Filed 9/30/14 P. v. Watts CA3
                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                        (Glenn)
                                                            ----




THE PEOPLE,                                                                                  C075868

                   Plaintiff and Respondent,                                   (Super. Ct. No. 13NCR09664)

         v.

HUBERT FRANKLIN WATTS, JR.,

                   Defendant and Appellant.




         In the course of an arrest, a police officer removes a cell phone from the arrestee,
not knowing there is contraband hidden in the phone’s battery compartment. The officer
places the cell phone in a bag at the site of the arrest and brings that bag into the jail
separately from the arrestee. Does the arrestee have a right to control or exercise
dominion over that cell phone while in jail, such that he is in constructive possession of
the contraband inside the phone while in jail? On the evidence here, the answer is “no.”




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                   FACTUAL AND PROCEDURAL BACKGROUND
       On April 13, 2013, Orland Police Officer Grant Carmon arrested defendant Hubert
Franklin Watts, Jr. When he searched defendant at the site of the arrest, Officer Carmon
found (among other items) three cell phones and a cell phone battery in defendant’s
pockets. Officer Carmon placed these items in a paper bag and put them in his patrol car.
       Later on at the police department, Officer Carmon told defendant he would be
bringing the phones to the jail along with defendant’s other property. Just before entering
the jail, Officer Carmon asked defendant if he had any contraband and defendant
answered no.
       While inside the jail, another officer inspected the cell phones that Officer Carmon
brought in and discovered a loose object inside one of the phones. The other officer
handed the phone to Officer Carmon, who opened the phone to find a white pill in the
battery compartment. The pill was identified as carisoprodol.
       Based on the pill in the cell phone, a jury found defendant guilty of unauthorized
possession of drugs in jail. Based on a separate incident, defendant was also convicted of
possession of oxycodone and possession of drug paraphernalia. Taking into account
some enhancement allegations defendant had admitted before trial, the trial court
sentenced him to an aggregate prison term of nine years and four months, which included
six years for the charge of possessing drugs in jail.
                                       DISCUSSION
       There Was Insufficient Evidence That Defendant Possessed Drugs While In Jail
       Defendant challenges the sufficiency of evidence to support his conviction for
unauthorized possession of drugs in jail. The standard of review is well settled. We
review the whole record in the light most favorable to the judgment to determine whether
it discloses substantial evidence, that is, evidence which is reasonable, credible, and of
solid value such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.)

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       Penal Code section 4573.8 provides in relevant part as follows: “Any person who
knowingly has in his or her possession in any . . . jail . . . drugs in any manner, shape,
form, dispenser, or container . . . without being authorized to posses the same . . . is guilty
of a felony.”1 “Possession may be actual or constructive.” (People v. Showers (1968)
68 Cal.2d 639, 643.) Both parties agree defendant did not have actual possession of the
carisoprodol contained in the cell phone while in the jail, but defendant contends he did
not have constructive possession either.
       Our Supreme Court has defined constructive possession as follows: “Constructive
possession exists where a defendant maintains some control or right to control contraband
that is in the actual possession of another.” (People v. Morante (1999) 20 Cal.4th 403,
417.) Defendant contends he did not constructively possess the cell phone containing the
contraband because once the phones were placed in the bag and secured in the officer’s
patrol car he had no right to exercise dominion or control over the cell phone.
       The People make two arguments to support their contention that defendant was in
constructive possession of the cell phone at the jail. First, the People contend defendant
had an opportunity to prevent the drugs from being brought into the jail. They argue that
defendant was aware Officer Carmon was going to book the cell phones into jail, and
therefore Officer Carmon brought the cell phone into the jail with defendant’s full
knowledge and consent.




1      Interestingly enough, the prosecutor did not charge defendant with knowingly
bringing, or assisting in bringing, a controlled substance into a jail. (See Pen. Code,
§ 4573.) Thus, we have no occasion to consider the potential application of that offense
to these facts.

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        Knowledge of where the cell phone was going to go does not amount to a right to
control the phone. Even if defendant had told Officer Carmon what was in the cell phone
just prior to entering the jail, there is no evidence Officer Carmon would not have
brought the cell phone into the jail.
        Texas has a similar statute to California that makes it an offense to possess a
controlled substance while in a correctional facility. In Woodard v. State (Tex. App.
2011) 355 S.W.3d 102, the appellate court considered whether the defendant was in
possession of cocaine while in the jail. (Id. at p. 104.) The defendant was arrested at her
home and of her own accord brought her purse, which contained cocaine. (Id. at p. 108.)
Because the defendant was handcuffed when she was brought into the jail, the officer had
to carry her purse in and was thereafter going to transfer it to jail staff. (Id. at p. 105.)
        On these facts, the court concluded as follows: “Although [the trial court] could
have rationally determined that appellant knew about the cocaine in her purse that came
with her when she was arrested and placed in the patrol car, we conclude, viewing the
evidence in the light most favorable to the verdict, that the jury could not have rationally
determined beyond a reasonable doubt that appellant exercised care, custody, control, or
management over the cocaine in the purse during the period of time when she was in the
booking area of the Waller County Jail.” (Woodard v. State, supra, 355 S.W.3d at p.
111.)
        While this decision is not binding authority in California, we believe the rationale
applied in Woodard should also apply here. Like defendant in this case, the defendant in
Woodard knew about the drugs in her purse. In fact, the evidence in Woodard showed
the defendant chose to bring the purse with the drugs with her, whereas defendant here
really had no choice. But knowledge of where drugs are or of where drugs might be
going, by itself, does not amount to control over those drugs while in jail, when an officer
is in actual possession of them.



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       The second argument the People rely on (for the first time on appeal) is that
defendant had control over the cell phone since under California law “the sheriff is
required to ‘take charge of, safely keep, and keep a correct account of, all money and
valuables found on each prisoner when delivered at the county jail’ ” and “the sheriff
must distribute or deliver the money and/or valuables ‘as the prisoner directs.’ ” (See
Gov. Code, § 26640.) Thus, the People conclude defendant retained some control over
the cell phone taken from him because under this provision of law he could have directed
the sheriff what to do with it.
       The People have misinterpreted Government Code section 26640. The language
of the statute is plain: the statute applies to “all money and valuables found on each
prisoner when delivered at the county jail.” (Ibid., italics added.) By its plain terms, this
statute applies to property found on the person at the jail. It does not apply to property
taken from the person before arriving at the jail.
       In construing this statute, we find some assistance in Penal Code section 1412.
The relevant portion of that statute provides that “[w]hen money or other property is
taken from a defendant, arrested upon a charge of a public offense, the officer taking it
must at the time give duplicate receipts therefor, specifying particularly the amount of
money or the kind of property taken.” (Pen. Code, § 1412, italics added.) The general
language of this statute -- “taken from a defendant, arrested upon a charge of a public
offense” -- is in stark contrast to the specific language of Government Code section
26640, which refers to “money and valuables found on each prisoner when delivered at
the county jail.” (Gov. Code, § 26640, italics added.)
       Had the Legislature intended Government Code section 26640 to apply to property
taken from an arrestee at the site of arrest, rather than at the jail, it could have used the
general phrasing it used in Penal Code section 1412. The fact that it did not do so
supports the conclusion that the Legislature did not intend Government Code section
26640 to apply to property taken from a person before entering the jail.

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        On the record before us, we find no evidence on which the jury could have
rationally concluded that defendant had constructive possession of the cell phone while in
jail.
        At oral argument, the People argued that at the very least the evidence here would
support modification of defendant’s conviction to possession of a controlled substance
(e.g., Bus. & Prof. Code, § 4060; Health & Saf. Code, § 11377) because the evidence
showed that defendant was in actual, physical possession of the cell phone containing the
carisoprodol pill before Officer Carmon took the phone from him. The People
acknowledged, however, that for their argument to have merit, carisoprodol must be a
controlled substance under California law. Our research reveals that it is not.
        At trial, Officer Carmon testified that carisoprodol is “a Schedule IV opiate.” But
examination of California’s schedule IV (Health & Saf. Code, § 11057) reveals that
carisoprodol is not listed there, nor is it listed in any of the other California schedules of
controlled substances (id., §§ 11054, 11055, 11056, 11058). Carisoprodol is a schedule
IV controlled substance under federal law (see 21 C.F.R. § 1308.14(c)(5) (2012)), but it
was not added to the federal schedule until December 2011 (see 76 Fed.Reg. 77330 (Dec.
12, 2011)), and it appears that no corresponding amendment to the California schedules
of controlled substances has been proposed since the federal amendment. At the very
least, no such amendment occurred before the time defendant was found in possession of
the cell phone containing the carisoprodol pill in April 2013. Accordingly, we find no
basis for modifying defendant’s conviction for unauthorized possession of drugs in jail
and therefore we must reverse that conviction for insufficiency of the evidence.




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                                     DISPOSITION
       Defendant’s conviction for unauthorized possession of drugs in jail is reversed.
Defendant’s remaining convictions are affirmed, and the case is remanded to the trial
court for resentencing.



                                                       ROBIE                , J.



We concur:



      NICHOLSON            , Acting P. J.



      DUARTE               , J.




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