People v. Tommy Gastello

49 Cal. 4th 395, 232 P.3d 650, 110 Cal. Rptr. 3d 658

Filed 6/24/10 (this opn. should follow lead companion case, S151961, filed same date)


Plaintiff and Respondent,
Ct.App. 5 F050325
Kings County
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.
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.
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.
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
constitutional grounds.
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

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted
XXX 149 Cal.App.4th 943
Rehearing Granted


Opinion No.

Date Filed: June 24, 2010


County: Kings
Judge: Louis F. Bissig


Attorneys for Appellant:

Linn?a 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):

Linn?a M. Johnson
2407 J Street, Suite 301
Sacramento, CA 95816
(916) 441-3792

Kathleen A. McKenna
Deputy Attorney General
2550 Mariposa Mall, Room 5090
Fresno, CA 93721
(559) 477-1670