People v. Espudo CA6

Filed 9/30/16 P. v. Espudo CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H042639 (Santa Cruz County Plaintiff and Respondent, Super. Ct. No. F28335)

v.

ANTHONY DAVID ESPUDO,

Defendant and Appellant.

Defendant Anthony David Espudo was convicted by a jury of a count of simple possession of controlled substances in jail (Pen. Code, § 4573.6).1 The trial court suspended imposition of sentence and placed him on probation for three years subject to various terms and conditions. On appeal, defendant argues the court erred when it failed to instruct the jury with the defense of transitory possession and the lesser included offense of simple possession. We find no error and affirm the judgment. BACKGROUND 1. The Information On May 4, 2015, defendant was charged by information with a count of bringing controlled substances into a jail in violation of section 4573. Defendant pleaded not guilty to the offense. On June 26, 2015, the prosecution amended the information, reducing the count of bringing drugs into a jail to a lesser charge of simple possession of controlled substances in jail (§ 4573.6). 1 Unspecified statutory references are to the Penal Code.

2. The Evidence at Trial On March 7, 2015, Santa Cruz Police Officer Erich Hoppe was assigned to the Neighborhood Enforcement Team. At around 10:30 p.m., Hoppe was investigating suspected drug activity at a residence located at 356-A Ocean Street. When he arrived at the house, Hoppe observed indications of drug use, including used hypodermic needles, used drug packaging, small metal cookers used to heat heroin for ingestion, and at least one glass methamphetamine pipe. There were approximately five to six individuals at the house, including defendant. Hoppe arrested defendant, walked defendant to his patrol car, conducted a pat search, and emptied out defendant’s pockets. Hoppe then placed defendant in the rear of his patrol car and transported him to jail. Hoppe’s patrol car had a divider between the front passenger compartment and the rear, and the back seat was a hard plastic molded seat with no openings. There was no contraband in the back seat before and after defendant was in the car. After arriving at the jail, Officer Hoppe completed defendant’s booking paperwork, searched defendant again, and asked him if he was holding anything he should not have such as contraband. When searching individuals being taken inside the jail, Hoppe explained that he typically checks the individual’s pockets, waistline, pant legs, socks, and shoes. Hoppe cannot do a more thorough strip search at that time. Hoppe warned defendant that he could face an additional criminal charge if he brought contraband inside the jail. Defendant did not indicate he was in possession of contraband. Afterwards, Hoppe accompanied defendant to the intake room. At that point, a member of the jail staff took custody of defendant. Hoppe explained that once a member of the jail staff takes custody of a defendant, the staff completes a medical screening and searches the defendant again. Leonel Martinez was employed as a correctional officer for the Santa Cruz County Sheriff’s Office at the time of defendant’s arrest. Officer Martinez explained that once an arresting officer brings someone into the jail facility, correctional officers conduct a pat 2