People v. Smith CA5

Filed 8/3/16 P. v. Smith CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F071775 Plaintiff and Respondent, (Super. Ct. No. SF017478A) v.

JERRY SMITH, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. John R. Brownlee, Judge. Sandra Gillies, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Gregory B. Wagner, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P.J., Franson, J. and Smith, J.

Appellant Jerry Smith appeals his conviction for possessing marijuana in prison (Pen. Code, § 4573.8). Appellant contends insufficient evidence was presented to conclude he knew the substance he possessed was a narcotic. Separately, appellant contends his due process rights were violated because video evidence of his alleged crime was not preserved by the prosecution. For the reasons set forth below, we affirm. FACTUAL AND PROCEDURAL BACKGROUND On June 9, 2013, appellant was confined as an inmate at Wasco State Prison. That day he received a visitor, whom he met in visiting room A. The visitation was monitored in a separate room through video surveillance by California Department of Corrections and Rehabilitation (CDCR) Correctional Officers Margarita Pedraza and Tobias Towle. Via the video feed, Officers Pedraza and Towle observed the visitor remove a small, black, cylindrical object from her waist band and place it in appellant’s rear pocket. Appellant and the visitor then moved to seats near a table. Appellant withdrew the object from his pocket, placed it inside of his pants, and appeared to be moving in a manner consistent with an attempt to hide the object in his anus. Officers Pedraza and Towle then intervened. They took appellant and his visitor to separate locations and conducted an over-the-clothing search of each. Nothing was found. Appellant was then passed to Correctional Officer Antonio Medina for visual supervision. Officer Medina inspected a noncontact visiting booth, which is a single person room, accessed by a door, that contains a metal stool and is used by inmates to communicate with visitors through a glass partition. Finding nothing in the booth, Officer Medina placed appellant inside and monitored him through a window. Officer Medina could not see appellant’s hands during this time, but did see appellant leaning back while sitting on the stool. When it came time to remove appellant from the noncontact visiting booth, Officer Medina opened the door and instructed appellant to exit. As appellant exited the