People v. McDaniels CA3

Filed 10/24/14 P. v. McDaniels CA3 Original opinion filed 7/2/14 vacated on 10/9/14 and opinion re-filed 10/24/14 NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C072707

Plaintiff and Respondent, (Super. Ct. No. 11F05313)

v.

ROBERT MCDANIELS,

Defendant and Appellant.

A jury found defendant Robert McDaniels guilty of possessing marijuana in a penal institution. (Pen. Code, § 4573.6, subd. (a).)1 In a bifurcated proceeding, the jury found true an allegation defendant “was convicted of the crime of first degree murder in violation of . . . section 187 on April 11, 2001.” In the amended information, this

1 Further statutory references are to the Penal Code unless otherwise indicated.

1

conviction was alleged as the basis for a prior prison term enhancement. (§ 667.5, subd. (b).) Defendant was sentenced to prison for three years consecutive to the term he was then serving. He moved to strike the prior prison term allegation because he had not “completed” the “period of prison incarceration imposed for” the murder and, in fact, was in custody for it at the time of the present offense. (§ 667.5, subd. (g).) The trial court declined to strike the allegation but also declined to impose any additional penalty for it. On appeal, defendant contends (1) the trial court erred when it limited his right to cross-examine and impeach Officer Hampton, a percipient witness; and (2) the prior prison term allegation must be stricken; the People concede this latter point. We modify the judgment. FACTS2 On May 19, 2011, defendant was an inmate at Folsom State Prison serving a sentence for first degree murder. At 1:30 a.m., correctional officers Carrillo and Guzman approached the cell containing defendant and another inmate. Correctional Officer Hampton provided light from her flashlight as the other officers entered the cell. As the duo entered, defendant rose up from his lying position on the upper bunk bed, reached to a shelf at the rear of the cell, grabbed an object, and stuck it in his mouth. Officer Guzman ordered him to spit out whatever he had put in his mouth. Defendant opened his mouth and Officer Guzman noted that it was empty. Defendant was handcuffed, escorted to an administrative segregation unit, and placed on contraband surveillance watch -- an around the clock observation that continues until the ingested object passes from the body.