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F 18.30 n1 Possession Of Drugs In Jail Or Prison: Dual Knowledge And Usable Quantity Requirements (PC 4573.6 & PC 4573.8).
The dual knowledge and usable quantity requirements (see CJ 12.00) are required by PC 4573.6 and PC 4573.8. (See People v. Carrasco (81) 118 CA3d 936, 944-49 [173 CR 688].)
F 18.30 n2 Drugs In Jail Or Prison: Use Alone Does Not Prove Possession (PC 4573.6 & PC 4573.8).
Evidence that the defendant used or ingested a controlled substance is not sufficient, standing alone, to prove past possession. (People v. Palaschak (95) 9 C4th 1236, 1240-41 [40 CR2d 722]; see also People v. Spann (86) 187 CA3d 400, 403 [232 CR 31]; but cf. In re Dikes (2004) 121 CA4th 825 [drug tests showing use of controlled substance was “some evidence” of possession but was insufficient to impose prisoner discipline]; see FORECITE F 12.00d.)
F 18.30 n3 Possession Of Drugs In Jail Or Prison: Chain Of Custody (PC 4573.6 & PC 4573.8).
Counsel should be alert to potential chain of custody issues in these cases. Because the arrests are usually made by jail or prison personnel, adequate chain of custody procedures may not be followed.
F 18.30 n4 Drugs In Jail Or Prison: Possession During Work Furlough Not Sufficient (PC 4573.6 & PC 4573.8).
An inmate who possesses drugs at the place of his work furlough does not violate PC 4573.6. (People v. Carrasco (81) 118 CA3d 936, 947 [173 CR 688]; see also 63 Ops. of Calif. Atty. Gen. 282 (1980).)
F 18.30 n5 Possession Of Syringe In Jail Or Prison: Required Intent.
PC 4573.6 prohibits possession in jail or prison of “any device, contrivance, instrument or paraphernalia intended to be used for unlawfully injecting or consuming controlled substances….” People v. Gutierrez (97) 52 CA4th 380, 387-88 [60 CR2d 561] held that the phrase “intended to be used” does not require a specific intent to use the object. Rather, an item is “intended to be used for unlawfully injecting or consuming controlled substances” if the defendant (1) actually intends it to be so used, or (2) should know, based on the item’s objective features, that it is intended to be so used.
The question of whether the syringe must be operable was not resolved in the published portion of Gutierrez. At a minimum, inoperability of the syringe would suggest that it was not intended to be used for unlawfully injecting or consuming controlled substances. If (1) the syringe was inoperable when it entered the jail, (2) defendant knew it was inoperable and (3) defendant had no way of making it operable, arguably it was not “intended to be used” to inject drugs. (Cf., FORECITE F 12.00 n6 [Possession Of Controlled Substance Requires Usable Quantity].)
F 18.30 n6 Possession Of Drugs In Jail Or Prison (PC 4573.6): Applicability To State Mental Hospitals.
People v. Superior Court (Ortiz) (2004) 115 CA4th 995 held that PC 4573.6 prohibits drug possession on the grounds of state mental hospitals where inmates have been transferred for treatment pursuant to PC 2684. Because such hospitals are a custodial institution with regard to the inmates who are transferred there pursuant to PC 2684, and their movement is controlled by peace officers, the hospital is an institution for the purposes of PC 4573.6.
F 18.30a
Possession of Drugs or Alcohol In Prison Or Jail
(PC 4573.5)
To establish unauthorized possession, the prosecution must prove beyond a reasonable doubt that:
1. The possession was not authorized by the [jail] [prison] rules; and
2. The possession was not specifically authorized by the warden, superintendent, jailer or other person in charge of the [jail] [prison] [__________] [other].
Points and Authorities
The prosecution bears the burden of proving the content of the jail or prison rules and lack of authorization in a prosecution for violation of PC 4573.5. (People v. Zepeda (64) 231 CA2d 18, 21 [41 CR 571].)
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
