defendant, as charged, of two felony counts: (1)
unlawfully driving or taking a vehicle in violation of Vehicle Code section 10851,
subdivision (a), and (2) bringing a controlled substance into jail in violation of
section 4573. In a bifurcated proceeding, the trial court found true three
enhancements for prior prison terms alleged under section 667.5, subdivision (b).
Two of them involved robbery convictions sustained in 1982 and 1988, and one
concerned a 1993 burglary conviction. Defendant received a prison sentence of
seven years eight months.3
Near the close of trial, defendant argued, for the first time, that section 4573
did not apply to him. The first such exchange happened during discussions on
jury instructions. Absent a standard instruction under section 4573, the court
indicated that it would give modified versions of existing instructions on similar
offenses. (See §§ 4573.6 [knowingly possessing controlled substance in prison or
jail], 4574, subd. (a) (section 4574(a)) [knowingly bringing firearm, deadly
weapon, or explosive into prison or jail]; CALJIC Nos. 7.34.01 & 7.34.03.)4

The sentence consisted of a principal term of four years under section 4573,
a subordinate term of eight months under Vehicle Code section 10851, and one
additional year for each of the three prior prison terms under section 667.5. The
four-year principal term represented the high term under section 4573, which
authorizes two, three, or four years in prison. In aggravating the sentence, the trial
court noted that defendant had 10 prior felony convictions, that five of them would
qualify as ―strikes‖ for purposes of imposing a life term, and that the prosecutor
showed restraint in alleging them only as prior prison terms. The Court of Appeal
rejected challenges to the sentence. None are raised or addressed in this court.
Thus, the trial court instructed, in pertinent part, as follows: ―Every person
who knowingly brings into any county jail or within the grounds belonging to the
institution any controlled substance, such as methamphetamine[,] is guilty of a
violation of . . . section 4573, a crime. . . . [¶] . . . [E]ach of the following elements
must be proved: [¶] 1. A person exercised control over . . . methamphetamine, a
controlled substance; [¶] 2. That person knew of its presence; [¶] 3. That person
knew of its nature as a controlled substance; [¶] 4. The substance was in an
amount sufficient to be used as a controlled substance; [¶] 5. At the time of
possession, the person entered the county jail or within the grounds belonging to
the institution.‖ The requisite knowledge was defined as involving ―the existence
of the facts in question. Knowledge of the unlawfulness of any act or omission is
not required. A requirement of knowledge does not mean that the act must be
done with any specific intent.‖ Along these lines, the court also instructed that
section 4573 required a ―union or joint operation of act or conduct and general
criminal intent.‖ The latter concept was said to occur when the person
(footnote continued on next page)

Neither party objected to this approach. However, defendant asked the court to
also instruct on the ―simple‖ possession of methamphetamine under Health and
Safety Code section 11377(a), which he described as a lesser included offense of
section 4573. Defendant opined that the jury could find him not guilty of the
section 4573 charge, and guilty only of the uncharged possession offense, because
he did not ―intentionally‖ bring drugs into jail, and entered ―involuntarily,‖ under
arrest for another crime. The trial court rejected this view of the law and facts, and
declined to instruct on the ―lesser‖ charge.5
Defendant expanded his challenge to section 4573 in a motion for new trial
filed after the jury convicted him of that offense. As before, he claimed section
4573 exempts persons who possess controlled substances when arrested and jailed
for other crimes, and that the statute targets noninmate smugglers. Defendant
insisted section 4573 serves no purpose where, as here, a booking search could

(footnote continued from previous page)
―intentionally does that which the law declares to be a crime, . . . even though he
may not know that his act or conduct is unlawful.‖
Health and Safety Code section 11377(a) prohibits the unauthorized
possession of a controlled substance. (See People v. Martin (2001) 25 Cal.4th
1180, 1184-1185 [requiring dominion and control over controlled substance in
usable amount, plus knowledge of drug‘s presence and narcotic nature].) The
crime is punishable by one year in county jail or by confinement in state prison,
with the latter term ranging from 16 months to two or three years. (See § 18.)
When declining defendant‘s request for an instruction on Health and Safety Code
section 11377(a), the trial court noted that if defendant possessed drugs, he
brought them into jail, and that nothing showed he possessed them only outside
the jail. The Court of Appeal rejected defendant‘s claim of error for failure to
instruct under Health and Safety Code section 11377(a). (See People v.
(1998) 19 Cal.4th 142, 154 [instruction on lesser included offense
required only when evidence raises doubt about all elements of charged offense].)
Defendant does not challenge the resolution of his instructional claims below.
They are not raised or considered here.

detect any hidden drugs, and other statutes regulating unauthorized drug
possession seem to apply. The new trial motion also contained a claim that
defendant had not presented earlier concerning violation of his privilege against
compelled self-incrimination under the Fifth Amendment. Under this view,
section 4573 compels arrestees to admit before entering jail that they unlawfully
possess drugs under Health and Safety Code section 11377(a), and punishes them
more harshly if they do not incriminate themselves and bring the drugs inside.
The new trial motion was denied. The trial court disagreed with
defendant‘s reading of the statute. The court noted that section 4573 is not limited
on its face to persons other than those who were brought to jail and booked into
custody, and that the Legislature could have included such language if it chose to
do so. In addition, the trial court rejected defendant‘s constitutional claim. The
court reasoned as follows: Defendant was being punished for knowingly bringing
drugs into the jail, not for exercising his constitutional rights. Section 4573 has
nothing to do with coerced incriminating admissions. Even if both the arresting
officer and defendant had remained silent outside the jail, defendant would have
brought the drugs into the facility and violated section 4573.
In an unpublished opinion, the First District Court of Appeal, Division
Five, rejected arguments similar to those raised in the new trial motion, and
affirmed defendant‘s conviction under section 4573. The appellate court found no
basis for conditioning a statutory violation on whether the person entered jail
―voluntarily,‖ or whether drugs were ―intentionally‖ smuggled inside. Absent any
contrary authority, the Court of Appeal further concluded that the statutory scheme
did not force an arrestee who possessed drugs when brought into jail to make any
choice that was testimonial and incriminating in the Fifth Amendment sense.
Defendant sought review. As pertinent here, the petition renewed both his
statutory and constitutional challenges to section 4573. In the process, he relied
heavily on People v. Gastello (2007) 149 Cal.App.4th 943, review granted
June 13, 2007, S153170, a decision that had been filed a few days earlier by the
Fifth District Court of Appeal. The Court of Appeal‘s decision in Gastello
conflicts in key respects with the analysis adopted by the lower courts here.
We granted review to address whether (1) section 4573 is violated where
the defendant possesses methamphetamine when brought into jail following his
arrest on other charges, and (2) there is a constitutional bar to application of
section 4573 under such circumstances. At the same time, we ordered review on
our own motion in Gastello. We decide both matters by separate opinion today.
A. Statutory Elements
The relevant statutory language makes it a felony for ―any person‖ to
―knowingly bring[ ] . . . into any county . . . jail . . . any controlled substance‖ that
he is not authorized to possess. (§ 4573.)6 Defendant argues that this provision

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
(footnote continued on next page)

does not apply to someone, like him, who happens to possess a controlled
substance when arrested for another crime, and who was brought into jail
involuntarily in order to be booked pursuant to that arrest. He insists the
proscribed affirmative act of ―bring[ing]‖ a controlled substance into jail cannot be
committed under such circumstances. In a related vein, defendant contends that a
person who enters jail under the compulsion of an arrest does not ―knowingly
bring[ ]‖ drugs inside, and therefore does not have the requisite intent, simply
because a controlled substance is found on his person during the booking search.
(§ 4573, italics added.) According to defendant, the act is not ―knowingly‖
performed unless the person deliberately went to jail with the intent to smuggle
drugs for use, sale, or some other illicit purpose. However, based on the plain
language of section 4573, and a commonsense meaning of its terms, we disagree.
1. “Any Person.” In making the foregoing arguments, defendant largely
overlooks a significant feature of the statute. In particular, section 4573 applies on
its face to ―any person‖ who commits the proscribed act under the specified
circumstances. Such language is quite plain and broad. It suggests that anyone
and everyone who knowingly brings a controlled substance into jail under the
specified circumstances violates the statute. No qualifications or conditions
purport to limit liability to noninmates of the jail. Nor does any language exclude
persons under arrest or otherwise held in official custody.

(footnote continued from previous page)
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).)


A similar conclusion has been reached under at least one closely related
statute. Section 4573 appears in part 3, title 5 of the Penal Code, concerning
―Offenses Relating to Prisons and Prisoners.‖ (See § 4500 et seq.) Much like
section 4573, several adjacent provisions place restrictions on possessing and
importing drugs and other contraband in custody. (See §§ 4573.5 [knowingly
bringing alcoholic beverages, drugs other than controlled substances, or drug
paraphernalia into prison or jail], 4573.6 [knowingly possessing controlled
substances in prison or jail], 4574(a) [knowingly bringing firearms, deadly
weapons, or explosives into prison or jail].)7 The manner in which these statutes

Section 4573.5 states in part: ―Any person who knowingly brings into any
state prison . . . or into any county . . . jail . . . or any other institution or place
where prisoners or inmates are being held . . . any alcoholic beverage, any drugs,
other than controlled substances, . . . or any device . . . or paraphernalia intended
to be used for unlawfully injecting or consuming any drug other than controlled
substances, without having authority so to do . . . is guilty of a felony. [¶] The[se]
prohibitions and sanctions . . . shall be clearly and prominently posted outside of,
and at the entrance to, the grounds of all detention facilities . . . .‖
Section 4573.6 states in part: ―Any person who knowingly has in his or her
possession in any state prison . . . or in any county . . . jail . . . or any place or
institution[ ] where prisoners or inmates are being held . . . any controlled
substances, the possession of which is prohibited by Division 10 (commencing
with Section 11000) of the Health and Safety Code [or] any device . . . or
paraphernalia intended to be used for unlawfully injecting or consuming controlled
substances, without being authorized to [do] so . . . is guilty of a felony punishable
by imprisonment in the state prison for two, three, or four years. [¶] The[se]
prohibitions and sanctions . . . shall be clearly and prominently posted outside of,
and at the entrance to, the grounds of all detention facilities . . . .‖
Section 4574(a) states in part: ―Except when otherwise authorized [to do
so,] . . . any person[ ] who knowingly brings or sends into . . . any state prison . . .
or any other place where prisoners . . . are located . . . or any jail or any county
road camp . . . any firearms, deadly weapons, or explosives, and any person who,
while lawfully confined in a jail or county road camp possesses therein any
firearm, deadly weapon, explosive, tear gas or tear gas weapon, is guilty of a
felony[,] punishable . . . in the state prison for two, three, or four years.‖

have been construed is relevant here. (See People v. Harris (2006) 145
Cal.App.4th 1456, 1461 (Harris) [stating that §§ 4573 & 4573.5 should be
― ‗construed together‘ ‖]; People v. Gutierrez (1997) 52 Cal.App.4th 380, 386
(Gutierrez) [same, as to §§ 4573, 4573.5, 4573.6 & 4574]; People v. Buese (1963)
220 Cal.App.2d 802, 807 (Buese) [same, as to §§ 4573, 4573.5 & 4573.6].)
Courts have long assumed that section 4573.6, which bans ―[a]ny person‖
from knowingly possessing a controlled substance in prison or jail, applies to
―visitors and correctional officers as well as to inmates.‖ (People v. Wilson (1978)
83 Cal.App.3d 982, 990, italics added; see People v. Clark (1966) 241 Cal.App.2d
775, 778 [citing ―any-person‖ language in § 4573.6 to conclude that ―no
individuals,‖ including jail inmates, ―are excepted from its provisions‖ or
― ‗extracted‘ from its operation‖]; People v. Trout (1955) 137 Cal.App.2d 794, 796
[using same reasoning to reject claim that only noninmates can be convicted of
possessing heroin in jail under § 4573.6].) It is reasonable to reach a similar
conclusion under section 4573.
2. “Brings.” As noted, defendant argues that an arrestee does not
―bring[ ]‖ a controlled substance into jail under section 4573 simply because the
drug is in his possession when he is brought into the facility in custody for another
crime. However, this narrow interpretation of the term defies common usage.
As defendant suggests, the verb ―to bring‖ certainly means ―to take or carry
along‖ an object as the actor moves in a self-directed fashion from one place to
another. (Webster‘s 3d New Internat. Dict. (2002) p. 278; see 2 Oxford English
Dict. (2d ed. 1989) p. 554 [―carrying or bearing in one‘s hand‖].) But it also
contemplates scenarios in which a person or object is ―cause[d] to come along‖
because someone or something is ―leading, conducting, or propelling‖ such
movement. (2 Oxford English Dict., supra, p. 554; accord, Webster‘s 3d New
Internat. Dict., supra, p. 278; see People v. Waid (1954) 127 Cal.App.2d 614, 617-
618 (Waid) [using latter definition to conclude that accused ―brings‖ drugs into
prison under § 4573.5 by mailing them there].) Either way, when defendant
walked into the jail carrying methamphetamine in the band of his sock, he was
―bring[ing]‖ the substance into the facility under section 4573, even though such
movement was caused by his earlier arrest and directed by the arresting officer.
California courts have long assumed that arrestees and other persons in
custody can violate section 4573, and ―bring[ ]‖ a controlled substance into jail,
when the entry is officially compelled and drugs are secreted on their person.
(See, e.g., People v. Fenton (1993) 20 Cal.App.4th 965, 967-969 & fn. 2 [implying
§ 4573 would have applied to inmate returning to jail after work furlough if he had
not had a doctor‘s prescription for the controlled substance found tucked between
his toes, and affirming his conviction under § 4573.5 for bringing other drugs into
jail that were not controlled substances]; People v. Houston (1958) 164
Cal.App.2d 396, 398 [affirming conviction for heroin possession under
predecessor to Health & Saf. Code, § 11350, and noting that defendant would have
violated § 4573 if he had not disclosed heroin secreted in his rectum before
entering jail]; People v. Woods (1956) 139 Cal.App.2d 515, 521, 524-525
[affirming conviction under predecessor to Health & Saf. Code, § 11350 where
opiates were found in defendant‘s rectum after his arrest, and suggesting he also
violated § 4573 by bringing them into jail].)
To the extent we now conclude that the act prohibited by section 4573 can
occur when someone is brought into jail in custody for another crime, this
interpretation is consistent with cases deciding what it means to ―bring[ ]‖
contraband into a penal setting in violation of similar statutory prohibitions. (E.g.,
People v. Ross (2008) 162 Cal.App.4th 1184, 1187-1189 (Ross) [holding that
defendant who carried knife in her undergarments, and who denied having it when
arrested and booked for assault, violated § 4574(a) despite her claim that she did
not voluntarily enter jail or commit affirmative act of bringing weapon inside];
People v. James (1969) 1 Cal.App.3d 645, 650 (James) [similar conclusion under
same statute as to defendant who kept pistol hidden in his waistband during
booking search, and who later gave it to another jail inmate].) The critical factors
are the lack of any compulsion to bring contraband inside, and the rejection of a
clear opportunity to avoid doing so by voluntarily relinquishing the forbidden
object or substance before entering the premises. (Ross, supra, 162 Cal.App.4th at
p. 1191 [defendant ―had no choice whether to go to jail, but she was afforded the
choice not to violate section 4574‖]; James, supra, 1 Cal.App.3d at p. 650
[defendant ―knowingly possessed a firearm while in jail, after he had ample time
to surrender it,‖ such that his ―choice about going to jail is irrelevant‖].) We agree
that such volitional conduct falls within the parameters of section 4573.
For the most part, defendant ignores the foregoing principles and
authorities. He focuses instead on out-of-state case law, mainly, and in particular,
a 1944 Alabama decision, Martin v. State (Ala.Ct.App. 1944) 17 So.2d 427
(Martin). This reliance is misplaced.
According to the opinion in Martin, which is quite terse, police officers
arrived at the defendant‘s home, found that he was intoxicated, and placed him
under arrest. The arresting officers then took the defendant from his home and
brought him onto a public highway. There, while still intoxicated, the defendant
spoke loudly and used profanity. He was ultimately charged and convicted under
a state law prohibiting anyone from ― ‗appear[ing]‘ ‖ in a public place and
― ‗manifest[ing]‘ ‖ a drunken condition through either boisterous or indecent
conduct or loud and profane language. (Martin, supra, 17 So.2d at p. 427.)
The Alabama Court of Appeals reversed. Relying on a commonsense
meaning of the statute, the court determined that ―a voluntary appearance [while
drunk in a public place] is presupposed.‖ Guilt could not be established, the court
said, where the intoxicated person ―was involuntarily and forcibly carried to that
place by the arresting officer.‖ (Martin, supra, 17 So.2d at p. 427.) In other
words, it appears every part of the alleged criminal transaction was deemed
involuntary on appeal. By taking the defendant from the private confines of his
own home, knowing he was intoxicated and already under arrest, and placing him
in a public place where the terms of the statute under which he was later charged
could be violated, police officers effectively compelled, and arguably
manufactured, commission of the crime.
Such is not the case here. After being stopped by Detective Jones,
defendant was arrested by Officer Wahl for driving a stolen vehicle. No evidence
shows that either officer knew or suspected that defendant had any illegal drugs in
his possession. In fact, the patdown search that Wahl conducted incident to the
arrest at the scene revealed no contraband. Wahl then took defendant to the local
county jail, as any arresting officer presumably would be obligated to do. Before
entering the facility, the officer gave defendant ample opportunity to avoid
violating section 4573. In particular, Wahl advised defendant that it was illegal to
bring drugs into the jail, asked whether he had any drugs in his clothes or on his
person, and warned that he would be searched inside. Despite this warning,
methamphetamine was found in defendant‘s sock during the booking process.
Thus, unlike in Martin, supra, 17 So.2d 427, nothing supports defendant‘s
suggestion that he was forced to bring drugs into jail, that commission of the act
was engineered by the police, or that he had no choice but to violate section 4573.
Defendant entered jail in the possession of methamphetamine that he had
previously secreted on his person. Hence, he committed the act that section 4573
3. “Knowingly.” Defendant contends that a person cannot ―knowingly
bring[ ]‖ a controlled substance into a custodial setting under section 4573 unless
he intends to smuggle drugs into jail for some illicit purpose, such as use or sale.
(Ibid., italics added.) This element is missing, he argues, absent any evidence he
intended to get arrested and go to jail with such a drug-smuggling goal in mind.
Section 4573 contemplates a culpable mental state, but not the one
defendant describes. As defined in the Penal Code, the term ―knowingly‖ involves
only a knowledge that the facts exist which bring the act or omission within the
[relevant code] provisions.‖ (§ 7, par. 5, italics added.) It ―does not require any
knowledge of the unlawfulness of such act or omission.‖ (Ibid.) This definition
— which is consistent with the notion of general criminal intent — requires the
accused to knowingly perform the proscribed act, but does not involve any intent
to commit a further act or achieve a particular effect. (1 Witkin & Epstein, Cal.
Criminal Law (3d ed. 2000) Elements, § 8, pp. 209-210.)
As we have seen, the act that must be ―knowingly‖ performed to violate the
―bring[ing]‖ provisions of section 4573 involves entering a prison or jail in the
possession of a controlled substance. In general, the knowing possession of a
controlled substance simply requires an awareness of both its physical presence
and narcotic character. (See People v. Martin, supra, 25 Cal.4th 1180, 1184
[describing basic elements of unauthorized possession of controlled substance
under Health & Saf. Code, § 11377(a)]; People v. Palaschak (1995) 9 Cal.4th
1236, 1242 [same]; People v. Williams (1971) 5 Cal.3d 211, 215 [finding
insufficient evidence of requisite knowledge to support conviction for
unauthorized possession of controlled substance under predecessor to Health &
Saf. Code, § 11377(a)]; People v. Winston (1956) 46 Cal.2d 151, 158-161
(Winston) [requiring knowledge of drug‘s narcotic character as one element of
unlawful possession of controlled substance under predecessor to Health & Saf.
Code, § 11350]; see also 2 Witkin & Epstein, supra, Crimes Against Public Peace
and Welfare, §§ 90-92, pp. 602-606.)8
Similar principles have been used to describe the mental state required for
certain in-custody offenses that are closely related to section 4573. (See People v.
Carrasco (1981) 118 Cal.App.3d 936, 947 (Carrasco) [holding trial court erred in
not instructing under § 4573.6 that unauthorized possession of controlled
substance in prison or jail requires ―dual knowledge‖ of drug‘s presence and
nature]; People v. Rodriquez (1975) 50 Cal.App.3d 389, 396 [rejecting claim
under § 4574(a) that unauthorized possession of deadly weapon in jail or county
road camp requires ―specific intent‖ to use item for violence].) Not surprisingly,
the trial court did not depart from this approach when instructing defendant‘s jury
on knowledge and intent under section 4573.
Nothing in section 4573 or other relevant authority supports defendant‘s
view that the crime requires an intent or scheme to smuggle drugs into jail over
and above the knowledge component we have described. Presumably, the
Legislature would have signaled whether a special intent to fulfill such an

In describing the knowledge component, Winston, supra, 46 Cal.2d 151,
stated that ―specific intent to violate the law is immaterial to a conviction for the
unlawful possession of a narcotic.‖ (Id. at p. 158.) The court explained that by
requiring knowledge of the narcotic character of the substance possessed, the
crime merely involved ― ‗knowledge that the facts exist which bring the act . . .
within the provisions of [the] code.‘ ‖ (Ibid.) The word ―knowingly‖ was added
in 1959 along with other language, including the references to ―send[ing],‖ and to
―assist[ing]‖ in bringing or sending, controlled substances into prison or jail.
(Stats. 1959, ch. 662, § 1, p. 2637.) The 1959 amendment occurred shortly after
Winston was decided. It was evidently intended, in part, to clarify the mental state
required to commit the various proscribed acts in a manner consistent with that
decision. (See generally People v. Harrison (1989) 48 Cal.3d 321, 329
[Legislature is deemed aware of relevant law, and presumably adopted existing
judicial construction of terms it used in framing amendment to statute].)

unlawful purpose or to cause some adverse effect bore on commission of the
offense. No such language appears in section 4573. (Cf. §§ 4535 [carrying or
sending into prison or jail anything useful to aid escape ―with intent‖ to facilitate
the crime], 4570.5 [presenting false identification or fraudulent documentation
―for the purpose of‖ securing admission to prison or jail].) We decline to rewrite
the statute. (See generally People v. Ansell (2001) 25 Cal.4th 868, 881.)
Here, defendant was stopped and arrested near the highway while driving a
stolen vehicle. At some point before he was brought to jail, he came into the
possession of methamphetamine packed in a small plastic baggie. Defendant
carried the packet inside the band of his sock, outside the plain view and easy
reach of others. He then ignored an express warning by the arresting officer that
controlled substances could not lawfully be brought into jail. This evidence
suggests that defendant, a career criminal, knew before he entered the facility
about the packet concealed on his person and about the character of the substance
inside. (See Carrasco, supra, 118 Cal.App.3d 936, 947 [any person ―found in
possession of secreted drugs or narcotics within a penal facility will be hard put to
disprove either type of knowledge‖ required for unlawful drug possession under
§ 4573.6 or analogous Health & Saf. Code provisions].)
Substantial evidence thus supports the conclusion that defendant acted with
the mental state contemplated by section 4573. No additional intent or purpose of
the kind urged here was required.
B. Historical Support
Though the considerations discussed above amply persuade us that section
4573 was properly applied to defendant, we find additional support for our view in
the historical record. As noted earlier, section 4573 was enacted in 1941 when the
Legislature overhauled part 3 of the Penal Code, and added title 5, regulating
various crimes in custody.9 However, prior to that time, similar prohibitions
appeared elsewhere in the code, in statutes that are predecessors of section 4573.
The first such provision, and the oldest one, is former section 180. (Added by
Stats. 1899, ch. 4, § 1, p. 4 [making it a felony for ―[a]ny person,‖ not authorized
by law, to ―bring[ ]‖ narcotics, liquor, or weapons into state ―prisons‖ or
―reformatories‖], renumbered as former § 180a by Stats. 1901, ch. 92, § 1, p. 107,
and repealed by Stats. 1905, ch. 490, § 5, p. 652.) Former section 180 was
eventually renumbered and replaced by former section 171a. The main
substantive change made at that time was the addition of new language prohibiting
contraband from being brought into a ―jail‖ setting. (Ibid., added by Stats. 1905,
ch. 490, § 2, p. 651, amended by Stats. 1911, ch. 186, § 1, p. 364, and repealed by
Stats. 1972, ch. 497, § 1, p. 868.)
Critical here are materials in the legislative record accompanying the
adoption of former section 171a, the immediate predecessor to section 4573.
These materials indicate that the Legislature targeted inmates who, upon returning
to penal institutions after performing labor outside, hid small amounts of opium
and other narcotics in their clothing. Because such contraband often went
undetected, and because it threatened institutional control, any person who
committed the act was made subject to felony sanctions. (See State Bd. of Prison
Directors, Biennial Rep. (1902-1904) Capt. of the Guard‘s Rep., p. 80, printed at

This scheme defines and punishes the following categories of in-custody
crimes: assaults and batteries (§§ 4500-4501.5), possessing and manufacturing
weapons and holding hostages (§§ 4502-4503), escapes and rescues (§§ 4530-
4550), possessing and importing illegal drugs and other contraband (§§ 4570-
4570.1, 4573-4575), entries into unauthorized areas (§§ 4570.5-4571), and
damaging prison or jail property (§ 4600).

3 Appen. To Js. of Sen. & Assem. (1905 Reg. Sess.); id., Warden of Folsom State
Prison, Biennial Rep., p. 93, printed at 3 Appen. to Js. of Sen. & Assem. (1905
Reg. Sess.).) Similar concerns apply to one who, like defendant, brings secreted
drugs into the facility following his arrest for another crime.
C. Legislative Policies
Application of section 4573 to defendant is supported not only by its
language and history, but also is consistent with the legislative policies it was
apparently intended to serve. We reject the suggestion defendant has made
throughout these proceedings that section 4573 serves no meaningful purpose if it
is construed to apply to arrestees who are not present in jail by choice and who did
not enter the facility in order to smuggle drugs inside.
Section 4573 and similar laws flow from the assumption that drugs,
weapons, and other contraband promote disruptive and violent acts in custody,
including gang involvement in the drug trade. Hence, these provisions are viewed
as ― ‗prophylactic‘ ‖ measures that attack the ― ‗very presence‘ ‖ of such items in
the penal system. (Harris, supra, 145 Cal.App.4th 1456, 1461, quoting Gutierrez,
supra, 52 Cal.App.4th 380, 386; accord, Ross, supra, 162 Cal.App.4th 1184, 1189;
People v. Lee (2006) 136 Cal.App.4th 522, 536; Estes v. Rowland (1993) 14
Cal.App.4th 508, 518, 522-523; Waid, supra, 127 Cal.App.2d 614, 617.)
The Legislature could reasonably conclude that section 4573 aids this effort
by encouraging all persons, including arrestees, to divest themselves of controlled
substances in their possession in lieu of violating the statute. Consistent with this
goal, section 4573 requires that its ―prohibitions and sanctions‖ be ―prominently
posted‖ for the benefit of everyone entering prison or jail property. (See
Gutierrez, supra, 52 Cal.App.4th 380, 389 [―posting requirement‖ provides
―additional deterrent‖ to statutory violation, and is not an element of the crime or a
defense to its commission].) As to persons entering jail in custody, the Legislature
could reasonably choose not to rely solely on the booking process to uncover
controlled substances arrestees have not disclosed, or on the possession statutes to
penalize those who succeed in bringing them inside. (See James, supra, 1
Cal.App.3d 645, 647-648 [firearm was not discovered on defendant‘s person
during booking search and was later handled by other inmates].) Section 4573
deters arrestees from knowingly and voluntarily bringing controlled substances
into jail ―with impunity.‖ (Ross, supra, 162 Cal.App.4th 1184, 1189.)
A contrary conclusion could undermine operation of the statutory scheme
as a whole. As discussed above, section 4573 and statutes with a similar structure
and purpose have long been construed in light of each other. (E.g., Harris, supra,
145 Cal.App.4th 1456, 1461; Gutierrez, supra, 52 Cal.App.4th 380, 386; Buese,
supra, 220 Cal.App.2d 802, 807.) Hence, if we confined section 4573 to
noninmates and intentional smugglers as defendant suggests, courts might strain to
reach a different interpretation under statutes closely related to section 4573, or
adopt an equally narrow view of their reach. We decline to promote such
analytical confusion or thwart the interest in correctional security in this way.
Defendant asserts here, as below, that application of section 4573 to him
constituted a violation of his privilege against compelled self-incrimination under
the Fifth Amendment, as follows: Having been arrested and brought to jail with
methamphetamine in his sock, defendant could not avoid prosecution under
section 4573 unless he admitted, before entering the facility, that he possessed a
controlled substance in violation of Health and Safety Code section 11377(a). By
refusing to confess his guilt, he had no choice but to enter jail with the drugs,
violate section 4573, and incur a longer prison term. Defendant claims his
conviction should be reversed in light of the compulsion and penalties he endured.
We disagree.
The Fifth Amendment to the United States Constitution states that ―[n]o
person . . . shall be compelled in any criminal case to be a witness against
himself.‖ The high court has made clear that the meaning of this language cannot
be divorced from the historical practices at which it was aimed, namely, the brutal
inquisitorial methods of ― ‗putting the accused upon his oath and compelling him
to answer questions designed to uncover uncharged offenses, without evidence
from another source.‘ ‖ (United States v. Hubbell (2000) 530 U.S. 27, 34, fn. 8,
quoting Doe v. United States (1988) 487 U.S. 201, 212 (Doe); see Andresen v.
Maryland (1976) 427 U.S. 463, 470-471.) At its core, the privilege protects
against the ―cruel trilemma of self-accusation, perjury or contempt.‖ (Murphy v.
Waterfront Comm'n (1964) 378 U.S. 52, 55.) Accordingly, the amendment
prohibits the direct or derivative criminal use against an individual of
―testimonial‖ communications of an incriminatory nature, obtained from the
person under official compulsion. (Hiibel v. Sixth Judicial Dist. Court of Nev.,
Humboldt Cty. (2004) 542 U.S. 177, 189-190; Chavez v. Martinez (2003) 538 U.S.
760, 766-767 (Chavez); Hubbell, supra, 530 U.S. at pp. 34-38; Pennsylvania v.
Muniz (1990) 496 U.S. 582, 593-596 (Muniz).)
The testimonial limitation on the protection afforded by the privilege
against self-incrimination is critical to the issue presented here. The purpose of
the privilege is to ―spare the accused from having to reveal, directly or indirectly,
his knowledge of facts relating him to [a criminal] offense or from having to share
his thoughts and beliefs with the Government.‖ (Doe, supra, 487 U.S. 201, 213.)
Hence, testimonial evidence requires a ―communication‖ that itself ―relate[s] a
factual assertion‖ by the accused, or ―disclose[s] information‖ in the form of his
personal knowledge or subjective beliefs. (Id. at p. 210.)
Applying this standard, the high court has found, for instance, that not all
responses to official questioning are testimonial. (E.g., Muniz, supra, 496 U.S.
582; see id. at pp. 592 [finding no testimonial communication in drunk driving
suspect‘s slurred speech and poor muscle control while answering questions
during police interrogation], 599 [concluding that same suspect‘s answer that he
did not know the date of his sixth birthday was testimonial because it conveyed
truthful admission that he was mentally confused]; cf. Schmerber v. California
(1966) 384 U.S. 757, 763-765 [― ‗real or physical evidence‘ ‖ in the form of blood
samples extracted from suspect‘s body over his objection and subjected to
chemical testing disclosed nothing about his thought processes and involved no
compelled testimonial communication].)
Based on the foregoing principles, we disagree with defendant that, when
he was arrested and brought into jail with methamphetamine, his commission of
the ―greater‖ crime of bringing drugs into jail under section 4573 was the
compelled testimonial product of his decision not to admit that he was committing
the ―lesser‖ crime of possessing drugs outside of jail. Nothing in section 4573
requires a person in defendant‘s situation to ― ‗speak his guilt‘ ‖ of any crime.
(Doe, supra, 487 U.S. 201, 211.) Rather, liability under the statute is premised on
the nontestimonial act of ―knowingly bring[ing]‖ prohibited drugs into a
correctional facility.
A hypothetical scenario inspired by the facts of this case illustrates the flaw
in defendant‘s contrary view, as follows: The defendant is arrested on the street
for a crime, and patted down for weapons. A small packet containing a controlled
substance that he had previously placed on his person is not found by the officer at
that time. The defendant is taken into custody and brought to jail. However, in
this hypothetical version of events, the defendant stays completely silent and does
nothing about the drugs he knows he still possesses. He is then escorted into jail
to be booked for the crime that triggered his arrest. A short time later, the drugs
are found in his possession during a routine search. The defendant sustains a
conviction under section 4573, because all of the elements of a statutory violation
were found.
The foregoing scenario shows that the statutory scheme does not implicate
Fifth Amendment protections against compelling an arrestee to be a ―witness‖
against himself. Our hypothetical defendant did not make any statements or
answer any questions that would have deterred him from violating section 4573 by
disclosing his unlawful possession of drugs before entering jail. His prosecution
and conviction for knowingly bringing drugs into jail had nothing to do with the
State extracting a confession or an incriminating admission that could be used to
convict him of another drug offense.
It follows that defendant in the present case, like his counterpart in the
hypothetical case, was prosecuted and convicted under section 4573, not because
he gave or refused ―testimony‖ under official compulsion, but because he engaged
in the nontestimonial criminal act of knowingly entering the jail in the possession
of a controlled substance. As we have seen, this conduct is reasonably viewed by
the Legislature as a threat to institutional safety and control. Individuals like
defendant who violate section 4573 have placed themselves in this unfortunate
position by secreting illegal drugs on their persons before being arrested and jailed
for committing other crimes. A detainee can properly be expected to avoid
knowingly bringing drugs into jail, and can be punished commensurate with his
culpability if he does so anyway. The Fifth Amendment privilege against self-
incrimination does not remove every difficult choice ―of the guilty suspect‘s own
making.‖ (Brogan v. United States (1998) 522 U.S. 398, 404.)
Finally, we are mindful that defendant did make a statement at the entrance
to the jail in the present case. Prosecution evidence showed that, after giving an
advisement under section 4573, the arresting officer asked defendant whether he
had a controlled substance, and he basically said ―no.‖ This answer proved to be
false in light of the methamphetamine jailers found in his sock a short time later.
Arguably, this custodial exchange, which required defendant to communicate
knowledge about illegal substances in his possession, presented him with the
― ‗trilemma‘ of truth, falsity, or silence‖ that the Fifth Amendment privilege was
designed to prevent. (Muniz, supra, 496 U.S. 582, 597.) As indicated above,
where such a violation occurs, the remedy is to ensure that the statements, and any
evidence derived from them, ―cannot be used‖ against the defendant criminally.
(Chavez, supra, 538 U.S. 760, 768 (plur. opn. of Thomas, J.); see United States v.
Patane (2004) 542 U.S. 630, 639 (plur. opn. of Thomas, J.) [―blanket suppression
rule‖ protects ―actually compelled testimony‖ and its ―fruits‖].)
However, we need not decide whether defendant‘s false denial of guilt was
the compelled incriminating product of an unconstitutional choice, or whether this
evidence should have been excluded from the prosecution‘s case-in-chief. Two
reasons appear.
First, defendant never moved to exclude this evidence below, and has
therefore forfeited any right to challenge its admission here. No motion was made
before or during trial to suppress the statement under the Fifth Amendment or on
any other ground. Thus, the relevant issues were not litigated below, and the trial
court lost the opportunity to rule, during the trial proceedings themselves, whether
defendant‘s statement should be suppressed under the Fifth Amendment. As in
prior similar cases, we will not decide that issue for the first time in this court.
(People v. Ray (1996) 13 Cal.4th 313, 339, and cases cited; accord, People v.
Smith (2007) 40 Cal.4th 483, 506-507; People v. Combs (2004) 34 Cal.4th 821,
845-846; People v. Maury (2003) 30 Cal.4th 342, 387-388.)
Second, defendant was not prejudiced by any error in failing to suppress
this evidence in violation of his Fifth Amendment right not to incriminate himself.
Under Chapman v. California (1967) 386 U.S. 18, a reviewing court need not
reverse the judgment on this ground if it determines ―beyond a reasonable doubt
that the error complained of did not contribute to the verdict obtained.‖ (Id. at
p. 24.) In other words, the alleged error must be ―unimportant in relation to
everything else the jury considered on the issue in question, as revealed in the
record.‖ (Yates v. Evatt (1991) 500 U.S. 391, 403.) That is the case here.
The record shows that defendant possessed methamphetamine in jail. The
substance was found during a search of his clothes, leading the booking officer to
give it to the arresting officer. Both witnesses described the substance for the jury.
In addition, a criminalist confirmed that it was methamphetamine and was present
in a useable amount. This testimony, coupled with the physical evidence itself,
provides overwhelming proof that defendant knowingly brought a controlled
substance into jail in violation of section 4573.
Under the circumstances, defendant‘s brief statement beforehand that he
did not possess a controlled substance, though demonstrably false and arguably
indicative of a consciousness of guilt, assumed only slight importance in the
context of all the other evidence at trial. Defendant‘s statement did not contribute
to the verdict under section 4573.10 We therefore find no constitutional basis for
reversing the conviction.11

Of course, any motion to suppress the methamphetamine found in jail as
the tainted physical fruit of a Fifth Amendment violation would have lacked merit
and been subject to denial at trial. The discovery of the drugs in defendant‘s
possession did not flow from, or have any connection to, his statement outside the
jail that he had ―nothing inside‖ his clothes. Unlike the statement, defendant‘s act
of retaining the drugs as he entered jail was not testimonial. His exculpatory
statement also did not lead police to search for drugs in his sock once he brought
them inside. The search would have occurred in due course, and the drugs would
have been found regardless of any contrary assurance defendant made. (See Nix v.
(1984) 467 U.S. 431, 444 [federal constitutional violation does not bar
admission of physical evidence that would inevitably have been discovered by
lawful means]; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 62 [same].)
In his opening brief on the merits, defendant argues that application of
section 4573 impairs his due process rights under the federal and state
Constitutions because of the State‘s ―outrageous‖ conduct in causing him to
violate section 4573, and because he committed no voluntary or intentional
criminal act. The State‘s misconduct allegedly occurred when the arresting officer
brought defendant into jail with methamphetamine hidden on his person, and when
the prosecutor charged him under section 4573. In making this claim, defendant
cites federal and state decisions debating whether, and to what extent, ―outrageous
government conduct‖ serves as a constitutional bar to prosecution or a defense to
conviction. (E.g., United States v. Russell (1973) 411 U.S. 423, 431-432; People
v. Smith
(2003) 31 Cal.4th 1207, 1223-1227 (maj. opn. of Brown, J.), 1227-1229
(conc. opn. of Werdegar. J.).) We decline to reverse the conviction on this ground.
First, to the extent this argument concerns principles and authorities different from
those already discussed herein, it was not presented either at trial or on appeal, and
is raised for the first time on review. Defendant has thus forfeited this
constitutional theory by failing to timely raise or properly present it in this case.
Second, for reasons we have already explained, defendant‘s conduct in knowingly
bringing methamphetamine into jail violated section 4573. Hence, his due process
challenge to the actions of the State rests on a faulty premise, i.e., that he
committed no criminal act for which he could be properly prosecuted and
convicted. No viable basis for relief on this ground therefore appears.

The judgment of the Court of Appeal is affirmed.



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Low

Unpublished Opinion

NP opn. filed 3/14/07 – 1st Dist., Div. 5
Original Appeal
Original Proceeding
Review Granted

Rehearing Granted


Opinion No.

Date Filed: June 24, 2010


County: Solano
Judge: Michael R. Smith


Attorneys for Appellant:

Matthew A. Siroka, under appointment by the Supreme Court, for Defendant and Appellant.


Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves and Dane R. Gillette, Chief
Assistant Attorneys General, Gerald A. Engler, Assistant Attorney General, Catherine A. Rivlin, Laurence
K. Sullivan, René A. Chacón and Arthur P. Beever, Deputy Attorneys General, for Plaintiff and

Counsel who argued in Supreme Court (not intended for publication with opinion):

Matthew A. Siroka
600 Townsend Street, Suite 329E
San Francisco, CA 94103
9415) 522-1105

Arthur P. Beever
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5865

Petition for review after the Court of Appeal affirmed 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?

Opinion Information
Date:Citation:Docket Number:Category:Status:
Thu, 06/24/201049 Cal. 4th 372, 232 P.3d 635, 110 Cal. Rptr. 3d 640S151961Review - Criminal Appealsubmitted/opinion due

1The People (Plaintiff and Respondent)
Represented by Arthur Paul Beever
Office of the Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA

2Low, Tony Richard (Defendant and Appellant)
651 I Street (SCJ)
Sacramento, CA 94814

Represented by Matthew Alexander Siroka
Attorney at Law
600 Townsend Street, Suite 329-E
San Francisco, CA

Opinion Authors
OpinionJustice Marvin R. Baxter

Apr 19 2007Record requested
Apr 19 2007Petition for review filed
  Tony Richard Low, appellant Matthew A. Siroka, CAP/appointed
Apr 26 20072nd record request
  via email
Apr 30 2007Received Court of Appeal record
  file jacket/briefs/sealed envelope/accordian file
Jun 13 2007Petition for review granted; issues limited (criminal case)
  The petition for review is granted. The issues to be briefed and argued are limited to the following: Did defendant violate Penal Code section 4573 by having methamphetamine in his possession when he was brought into county jail after his arrest on other charges? Can section 4573 constitutionally apply in such circumstances? George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, & Corrigan, JJ.
Jun 22 2007Counsel appointment order filed
  Upon request of appellant for appointment of counsel, Matthew Siroka 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.
Jul 20 2007Request for extension of time filed
  Appellant requesting a 30-day extension to and including August 22, 2007, to file appellant's opening brief on the merits. By Matthew A. Siroka, counsel
Jul 31 2007Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file appellant's opening brief on the merits is hereby extended to and including August 22, 2007.
Aug 22 2007Opening brief on the merits filed
  counsel for aplt.
Sep 17 2007Request for extension of time filed
  counsel for respondent requests extension of time to 10-21-2007 to file the answer brief on the merits.
Sep 20 2007Extension of time granted
  On application of respondent 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 October 21, 2007.
Oct 22 2007Answer brief on the merits filed
  counsel for resp. (People)
Nov 13 2007Reply brief filed (case fully briefed)
  counsel for aplt. T. Low
Jan 16 2008Compensation awarded counsel
  Atty Siroka
Aug 28 2009Received:
  counsel for aplt. Notice of Unavailability
Jan 13 2010Received:
  from counsel for aplt. Notice of Unavailability for oral argument, dates February 22, 2010 returning March 6, 2010.
Mar 3 2010Case ordered on calendar
  to be argued Wednesday, April 7, 2010, at 1:30 p.m., in Los Angeles
Apr 7 2010Cause argued and submitted
May 7 2010Change of contact information filed for:
  petnr. Tony Low
Jun 23 2010Notice of forthcoming opinion posted
  To be filed Thursday, June 24, 2010 at 10 a.m.

Aug 22 2007Opening brief on the merits filed
Oct 22 2007Answer brief on the merits filed
Nov 13 2007Reply brief filed (case fully briefed)
Brief Downloads
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respondents_answer_brief_on_the_merits.pdf (1322256 bytes) - Respondent's Answer Brief on the Merits
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appellants_reply_brief_on_the_merits.pdf (549417 bytes) - Appellant's Reply Brief on the Merits
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
Jan 24, 2011
Annotated by cborthwick


As a police officer was driving along a highway, he noticed the defendant engaging in suspicious behavior. After entering the license plate number of the vehicle that the defendant was driving, the police learned that the vehicle had been registered in the system as stolen. The officer then arrested the defendant.
After arresting him, the officer drove the defendant to the county jail. Before entering the facility, the officer notified the defendant that it was illegal to bring controlled substances into a jail. The officer then asked the defendant whether he had any controlled substances on his person. The defendant responded by denying possession of a controlled substance.
The officer took the defendant into the county jail for booking. As part of the booking routine, an official from the jail requested that the defendant remove his socks and shoes. The official noticed that the defendant “fumbled” while removing his left sock, so the official examined the defendant’s sock. In his sock, the defendant had stored a clear bag containing a “clear, crystal-like substance.”
At trial, an expert witness identified this substance as methamphetamine. The defendant’s friend, Christopher Terrell, testified that the defendant had stolen his truck without his permission. The defendant’s girlfriend testified that the methamphetamine was intended to feed her addiction. During rebuttal, Terrell countered that the girlfriend’s account was inaccurate.
The jury convicted the defendant on two counts. First, the jury convicted the defendant of “unlawfully driving or taking a vehicle in violation of Vehicle Code section 10851.” Second, the jury convicted the defendant of “bringing a controlled substance into jail in violation of section 4573.” At issue here is the second charge.

Procedural Posture:
The defendant first contested the second charge of bringing a controlled substance into a jail near the end of the trial. The defendant raised the argument that he should not be charged under CAL. PENAL CODE § 4573 because he did not intentionally bring drugs into the jail. Thus, he argued that the appropriate charge and jury instructions for his possession of methamphetamine was for “simple possession” under § 4574, which is a lesser charge. The trial court judge dismissed the defendant’s argument for the jury to be instructed under § 4574.
After losing the first argument, the defendant filed a motion for a new trial. The defendant presented two arguments in this motion. First, the defendant contended that he should not have been charged and convicted under § 4573 because he did not intentionally attempt to smuggle drugs into the jail because his presence at the jail was involuntary. Second, the defendant argued that charging him under § 4573 was a violation of his Fifth Amendment rights because he was presented with the choice of either admitting to possession of drugs outside of the jail in violation of CAL. HEALTH & SAFETY CODE § 11377(a) or with the choice of bringing the drugs into jail in violation of CAL. PENAL CODE § 4573. The trial court denied the defendant’s motion.
The defendant appealed the trial court’s decision, but the appellate court rejected the defendant’s arguments on grounds similar to the trial court. The defendant appealed to the Supreme Court of California, which granted the defendant’s request to review the two arguments presented in the defendant’s motion for a new trial.

(1) Does the scope of CAL. PENAL CODE § 4573 extend to persons who bring controlled substances into jail upon booking for charges unrelated to drug possession?
(2) Is CAL. PENAL CODE § 4573 unconstitutional under the Fifth Amendment because the defendant is forced to make testimonial statements, which give rise to criminal liability?

(1) CAL. PENAL CODE § 4573 applies to persons who bring controlled substances into jail when booked for charges unrelated to drug possession.
(2) The Fifth Amendment is not a constitutional bar to charging defendants under CAL. PENAL CODE § 4573 because the act of possessing drugs is non-testimonial.

The Supreme Court of California upheld the defendant’s conviction at the trial court and appellate courts under CAL. PENAL CODE § 4573.

Issue #1:
The Supreme Court of California determined whether CAL. PENAL CODE § 4573 applied to persons who brought a controlled substance into jail by analyzing (1) the elements of § 4573, (2) the legislative history of § 4573, and (3) the legislative policies surrounding the creation of § 4573.
First, the Supreme Court of California reviewed the case law analyzing the plain language of § 4573, and case law about other statutes that prohibit persons from bringing other types of contraband into a jail. These similar statutes prohibit bringing firearms, weapons, and alcohol into a jail. CAL. PENAL CODE § 4573 prohibits “any person” from “knowingly bring[ing] . . . into any county . . . jail . . . any controlled substance” which the person is not authorized to have. The Supreme Court of California broke down the plain language into three key parts: “any person,” “brings,” and “knowingly.”
In defining “any person,” the Supreme Court of California researched case law for both § 4573 and the other, similar statutes listed above. The court concluded that “any person” should be interpreted broadly. Thus, “any person” includes recent arrestees brought to the jail on a crime distinct from the crime of possessing a controlled substance.
The court decided that the word “brings” does not turn on whether the person entered the jail voluntarily. Even though the defendant need not enter the jail voluntarily to trigger CAL. PENAL CODE § 4573, the defendant here nonetheless voluntarily brought contraband into the jail because he did not take advantage of the opportunity that the officer provided him to surrender the drugs before entering the jail. The Supreme Court of California distinguished the case of Martin v. State (holding that police cannot charge a defendant with public intoxication after transporting the defendant from his home onto a public highway) by noting that unlike the defendant in Martin, the defendant here was not (1) forced to bring drugs to jail, (2) the police did not manufacture the situation that caused the defendant to commit the crime of bringing drugs into the jail, (3) the defendant had a choice of whether or not to commit a crime.
The Supreme Court of California determined that the word “knowingly” in § 4573 matches the conventional understanding of “knowingly” in the CAL. PENAL CODE. The court rejected the defendant’s argument for interpreting “knowingly” as intentionally smuggling controlled substances into a correctional facility. Thus, “knowledge” in § 4573 means knowledge of carrying the controlled substance and knowledge that the substance being carried is narcotic. Here, the defendant knew that he was carrying a controlled substance into the jail, and thus the defendant had the requisite mens rea under § 4573.
Second, the Supreme Court of California reasoned that the legislative history showed that the legislature was particularly concerned with inmates bringing drugs into jail. Statutes preventing people from carrying controlled substances into jail partially derived from public concern over inmates who worked outside of penal institutions during the day because they could reenter the institution at night with illegal substances. Thus, the Supreme Court of California used the legislative history as supporting the finding that the legislature intended to criminalize the carrying of drugs into a facility when a person was being booked on charges unrelated to drug possession.
Third, the court found that legislative policies illustrate that § 4573 and similar statutes were designed for the purpose of preventing violence arising from trade of contraband in these correctional facilities. The court reasoned that limiting § 4573 and similar statutes to people who intentionally smuggle contraband may threaten “correctional security.” Consequently, the defendant’s act of bringing a controlled substance into the prison was sufficient to trigger § 4573.

Issue #2:
The Supreme Court of California upheld CAL. PENAL CODE § 4573 as constitutional under the Fifth Amendment. The defendant argued that applying § 4573 to situations in which a person carrying controlled substances was involuntarily brought to jail is unconstitutional because he was presented with the choice of committing one crime or another crime. The defendant noted that either he must have admitted to possession of a controlled substance before entering the prison or he would be found carrying a controlled substance into the jail after entering the facility.
The Supreme Court of California applied Supreme Court precedent holding that a violation of the Fifth Amendment requires that the defendant be coerced into making a testimonial, factual statement that gives rise to criminal liability. Consequently, the Supreme Court of California reasoned that the defendant’s act of carrying a controlled substance is non-testimonial because he was not forced to utter a factual statement that would give rise to criminal liability. Consequently, § 4573 is facially constitutional, and thus the court decided to uphold the defendant’s conviction under § 4573.
However, the Supreme Court of California acknowledged that it may have been a Fifth Amendment violation to include the statement made by the defendant to the officer that he was not carrying any drugs on his person before entering the jail. Nevertheless, the court did not find that the use of the statement at trial merited overturning the defendant’s conviction for two reasons. First, the defendant forfeited his opportunity to suppress the statement by not raising the issue in the trial court. Second, the statement did not factor into the defendant’s conviction under § 4573 with the physical evidence of the drugs in addition to the witnesses at trial.

Tags: Cal. Penal Code § 4573, knowingly, bringing, jail, prison, camp, controlled substance, contraband, Fifth Amendment, testimonial, non-testimonial

Table of Key Authorities:

CAL. VEH. CODE § 10851:

CAL. PENAL CODE § 4573 & CAL. PENAL CODE § 4574(a):


Jan 24, 2011
Annotated by cborthwick

Annotation By: Claire Borthwick