Filed 4/24/13 P. v. Ansley 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                        (Lassen)
                                                            ----



THE PEOPLE,                                                                                  C070469

                   Plaintiff and Respondent,                                     (Super. Ct. No. CH028607)

         v.

EDWARD ANSLEY,

                   Defendant and Appellant.

         A jury found defendant Edward Ansley guilty of possessing a sharp instrument in
a penal institution. In a bifurcated proceeding, defendant admitted 21 prior strikes.
         Sentenced to a state prison term of 25 years to life consecutive to his current term,
defendant contends that insufficient evidence supported the verdict and that the trial court
erred by instructing the jury on constructive possession. We shall affirm.
                         FACTUAL AND PROCEDURAL BACKGROUND
         Around 8:30 a.m. on December 10, 2010, correctional officers at High Desert
State Prison, where defendant was an inmate, were conducting cell searches, which
included using a metal detection wand. Correctional Officer Stephen Hobbs, on duty as a
housing officer, heard a positive indication from a detection wand employed by his




                                                             1
partner as he held it near defendant’s buttocks. The wanding was done in the “day
room,” an open area far from any metal which could give a false positive.
       Officer Hobbs escorted defendant, now handcuffed and wearing only white boxer
shorts, to a contraband watch holding cell in a different building.1 The cell is constructed
of metal mesh on all sides, so that a person inside can be observed from outside, and is so
small that an occupant can only stand, without being able to move any substantial
distance.2 Before putting defendant in the cell at 8:40 a.m., Officer Hobbs inspected it
and found it free of contraband and in good condition. After putting defendant in the cell,
Officer Hobbs recorded his observations of defendant every 15 minutes in a log (offered
in evidence as an exhibit).
       Officer Hobbs remained outside the cell observing defendant for about an hour
and one-half. But the officer’s attention was then diverted (for a period he estimated on
direct testimony as about five minutes) when he had to help other officers subdue a
combative inmate coming out of a nearby cell.3
       After that distraction, Officer Hobbs’s attention was drawn back to defendant’s
cell by “[a] very foul odor[,]” “like someone pulled the lid off a septic tank.” The officer



1     Officer Hobbs testified that the shorts of inmates placed in contraband watch
holding cells are normally taped at the waist and legs, but he could not recall whether
defendant’s shorts were taped.
2      Photographs of the holding cells, with a person inside, were offered in evidence as
exhibits.
3      Officer Hobbs admitted he had previously testified that he did not know for how
long he was distracted. He was sure, however, that it could not have been for much
longer than five minutes.

       The observation log shows that Officer Hobbs’s last notation before defendant was
removed from his cell was made at 10:25 a.m. Officer Hobbs noted defendant’s removal
from the cell at 10:40 a.m. Officer Rodriguez then made two notations: at 10:50 a.m.,
“removed from cell to retrieve object,” and at 11:05 a.m., “back in holding cell.”

                                             2
spotted a “white, brownish object” on the floor of the cell. He got another officer to
contact the investigative services unit (ISU) to inspect the object.
       ISU Officers Rodriguez and Brackett arrived and observed defendant still in the
cell, handcuffed, and wearing white boxer shorts taped at the waist and legs. Officer
Rodriguez spotted the object on the floor; it was white with brown fecal matter on it
which appeared to be fresh.
       After removing defendant from the cell at 10:40 a.m., Officer Rodriguez picked up
the object and washed it off. What remained was an outer “sheath” or “packaging”
consisting of transparent plastic wrapped over white paper, covering a piece of sharpened
metal attached to a plastic handle. The object was too wide to have gone through the
wire mesh of the holding cell walls.
       According to Officer Rodriguez, it is common for inmates to conceal weapons in
their rectal cavities after enclosing the weapons in protective sheaths like the one found
here. Officer Rodriguez was aware that even when placed in holding cells in handcuffs
and with their shorts taped according to protocol, inmates can manipulate weapons out of
their rectal cavities, remove the weapons through their shorts, “dig [them] out through
their waist area in the back area and pull [them] out that way.” Normally, such an event
would leave evidence in the form of “[t]orn shorts, fecal matter on the hands and fecal
matter within the shorts itself [sic].” Officer Rodriguez did not inspect defendant’s
shorts, hands, or shoes, however (which he admitted he should have done), because he
knew that Officer Hobbs had inspected the cell before putting defendant inside; therefore,
he concluded on that basis that the object on the cell floor came from defendant.
       Defendant did not put on any evidence. His counsel argued that because the
officers’ investigation was “very sloppy,” the prosecution had failed to prove beyond a
reasonable doubt the weapon came from defendant and had not been on the cell floor “for
who knows how many hours” before it was observed.



                                              3
                                       DISCUSSION
                                              I
                                Sufficiency Of The Evidence
       Defendant contends there was insufficient evidence to support the verdict. He
reasons that the jury could have found him guilty only by inferring: “(a) [defendant]
somehow secreted a sharp metal object inside his rectum before officers’ arrival; (b) then,
while [defendant]’s hands were both handcuffed behind his back, [defendant] was able to
pull out the sharp metal object from inside his anus without injuring himself sufficiently
to bleed enough to warrant the officers’ attention; (c) [defendant] was able to remove the
object from underneath his clothing without disturbing the tape that created a virtually
sealed envelope out of his shorts; (d) [defendant] somehow managed to throw or place
that object in a corner of the cell, all without making noise or leaving any trace of
evidence, AND; (e) . . . [defendant] was able to do all this in the brief time Officer
Hobbs’[s] attention was diverted by the other inmate.” According to defendant: “If not
physically impossible, such a feat is highly improbable in light of the totality of the
evidence.” We are not persuaded.
       We review a claim of insufficient evidence under the substantial evidence
standard. We consider the evidence, including the reasonable inferences therefrom, in
the light most favorable to the verdict, and affirm if a reasonable jury, so construing the
evidence, could have returned that verdict. (People v. Valdez (2004) 32 Cal.4th 73, 104;
People v. Johnson (1980) 26 Cal.3d 557, 578.)
       Here, despite defendant’s tendentious account of the evidence, the inferences he
has set out are not the only reasonable inferences the jury could have drawn from the
physical facts presented.




                                              4
       Officer Rodriguez’s testimony that inmates have been known to secrete weapons
in their rectums, then surreptitiously remove them, even while under continuous
observation, handcuffed, and with shorts taped, was unrebutted. Therefore, despite
defendant’s attempt to discredit that testimony by repeating the word “somehow,” it
constituted substantial evidence that the “feat” he calls “highly improbable” could be
done and he did it according to the jury.
       Defendant’s assertion that he could not have removed the weapon from his person
without causing injury and bleeding, even though it was protected by a paper and plastic
sheath, is sheer speculation. Officer Rodriguez’s testimony as to the physical evidence
left behind by this method of removing a concealed weapon did not mention injury or
bleeding. Thus, the jury could reasonably infer that defendant could have committed the
charged offense without injuring himself.
       Defendant’s assertion that the jury must have found he “somehow managed to
throw or place” the weapon on the cell floor “without making noise or leaving any trace
of evidence” mischaracterizes the evidence. There was no evidence that he threw
anything, and the prosecutor did not so argue. There was also no evidence either that
defendant evacuated the weapon “without making noise” or that he could not have done
so silently. (In any event, the disturbance going on simultaneously could have prevented
Officer Hobbs from hearing any noise made by defendant.) Finally, the evidence was
overwhelming that defendant did not fail to “leav[e] any trace of evidence” when he
deposited the weapon, along with the substance Officer Rodriguez had to rinse off before
inspecting the weapon, on the cell floor.
       Defendant’s claim that it was improbable he could have evacuated the weapon “in
the brief time Officer Hobbs’[s] attention was diverted” makes little sense. All the




                                             5
evidence suggested that the diversion lasted for several minutes, which is presumably
ample time to do what defendant was alleged to have done.
       To find instead that the weapon was already in the holding cell when defendant
was placed there, and might have been there for hours, the jury would have had to reject
the following undisputed evidence: (1) a metal detection wand gave a positive indication
when passed near defendant’s buttocks, with nothing nearby that could have produced a
false positive; (2) Officer Hobbs inspected the holding cell and found it free of
contraband and in good condition before placing defendant inside; (3) Officer Hobbs
continuously observed defendant in the holding cell for at least an hour and one-half
without detecting anything suspicious; (4) after the distraction that prevented him from
observing defendant for a few minutes, he suddenly perceived an odor “like someone
pulled the lid off a septic tank”; (5) immediately afterward, he saw an object on the cell
floor; (6) that object turned out to be a weapon with fecal matter on it; and (7) Officer
Rodriguez observed that the fecal matter was fresh. In light of that evidence, however
improbable defendant’s method of secreting and removing the weapon might seem to a
person unfamiliar with inmate practices, the conclusion that defendant secreted and
removed the weapon by that method was the only reasonable conclusion to draw.
Sufficient evidence supported defendant’s conviction.
                                              II
                                  Constructive Possession
       Defendant contends the trial court erred by instructing the jury it could convict
based on constructive possession, a theory of liability which did not fit the facts. Because
sufficient evidence supported defendant’s conviction based on actual possession, and the
jury was instructed to disregard any instruction that did not fit the facts, any possible
error in instructing on constructive possession was harmless. (See People v. Crew (2003)
31 Cal.4th 822, 849; People v. Jackson (1996) 13 Cal.4th 1164, 1225.)



                                              6
                                     DISPOSITION
     The judgment is affirmed.



                                              ROBIE   , J.



We concur:



     NICHOLSON          , Acting P. J.



     BUTZ        , J.




                                          7
