People v. Castro CA5

Filed 10/10/22 P. v. Castro CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

FIFTH APPELLATE DISTRICT

THE PEOPLE,
F080267
Plaintiff and Respondent,
(Kern Super. Ct. No. LF011885A)
v.

SIMON CHAVEZ CASTRO, OPINION
Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Kern County. Charles R.
Brehmer, Judge.
Richard M. Oberto, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, and Cavan
M. Cox II, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
 INTRODUCTION
Appellant and defendant Simon Chavez Castro pulled a knife on officers and
slashed at them. A struggle ensued, defendant resisted arrest, and he was ultimately
taken into custody. When he was booked at the jail, he was found in possession of
methamphetamine. He was charged with three counts each of attempted murder, assault
with a deadly weapon, felony resisting committed against three officers, and a single
count of possession of a controlled substance in jail. In closing argument, defense
counsel conceded defendant’s guilt of possession of a controlled substance in jail but
challenged the evidence in support of the other charges. After a jury trial, defendant was
convicted of two counts of assault with a deadly weapon, three counts of felony resisting,
and one count of possession of a controlled substance in jail. The jury was unable to
reach verdicts on three counts of attempted murder and one count of assault with a deadly
weapon. Defendant was sentenced to six years four months in prison.
On appeal, defendant contends that his conviction in count 10 for possession of a
controlled substance in jail must be reversed because the jury was not instructed on an
alleged element of the offense, that the prosecution had to prove defendant knew he was
entering a jail when he was in possession of the methamphetamine, and the alleged
instructional error was prejudicial. Defendant acknowledges that defense counsel did not
raise this objection at trial and conceded his guilt on this offense, but argues counsel was
prejudicially ineffective for doing so.
Defendant further argues the matter must be remanded for the court to reconsider
his sentence because of subsequently enacted amendments to Penal Code1 section 654;
the People concede this point.
We affirm defendant’s convictions but remand the matter for reconsideration of
his sentence.

1 All further statutory citations are to the Penal Code unless otherwise indicated.

2.
 FACTS
Defendant lived in a house in Arvin. Raul Arreguin (Arreguin) and his partner
lived in the house next to defendant. On April 19, 2018, they saw defendant going in and
out of his house and shouting threats that he wanted to kill everyone on the block before
he got kicked out of his house. Arreguin saw a knife in defendant’s waistband. Arreguin
knew about past incidents where defendant used a hammer to destroy the inside of his
house and also knew he used drugs. Arreguin thought defendant was acting like he was
on something and decided to call 911.
Arrival of Officers
Around 7:00 p.m. on April 19, 2018, Sergeant Gonzalez, Officer Archuleta, and
Officer Barker of the Arvin Police Department responded to defendant’s residence on the
dispatch that a person was under the influence, armed with a large kitchen knife,
vandalizing his home with a hammer, and saying he would murder everyone before he
lost his house. The three officers were in uniform and carrying sidearms; they arrived in
marked patrol vehicles.
Sergeant Gonzalez and Officer Archuleta were the first officers to arrive. As they
approached the house, Gonzalez drew his gun and held it low, and Archuleta held his
Taser, since the dispatch stated that someone inside was armed.
Sergeant Gonzalez noticed the front door did not have a knob and was only
secured by a deadbolt. He knocked on the front door and announced, “Arvin Police
Department” in both English and Spanish several times, but no one answered. Both
Gonzalez and Archuleta heard sounds from inside the house alerting them that someone
was inside. Gonzalez thought he heard metallic sounds and believed someone was
“either jimmying or messing with the dead bolt or the door handle,” but the door
remained closed.

3.
Initial Contact with Defendant
Sergeant Gonzalez again knocked and announced himself. The door started to
open, and Gonzalez stepped back. A man, later identified as defendant, stepped forward.
Defendant was holding a remote control and a bamboo stick. He appeared
confrontational and immediately asked the officers in Spanish why they were there.
Sergeant Gonzalez responded to defendant in Spanish, saying they had received a
report that someone was in the house, had a knife, and was trying to kill someone, and
they wanted to make sure everybody was okay. Defendant said everyone was fine.
Sergeant Gonzalez testified that when defendant walked out of the house, he
recognized defendant from a prior unrelated contact in November 2017, when he
encountered defendant in the lobby of the Arvin Police Department. Defendant had
entered the lobby and asked for an officer so he could file a theft report. Gonzalez
happened to be present, spoke to defendant in Spanish, and asked if he needed help.
They had a normal conversation at that time about defendant’s report.
As Sergeant Gonzalez stood outside defendant’s house on April 19, 2022, he told
defendant, “ ‘Hey, I remember you. I spoke to you at the police department.’ ”
Defendant indicated he also recognized Gonzalez, his demeanor changed, and he
appeared to calm down because “he called me hijo, which means like son. And he was
like ‘que paso, hijo?’ Like he asked me what’s going on, son?”
Sergeant Gonzalez asked defendant what was going on. Defendant said he did not
know and again asked why they were there. Gonzalez asked if everything was fine, and
defendant said yes. Gonzalez asked if anyone was inside, and defendant said no.
Gonzalez asked defendant to walk away from the door so they could talk to him.
Defendant complied and walked away from the house. Sergeant Gonzalez
returned his firearm into his holster because defendant did not appear to be a threat.
Gonzalez asked defendant if they could search him for weapons, and defendant agreed.

4.
Gonzalez asked defendant to drop the remote control and the bamboo stick, and he
complied. Gonzalez asked if he had any guns or knives on him, and defendant said no.
Sergeant Gonzalez asked defendant to place his hands behind his head. Defendant
raised both hands to the level of his forehead but failed to lock his fingers together.
Sergeant Gonzalez asked defendant to interlock his fingers behind his head and
demonstrated what he wanted defendant to do. Defendant refused and asked, “For
what?” Gonzalez repeated the request and reminded defendant that he agreed to be
searched. Defendant said to go ahead and search him.
Defendant Pulls the Knife
Sergeant Gonzalez was standing on defendant’s right side, Officer Archuleta was
on defendant’s left side, and they approached him to conduct the search. Archuleta
returned his Taser to his holster so he could search defendant and reached for defendant’s
hand.
Defendant suddenly dropped his right hand behind his back, and in a fast
movement, he pulled a large kitchen knife from his waistband with his right hand and
swung it at both officers. Sergeant Gonzalez was within an arm’s length of the blade.
Officer Archuleta was shocked because defendant had been compliant.
Sergeant Gonzalez testified that defendant’s right arm was fully extended, and his
right hand was near the serrated part of the knife. Defendant appeared to aim for the area
between Gonzalez’s shoulder and his head. Gonzalez raised both of his arms and
blocked defendant’s swing. Officer Archuleta testified that defendant looked right at him
and slashed at his face with the knife in a violent manner. Gonzalez grabbed defendant’s
right wrist and hand in an attempt to gain control over him. Defendant tried to pull away
from Gonzalez and was yelling that he would kill Gonzalez, and that he would also kill
both officers.
Officer Archuleta testified that he threw punches at defendant so he would drop
the knife, but defendant held onto the weapon.

5.
 Defendant backed up against his house. Sergeant Gonzalez used both his hands,
pinned defendant’s right arm against a stucco pillar, and told him to drop the knife.
Defendant held onto the knife and continued to yell that he was going to kill him.
Gonzalez kept one hand on defendant’s right wrist, and “socked him one time in his face”
with his other hand, to get defendant to drop the knife. Defendant became even more
angry, held onto the knife, kept fighting, and again screamed he was going to kill them.
Officer Barker had arrived at the scene when Sergeant Gonzalez and Officer
Archuleta were initially speaking to defendant. Barker saw Archuleta reach for
defendant’s hand, and defendant pull out the knife with his right hand. Barker testified
that defendant made a slashing motion at Archuleta, who moved out of the way. Barker
moved in and reached for defendant’s left hand as Gonzalez grabbed defendant’s right
hand.
As the struggle continued, defendant still held the knife in his right hand, and
reached over with his left hand to grab the knife’s blade. Sergeant Gonzalez pulled away
from defendant, and part of the blade broke into defendant’s left hand. There was still a
small part of the blade attached to the handle. Defendant continued to hold the knife’s
handle with his right hand, and the blade fell to the ground.
Sergeant Gonzalez tried to maintain control of defendant’s right hand and hit
defendant’s left wrist. Officer Barker grabbed defendant’s left hand, and the three
officers forced defendant to the ground on his back. Defendant tried to stab Gonzalez in
the face. Defendant spit at the officers and kicked Barker in the chest with both feet.
Sergeant Gonzalez testified that he repeatedly told defendant in Spanish to drop
the knife during the struggle. Officers Barker and Archuleta gave the same commands in
English. Defendant again tried to stab Gonzalez in the face. Gonzalez hit defendant
repeatedly in the head and rib cage, got on top of defendant, and slammed his wrist into
the ground. Barker hit defendant on the side of his head. Defendant continued to kick,

6.
yell, and spit at them, and said he would kill them. Defendant rolled away from
Gonzalez, kicked Barker, and swung the knife at him.
The officers pinned defendant on the ground, and finally gained control of
defendant and the knife. Defendant continued to resist as the officers placed him in
handcuffs.
Additional officers arrived and determined no one else was in the house. The
knife was recovered; the handle was six inches, and the blade was seven and a half
inches. There was tape around the handle that held the blade in place until it broke off.
The blade was serrated and sharp.2
Treatment of Injuries
After defendant was restrained, Sergeant Gonzalez told him, “ ‘The fight is over
already. Get in the vehicle. You’re going to jail.’ ” Defendant continued to curse the
officers in Spanish, and he spit and kicked as they escorted him to a patrol car. Gonzalez
believed defendant’s behavior was consistent with being under the influence of
methamphetamine or cocaine. Defendant finally stopped spitting and kicking when he
was placed in the backseat of a patrol car.
Defendant was bleeding from his nose, mouth, and hands. He had cuts on his
hand from grabbing the blade, and knots on top of his head and above his right eyebrow
from the struggle.
An ambulance arrived at the scene and medical personnel were going to treat
defendant. Sergeant Gonzalez opened the door to the patrol car, asked defendant if he
was okay, and defendant said yes. “He was talking just fine then. I said, ‘Stop spitting
on them so they can treat your hand. Is that all right?’ He said it was. He stepped out of

2 Mr. Arreguin, defendant’s neighbor, testified that he was standing outside and
saw the officers arrive at defendant’s house. He saw defendant walk out of the house and
talk to the officers. He also saw defendant pull out the knife, slash at the officers, and the
ensuing struggle, and heard defendant threaten the officers.
7.
the vehicle. I was standing with him when they started treating his injuries.” Gonzalez
watched as they cleaned defendant’s hand wound; defendant did not spit or kick at them.
Sergeant Gonzalez testified that the medical personnel wanted to move defendant
to the ambulance and transport him to the hospital. Gonzalez and two other officers
walked defendant to the gurney. Gonzalez “explained to him, ‘[T]he fight is already
over. We’ll sit you in the gurney so they can treat you. Is that okay? I’m going to
release your handcuff’ because he was still handcuffed to the rear. [¶] His hands were
behind his back. I told him, ‘We’re going to release the handcuffs. I’ll sit you on the
gurney so don’t fight anymore, okay?’ ” Gonzalez testified that defendant agreed, he
complied with instructions and got on the gurney, and he was handcuffed to the gurney
and placed in the ambulance.
Defendant was transported by ambulance to the hospital. Officer Archuleta rode
in the ambulance with defendant, and Officer Barker followed in his patrol vehicle.
Sergeant Gonzalez did not go to the hospital with defendant.
Officer Archuleta testified that during the ambulance ride, defendant was
handcuffed to the gurney, and he “was just laying there with his eyes opened. … I don’t
remember him talking at all or saying anything. He was completely calm.” When they
arrived at the hospital, Archuleta and Officer Barker stayed with defendant while he
received stitches for deep cuts on his fingers.
The officers also received treatment for their injuries. Sergeant Gonzalez was
treated for cuts and scratches on his left index finger from hitting the stucco pillar,
scrapes on his hands from the knife, and blood on his face. Officer Barker was bleeding
from cuts and scrapes on his hand. Officer Archuleta’s hand was bleeding, and he had a
laceration on his finger.
Search at the Jail (Count 10)
Sometime around 10:30 p.m., defendant’s treatment at the hospital was completed,
and he was medically cleared to be taken to the Kern County Sheriff’s Department’s

8.
Central Receiving Facility (CRF) for booking. The Arvin Police Department did not
have a jail and booked arrestees into the CRF, that was part of the Kern County Jail and
operated by the sheriff’s department.
Officers Barker and Archuleta drove defendant from the hospital to the CRF in a
marked patrol vehicle. Upon arrival at the jail, defendant was driven into the basement,
and both officers escorted defendant to the door that led to the booking area.
The prosecution introduced a photograph that showed signs in English and
Spanish posted outside the entrance to the booking area, that warned people not to bring
certain items into the jail. The sign in English stated:

“WARNING [¶] YOU ARE ENTERING A JAIL [¶] Anyone who
knowingly brings into, [¶] sells, furnishes, or possesses [¶] any type of
alcoholic beverage, drug, [¶] controlled substance, firearm, [p] deadly
weapon, or other item useful to aid escape [¶] is guilty of a felony and may
be punished [p] by incarceration in the state prison. [¶] California Penal
Code 4535, 4573, 4573.5, 4573.6, 4573.8, 4573.9, 4574.”
Officer Barker reviewed the photographs and identified the door as the entrance
where he escorted defendant into the booking area. Barker believed the two signs were
always posted next to that door, but he was not certain. Barker testified that the entrance
doors were unlocked from inside, and then someone “buzzed” you into the booking area.
Barker could not remember if he stopped to allow defendant to read the signs before they
entered. Barker knew defendant could speak some English, but he did not know whether
defendant could read English or Spanish.
Deputy De La Huerta of the sheriff’s department was on duty at the booking office
in the jail’s basement on the night that defendant was brought in. He was responsible for
searching suspects booked into custody, while another deputy asked the suspects for their
names and identifying information.

“Q. During this search, do you inform or tell anyone you’re
searching that they can’t have anything that they’re bringing into jail?

9.
 “[De La Huerta]. Yes, as well as it’s posted before entering the
jail.” (Italics added.)
Deputy De La Huerta, who spoke Spanish, reviewed the prosecution’s
photographic exhibits that showed the English and Spanish language signs posted outside
the door. He testified that the English and Spanish signs shown in Exhibit No. 45 were
the same signs posted outside the entrance door in April 2018. He confirmed the Spanish
language sign posted outside the jail’s entrance door stated the same warning as the
English language sign, that narcotics could not be brought into the jail. De La Huerta
believed the photograph that showed the entrance door (Exhibit No. 46) was taken before
April 2018. De La Huerta explained that a different entrance door to the booking area
was used in April 2018, when defendant was booked, but testified that the bilingual
warning signs were posted next to the door that was used in April 2018, and both signs
stated the same warning as shown in the photographs.
Deputy De La Huerta testified that when defendant was brought into the jail, he
searched defendant and found a small plastic baggy with a white powdery substance in
the coin pocket of his pants. It consisted of 0.0929 grams of methamphetamine, a usable
amount.3
PROCEDURAL BACKGROUND
On May 15, 2018, an information was filed in the Superior Court of Kern County
charging defendant with committing the following offenses against, respectively,
Sergeant Gonzalez, Officer Archuleta, and Officer Barker: counts 1 through 3, attempted
first degree premeditated murder of a person he knew or reasonably should have known
was a peace officer engaged in the performance of his duties (§§ 664, subd. (e), 187,

3 As will be explained, defendant was charged and convicted of count 10,
possession of methamphetamine in a penal institution in violation of section 4573.6,
based on this evidence; defense counsel conceded in closing argument that defendant was
guilty of this offense. On appeal, defendant asserts the court failed to instruct the jury on
an alleged element of the offense, whether he knew he was entering a jail at the time he
possessed the methamphetamine.
10.
subd. (a), § 189); counts 4 through 6, assault with a deadly weapon on person he knew or
reasonably should have known was a peace officer engaged in the performance of his
duties (§ 245, subd. (c)); and counts 7 through 9, attempting to deter or resist an
executive officer by force, threat, or violence (§ 69). As to counts 1 through 3, and 7
through 9, it was further alleged defendant personally used a deadly weapon, a knife
(§ 12022, subd. (b)(1)).
Defendant was also charged with count 10, possession of a controlled substance,
methamphetamine, in a penal institution (§ 4573.6).4
Instruction for Count 10
As relevant to defendant’s contentions in this appeal, the court discussed count 10
during the instructional conference and stated that it was going to give the People’s
proposed instruction of CALCRIM No. 2748 on the elements of the charged violation of
section 4573.6, possession of a controlled substance in a penal institution. Defense
counsel did not object to the instruction on count 10.
The court read CALCRIM No. 2748 to the jury on the elements of count 10,
which stated:

“The defendant is charged in Count 10 with possessing a controlled
substance, alleged to be methamphetamine, in a penal institution in
violation of … Section 4573.6.

“To prove that the defendant is guilty of Count 10, the People must
prove that: One, the defendant possessed a controlled substance in a penal
institution or on the grounds of a penal institution. [¶] Two, the defendant
knew of the controlled substance’s presence. [¶] Three, the defendant
knew of the substance’s nature or character as a controlled substance. [¶]
Four, the controlled substance was methamphetamine. [¶] Five, the
controlled substance was a usable amount.

4 As to count 10, the information alleged the controlled substance was cocaine.
Prior to trial, the court granted the motion to correct the information by interlineation to
allege the controlled substance was methamphetamine.
11.
 “A penal institution is a county or city jail. A usable amount is a
quantity that is enough to be used by someone as a controlled substance.
Useless traces or debris are not usable amounts. On the other hand, a
usable amount does not have the be enough in either amount or strength to
affect the user. [¶] The People do not need to prove that the defendant
knew which specific controlled substance he possessed. [¶] A person does
not have to actually hold or touch something to possess it. It is enough if
the person has control over it, either personally or through another
person.”5 (Italics added.)
Closing Arguments
As relevant to defendant’s appellate contentions about count 10, the prosecutor
addressed the charged offense of possession of a controlled substance in jail in closing
argument as follows:

“The last count is possession of [a] controlled substance in jail. This
is why we have the evidence about the jail search. Once the defendant was
cleared by medical and they took him to the jail and he went through the
door with the sign saying don’t bring any drugs into jail, the defendant had
some methamphetamine in his pocket. [¶] We heard from the criminalist.
We heard from the officer that searched him. We heard from the officer
that booked the evidence.” (Italics added.)
The prosecutor reviewed the elements that defendant unlawfully possessed a
controlled substance in a penal institution or on the grounds of a penal institution, the
controlled substance was in his pocket, a penal institution included a city or county jail,
the CRF was the county jail, and it qualified as a penal institution. The prosecutor argued
the next element was whether defendant knew of the substance’s presence, and
“[c]ommon sense, circumstantial evidence tells us it was in his pocket. We also know
that there were reports of him using methamphetamine,” and the defense theory was that
he was on methamphetamine at the time of his arrest. The prosecutor added, “I don’t
think this [count] is contested too much by defense.”

5 The court’s instruction was virtually identical to the pattern version of
CALCRIM No. 2748, which has been upheld as a correct statement of the elements of
violating section 4573.6. (See, e.g., People v. Wyatt (2008) 165 Cal.App.4th 1592,
1602.)
12.
 In her closing argument, defense counsel extensively challenged the evidence as to
all charges committed against the officers, and argued defendant was not guilty of
attempted murder. However, counsel conceded the People met the burden to prove
count 10.

“What’s not at issue is Count 10, possession of the methamphetamine at the
jail. That’s on your verdict form. That’s page 31. That’s the last page.
You’re going to go to that page and vote guilty because all of the elements
were proven…. [¶] I’m conceding this because Deputy De La Huerta said
yeah, I searched him and found the meth. Okay, there you go.”
Defense counsel acknowledged that while Deputy De La Huerta testified that the
jail was using a difference entrance to the booking area at the time of defendant’s arrest,
there were warning signs by the entrance doors that were used by defendant when he was
escorted into the jail.
Verdicts
On October 1, 2019, after a jury trial, defendant was convicted of counts 4 and 5,
assault with a deadly weapon on Sergeant Gonzalez and Officer Archuleta; counts 7
through 9, felony resisting Gonzalez, Archuleta, and Officer Barker, with the attached
personal use enhancements found true; and count 10, possession of a controlled substance
in jail.
The jury was unable to reach verdicts on counts 1 through 3, attempted murder of
the three officers, and count 6, assault with a deadly weapon on Officer Barker. The
court declared mistrials on those counts and later granted the prosecution’s motion to
dismiss these charges “contingent on the conviction and the sentencing remaining in full
force and effect.”
Sentencing
On October 30, 2019, the court sentenced defendant to an aggregate term of six
years four months in prison as follows: the lower term of three years for count 4, assault
with a deadly weapon on a peace officer, plus consecutive sentences (one-third the

13.
midterms) of 16 months for count 5, assault with a deadly weapon on a peace officer;
eight months for count 9, felony resisting, with four months for the attached personal use
enhancement; and one year for count 10, possession of a controlled substance.
The court sentenced defendant to 16 months for each of counts 7 and 8, felony
resisting, plus one year for the attached personal use enhancements. The court stated the
two counts were identical, and stayed the terms imposed pursuant to section 654 without
making further findings.
The court imposed a $300 restitution fine (§ 1202.4, subd. (b)), stayed the parole
revocation fine in the same amount (§ 1202.45), and ordered victim restitution in an
amount to be determined (§ 1202.4, subd. (f)). It also imposed court operations
assessments of $240 (§ 1465.8) and criminal conviction assessments of $180 (Gov. Code,
§ 70373).
On October 31, 2019, defendant filed a notice of appeal.
DISCUSSION
I. Elements and Instruction for Count 10
In count 10, defendant was charged and convicted of knowing possession of a
controlled substance within a penal institution in violation of section 4573.6, based on the
methamphetamine found in his pocket during the booking search. “To prove a violation
of section 4573.6, the prosecution ha[s] to show that defendant possessed
methamphetamine in the jail; defendant knew he possessed the methamphetamine;
defendant knew that the methamphetamine was a controlled substance; and that the
methamphetamine was in a usable amount.” (People v. Berg (2018) 23 Cal.App.5th 959,
964 (Berg).) As explained above, defense counsel conceded the People had met the
burden of proof as to this count in closing argument.
On appeal, defendant contends his conviction in count 10 must be reversed
because the court failed to instruct the jury on an alleged element of the offense – that the

14.
People were purportedly required to separately prove “that [defendant] knew he was in a
penal institution or on the grounds of a penal institution.”
In making this argument, defendant acknowledges that the word “knowingly,” as
used in section 4573.6, has never been interpreted to require the People to prove the
perpetrator knew he was in a penal institution. Instead, defendant argues such an
interpretation is supported by the legislative history of the 1970 amendment to section
4573.6.6
Defendant argues the court had a sua sponte duty to modify the pattern instruction
to include this element, and the omission of this language from the instruction was
prejudicial because the jury “could have concluded there was insufficient evidence that
when the methamphetamine was seized from [defendant], he knew he had been taken
from the hospital to a jail,” there was no evidence defendant noticed the sign posted
outside the entrance to the booking area, or he had the ability to read the English or
Spanish warnings.
Defendant argues, to the extent defense counsel may have forfeited the issue or
invited the error by failing to object to the instruction or conceding his guilt in closing
argument, he was ineffective, and the error was prejudicial for the same reasons.
A. Section 4573.6
We begin with the current provisions of section 4573.6, which consists of two
subdivisions and states in full:

“(a) Any person who knowingly has in his or her possession in any
state prison, prison road camp, prison forestry camp, or other prison camp
or prison farm or any place where prisoners of the state are located under

6 While this appeal was pending, defendant requested this court to take judicial
notice of the legislative history of the 1970 amendments to section 4573.6, as enacted by
Stats. 1970, c. 848, §3 (1970 Reg. Session) (Sen. Bill No. 846). The People did not
object.
We therefore grant defendant’s request and take judicial notice of certain
documents pertaining the legislative history, that he filed as exhibits to his judicial notice
request.
15.
 the custody of prison officials, officers, or employees, or in any county, city
and county, or city jail, road camp, farm, or any place or institution, where
prisoners or inmates are being held under the custody of any sheriff, chief
of police, peace officer, probation officer, or employees, or within the
grounds belonging to any jail, road camp, farm, place or institution, any
controlled substances, 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 controlled substances, without being
authorized to so possess the same by the rules of the Department of
Corrections, rules of the prison or jail, institution, camp, farm or place, or
by the specific authorization of the warden, superintendent, jailer, or other
person in charge of the prison, jail, institution, camp, farm or place, is
guilty of a felony punishable by imprisonment pursuant to subdivision (h)
of Section 1170 for two, three, or four years.

“(b) 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.” (Italics added.)
Section 4573.6 is “part of a larger [statutory] scheme regulating crimes in prison
and jail ….” (People v. Gastello (2010) 49 Cal.4th 395, 397.) “Section 4573.6 is related
to, and to be construed together with … sections 4573 and 4573.5 [and other statutes],
which prohibit bringing or sending drugs or drug paraphernalia into a prison or jail.”
(People v. Gutierrez (1997) 52 Cal.App.4th 380, 386 (Gutierrez).) “These statutes,
which target the possession rather than the consumption of unauthorized drugs in prison,
‘flow from the assumption that drugs … and other contraband promote disruptive and
violent acts in custody, including gang involvement in the drug trade. Hence, these
provisions are viewed as “ ‘prophylactic’ ” measures that attack the “ ‘very presence’ ” of
such items in the penal system.’ ” (People v. Raybon (2021) 11 Cal.5th 1056, 1063;
People v. Low (2010) 49 Cal.4th 372, 382, 388 (Low).)
“Possession under section 4573.6 requires that the state prove beyond a reasonable
doubt the standard elements of possession found in the Health and Safety Code.
[Citation.] Thus, the elements for a section 4573.6 violation are (1) unlawfully exercising
control over a controlled substance, (2) having knowledge of the substance’s presence,

16.
(3) having knowledge of the substance’s nature as a controlled substance, and
(4) possessing the substance in an amount sufficient to be used as a controlled
substance.” (People v. Polk (2019) 36 Cal.App.5th 340, 349; Berg, supra, 23
Cal.App.5th at p. 964.)
Section 4573.6 defines a general intent crime. (Berg, supra, 23 Cal.App.5th at
p. 967.) The statute describes “a particular act – possession of a controlled substance in
jail – without referring to any intent to do a further act.” (Ibid.) Section 4573.6
“prohibits possession, not use; it is … concerned with the potential of the item in
question.” (Gutierrez, supra, 52 Cal.App.4th at pp. 386–387.) It does not require that the
defendant have the specific intent to commit an act or scheme “over and above the
knowledge component” stated in the statute. (Low, supra, 49 Cal.4th at p. 386.)
“Presumably, the Legislature would have signaled whether a special intent to fulfill such
an unlawful purpose or to cause some adverse effect bore on commission of the offense.”
(Id. at pp. 386–387.) Even assuming a defendant did not intend to use the drugs or
paraphernalia in jail, “its mere presence in the jail pose[s] the threat that some prisoner
would use it ….” (Gutierrez, at p. 387.)
The lack of authorization is an affirmative defense. (People v. George (1994)
30 Cal.App.4th 262, 275.) As we will discuss below, the “posting requirement” stated in
subdivision (b) is not an element of the substantive offense. (Gutierrez, supra,
52 Cal.App.4th at p. 389.)7 A defendant’s voluntary intoxication is not a defense to a
charged violation of section 4573.6 since it states a general intent crime. (Berg, supra, 23
Cal.App.5th at pp. 967–968.)

7 The California Supreme Court has clarified that the 2016 enactment of
Proposition 64, which makes it lawful for persons aged 21 years and older to possess up
to 28.5 grams of cannabis, has not nullified violations of section 4573.6 based on
possession of cannabis in prison. (People v. Raybon, supra, 11 Cal.5th at p. 1060.)
17.
 B. Enactment of Section 4573.6
Defendant asserts that based on the 1970 amendment to section 4573.6, the People
have the burden to prove an additional element to prove a violation of the statute that was
not stated in the pattern instruction or previously held to be an element of the offense:
that he knew he was entering or inside a jail when he possessed a controlled substance.
In order to place defendant’s arguments in context, we must review the statute’s initial
enactment and subsequent amendments.
Section 4573.6 was first enacted in 1949. (Gutierrez, supra, 52 Cal.App.4th at
p. 387.) The original version of the statute stated:

“ ‘Any person having in his possession in any state prison, prison road
camp, prison forestry camp, or other prison camp or prison farm or any
place where prisoners of the State are located under the custody of prison
officials, officers, or employees, or in any county, city and county or city
jail, road camp, farm, or any place or institution, where prisoners or inmates
are being held under the custody of any sheriff, chief of police, peace
officer, probation officer, or employees, or within the grounds belonging to
any such jail, road camp, farm, place or institution, any narcotics, or drugs
in any manner, shape, form, dispenser or container, or alcoholic beverage,
without being authorized to so possess the same by the rules of the
Department of Corrections, rules of the prison or jail, institution, camp,
farm or place, or by the specific authorization of the warden,
superintendent, jailer or other person in charge of the prison, jail,
institution, camp, farm or place, is guilty of a felony.’ ” (People v. Ortiz
(1962) 200 Cal.App.2d 250, 252, italics added; People v. Trout (1955)
137 Cal.App.2d 794, 794–795.)
As originally enacted, section 4573.6 was defined as a “general statute” that was
“operative upon ‘any person’ possessed of narcotics within the limits of the enumerated
institutions, applying to visitors as well as inmates.” (People v. Clark (1966)
241 Cal.App.2d 775, 778; People v. Trout, supra, 137 Cal.App.2d at p. 796.)
Prior to section 4573.6’s enactment, the Legislature enacted section 4573 in 1941,
“which made it a felony to bring into any custodial institution ‘any narcotic, the
possession of which is prohibited by Division 10’ of the Health and Safety Code …
[citation], thus linking the law applying to custodial institutions to the nomenclature of
18.
the general criminal law of drugs.” (People v. Spann (1986) 187 Cal.App.3d 400, 405,
italics added.) When section 4573.6 was enacted, it similarly used “terms which employ
the definitions taken from the controlled substance laws.” (People v. Spann, at p. 408.)
C. The 1970 Amendment and the “Dual Possession Elements”
The original version of the statute enacted in 1949 began: “ ‘Any person having in
his possession ….’ ” (People v. Ortiz, supra, 200 Cal.App.2d at p. 252.) In 1970, the
Legislature amended section 4573.6 for the first time, and deleted “the word ‘having’ and
insert[ed] in its place the words ‘who knowingly has’….” (People v. Carrasco (1981)
118 Cal.App.3d 936, 941 (Carrasco), italics added; § 4573.6, Westlaw Historical and
Statutory Notes.)
After the 1970 amendment, section 4573.6 stated in pertinent part:

“ ‘Any person who knowingly has in his possession in … any county …
road camp, … any narcotics, … without being authorized to so possess the
same by the rules of the … camp, … or by the specific authorization of the
… person in charge of the … camp, … is guilty of a felony.’ ” (Carrasco,
supra, 118 Cal.App.3d at p. 941, italics added in original.)
1. Carrasco
In Carrasco, this court addressed the 1970 amendment to section 4573.6. In that
case, the defendant was an inmate in a county road camp, returned from work furlough,
changed his clothes, and was then searched and found in possession of heroin under his
clothing. His defense was the searching officer had a vendetta against him, and he did
not know the drugs were in his clothes. (Carrasco, supra, 118 Cal.App.3d at p. 939.)
The defendant was charged and convicted of violating section 4573.6, as amended
in 1970. The trial court instructed the jury that “ ‘[e]very person who has in his
possession without authorization a controlled substance while in the Tulare County
Correctional Center is guilty of a felony….’ ” (Carrasco, supra, 118 Cal.App.3d at
p. 941, italics added.) The court separately instructed the jury with CALJIC No. 1.21,
that “ ‘knowingly’ … imports only a knowledge of the existence of the facts in question,

19.
when those facts are such as bring the act or omission within the provision of the law.
The word does not require in its meaning any knowledge of the unlawfulness of such acts
or omission.”8 (Carrasco, at pp. 941–942 & fn. 1 [A requirement of knowledge does not
mean that the act must be done with any specific intent].) The court also gave CALJIC
No. 1.24 about possession, that “ ‘[t]he law recognizes two kinds of possession: actual
possession and constructive possession. A person who knowingly has direct physical
control over a thing is then in actual possession of it. [¶] ‘A person who, although not in
actual possession, knowingly has the right of control over a thing, either directly or
through another person or persons, is then in constructive possession of it. [¶] ‘The law
recognizes that one person may have possession alone, or that two or more persons
jointly may share actual or constructive possession.’ ” (Carrasco, at pp. 941–942, fn. 1.)
On appeal in Carrasco, the defendant argued that in light of the 1970 amendment
that added “knowingly” to the statute, the trial court “failed to instruct as to three
elements of possession under section 4573.6: knowledge of the presence of the
substance; knowledge of its nature; and presence of a usable amount.” (Carrasco, supra,
118 Cal.App.3d at p. 941, italics added.) The People asserted the latter two matters were
not elements of the crime, and any instructional errors were harmless. (Ibid.)
Carrasco agreed with the defendant and held the jury should have been instructed
on the “dual possession elements” of knowledge of both the narcotic nature and presence
of the controlled substance. (Carrasco, supra, 118 Cal.App.3d at p. 947.) In reaching
this holding, Carrasco began by noting that the definition of “possession,” within the
meaning of relevant Health and Safety Code sections prohibiting possession of narcotics,
included “the elements that the defendant know of the presence of the substance and,
additionally, know the character of the substance possessed. [Citations.] The question

8As will be discussed below, CALJIC No. 1.21’s definition of “knowingly” is
based on the definition stated in section 7, subdivision (5). (People v. Gregory (1990)
217 Cal.App.3d 665, 681.)
20.
arises whether possession within the meaning of … section 4573.6 includes the same dual
knowledge elements.” (Id. at p. 944, italics added.)

“A cardinal principle of statutory construction is that the Legislature
is presumed to be aware of existing judicial practices and interpretations
when it enacts a statute. [Citation.] A review of the case law under
analogous Health and Safety Code provisions shows that probably as of
1949 and certainly as of 1970, the case law was clear that possession
included the dual knowledge elements, knowledge of the presence and
nature of the substance.

“As Witkin notes: ‘Some of the earlier cases took the extreme
position that the statute did not call for any mental element, and that proof
of possession of a prohibited substance was enough, despite ignorance of its
narcotic character. [Citations.] This view has been repudiated, and the
cases now make it clear that, in applying statutes dealing with prohibited
possession, two kinds of knowledge are requisite and must be proved by the
prosecution: (1) Knowledge of the fact of possession, and (2) knowledge of
the character of the thing possessed.’ ” (Id. at p. 945, italics added.)
Carrasco next reviewed previous interpretations of drug possession laws:

“The watershed case was People v. Winston (1956) 46 Cal.2d 151 …
, where the Supreme Court held that marijuana possession required
knowledge of the ‘narcotic character’ of the thing possessed. The court
held that instruction per former CALJIC No. 703 – apparent predecessor of
CALJIC No. 1.24 which was given in the instant case – ‘was not sufficient
for it did not include the essential element of knowledge of the narcotic
character of the particular object possessed.’ [Citation.] The court
reasoned: ‘While specific intent to violate the law is immaterial to a
conviction for the unlawful possession of a narcotic, knowledge of the
object's narcotic character – that is, “knowledge that the facts exist which
bring the act … within the provisions of [the] code” – is required.
[Citations.]’ [Citation.]

“The Winston court rejected the argument that People v. Gory
[(1946) 28 Cal.2d 450], a 1946 case, should not be construed as requiring
such knowledge: ‘While the Gory case, on its particular facts, did not
require such precise holding to justify reversal of the judgment, such
concept of knowledge is implicit in the discussion of the basic principles
involved .… [¶] Respondent argues that mere conscious possession of an
object, not knowing its true character as a narcotic but honestly believing it
to be an innocuous article, nevertheless comes within the purview of the
narcotic possession law. To this point this language from the Gory case is
21.
 cited, pages 455 [through] 456: “The distinction which must be drawn …
is the distinction between (1) knowledge of the character of the object and
the unlawfulness of possession thereof as embraced within the concept of a
specific intent to violate the law, and (2) knowledge of the presence of the
object as embraced within the concept of ‘physical control with the intent to
exercise such control,’ which constitutes the ‘possession’ denounced by the
statute. It is ‘knowledge’ in the first sense which is mentioned in the
authorities as being immaterial but ‘knowledge’ in the second sense is the
essence of the offense.” This distinction was meant to point out the
difference between defendant’s possession of marijuana with knowledge
that it was in disregard of the law and therefore indicating his specific
intent to violate the law, and defendant’s possession of marijuana knowing
its nature but innocent that its possession constituted a violation of the law.
Thus, it was further said in the Gory case at page 457: “Here the principal
fact relied upon by the prosecution is the finding of marijuana in
defendant’s unlocked box and because of the denial by defendant of
knowledge of its presence there, it was the duty of the trial court, on proper
instructions, to submit to the jury the question as to whether defendant had
knowledge of the presence of marijuana.” ’ ” (Carrasco, supra,
118 Cal.App.3d at p. 946, italics added in original.)
Carrasco then turned to the legislative intent for the 1970 amendment to section
4573.6:

“In 1970 the Legislature amended … section 4573.6 to add ‘knowingly,’
the precise term which the Supreme Court had interpreted in Winston to
require the dual knowledge elements in a drug possession context. The
conclusion is inescapable that at least as of the 1970 amendment, the
Legislature is presumed to have engrafted the dual knowledge concept onto
… section 4573.6.” (Carrasco, supra, 118 Cal.App.3d at p. 946, italics
added.)
Carrasco thus concluded that “principles of statutory construction and legislative
intent” established the 1970 amendment added “the dual knowledge requirement” as
“part of … section 4573.6 possession,” the court had a sua sponte duty to instruct the jury
that the elements of the offense included knowledge of both the nature and presence of
the controlled substance, and the instructions given to the jury were insufficient to
address these elements. (Carrasco, supra, 118 Cal.App.3d at p. 947; id. at pp. 946, 949.)
Carrasco further held the instructional errors were prejudicial because the jury, as it was

22.
instructed, “ ‘was left totally in the dark as to the nature of the intent required, the nature
of the acts required to convict ….’ ”9 (Id. at p. 949.)
D. The 1990 Amendment and the “Posting Requirement”
In 1990, the Legislature again amended section 4573.6. It modified the existing
first paragraph of section 4573.6 that defined the substantive offense, and substituted the
phrase “ ‘the possession of which is prohibited by Division 10 (commencing
with Section 11000) of the Health and Safety Code’ for ‘or drugs in any manner, shape,
form, dispenser or container’, deleted ‘or drugs, or alcoholic beverage’ preceding,
‘without being authorized’, added ‘punishable by imprisonment in the state prison for
two, three, or four years’….” (§ 4573.6, Westlaw Historical and Statutory Notes.) It did
not otherwise amend the definition of the possession offense. (See, e.g., People v.
George, supra, 30 Cal.App.4th at p. 274.)
The 1990 amendment also added a second paragraph to section 4573.6 that was
described as a “posting requirement.” (Gutierrez, supra, 52 Cal.App.4th at p. 389;
Stats. 1990, c. 1580, § 4 (Sen. Bill No. 2683).) The same 1990 legislation also added
posting requirements to similar statutes “which deal generally with bringing, sending or
having drugs in prison or jail.” (Gutierrez, at p. 389.)
In 2011, section 4573.6 was amended to designate the two paragraphs as
subdivisions, without substantive changes to the existing language. In its current form,
subdivision (a) defines the offense, and subdivision (b) defines the “posting requirement”
enacted in 1990. (Stats. 2011, c. 15 (Assem. Bill No. 109), § 492.)
Subdivision (a) thus continues to state the substantive offense: “Any person who
knowingly has in his or her possession in any state prison … or in any county, city and

9 In 1984, section 4573.6 was again amended to substitute the phrase “controlled
substances” for “narcotics,” and did not make any substantive changes to the elements of
the offense. (People v. Isaia (1989) 206 Cal.App.3d 1558, 1560–1561; Norris v. State
Personnel Bd. (1985) 174 Cal.App.3d 393, 397; § 4573.6, Westlaw Historical and
Statutory Notes.)
23.
county, or city jail” any controlled substance or paraphernalia without authorization is
guilty of a felony. (§ 4573.6, subd. (a).)
Subdivision (b) of section 4573.6 states: “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.” (§ 4573.6, subd. (b).)
1. Gutierrez
In Gutierrez, the court rejected the defendant’s argument that subdivision (b)’s
posting requirement was a separate offense, an additional element, or an affirmative
defense to a charge of violating section 4573.6 and held the legislative history did not
support these assertions. Gutierrez explained the Legislature added the posting
requirement because it was “particularly concerned with the fact that drugs were being
brought into prisons by both visitors and correctional personnel, and that it was trying to
provide additional deterrents to importation. It seems reasonable to conclude that the
posting requirement was not intended to alter the substantive elements of the offense (and
particularly not in a way that would make it harder to prove), but rather to provide an
additional deterrent.” (Gutierrez, supra, 52 Cal.App.4th at p. 389, italics added.)
Gutierrez concluded “the provisions defining the substantive offense [of violating
section 4573.6] are in the first paragraph,” subdivision (a), such that “[t]he definition of
the crime is complete in itself. It does not incorporate or refer to the posting provisions in
any way. It neither makes posting an element of the crime, nor lack of posting a
defense.” (Gutierrez, supra, 52 Cal.App.4th at p. 389; see also Low, supra, 49 Cal.4th at
p. 389.) “The Legislature can make posting an element of the crime, and has done so
clearly in other statutes,” but since section 4573.6 lacks appropriate language “stating that
posting is an element of the crime, we hold that it is not.” (Gutierrez, at p. 389; id. at
p. 390.)

24.
 E. Defendant’s Instructional Arguments
Defendant contends the trial court in this case failed to instruct the jury about an
additional element allegedly required to prove a violation of section 4573.6 – that he
“knew he was in a penal institution or on the grounds of a penal institution.” (Italics
added.) Defendant argues this alleged element was created by the 1970 amendment to
section 4573.6 because it added the word “knowingly” to the statute. Defendant argues
the court’s failure to instruct on this element violated his due process rights and was
prejudicial error.
“ ‘In criminal cases, even in the absence of a request, a trial court must instruct on
general principles of law relevant to the issues raised by the evidence and necessary for
the jury’s understanding of the case.’ [Citation.] That duty extends to ‘ “instructions on
the defendant’s theory of the case, including instructions ‘as to defenses “ ‘that the
defendant is relying on … , or if there is substantial evidence supportive of such a
defense and the defense is not inconsistent with the defendant’s theory of the case.’ ” ’ ” ’
[Citation.] But ‘ “when a defendant presents evidence to attempt to negate or rebut the
prosecution’s proof of an element of the offense, a defendant is not presenting a special
defense invoking sua sponte instructional duties. While a court may well have a duty to
give a ‘pinpoint’ instruction relating such evidence to the elements of the offense and to
the jury’s duty to acquit if the evidence produces a reasonable doubt, such ‘pinpoint’
instructions are not required to be given sua sponte and must be given only upon
request.’ ” (People v. Anderson (2011) 51 Cal.4th 989, 996–997, italics omitted.)
We find the jury was correctly instructed with CALCRIM No. 2748 on the
elements of violating section 4573.6: that the People had the burden to prove (1) the
defendant possessed a controlled substance in a penal institution or on the grounds of a
penal institution; (2) the defendant knew of the controlled substance’s presence; (3) the
defendant knew of the substance’s nature or character as a controlled substance; (4) the
controlled substance was methamphetamine; and (5) the controlled substance was a

25.
usable amount. (Italics added.) As will be discussed below, defense counsel did not
object to this instruction or request a pinpoint instruction on any particular issue.
1. The 1970 Amendment
Defendant asserts the legislative intent behind the 1970 amendment supports his
interpretation about the alleged additional element required to prove a violation of
section 4573.6. This court has granted defendant’s request to take judicial notice of
certain documents regarding the history of the 1970 amendment in support of his
arguments.
“ ‘Under settled canons of statutory construction, in construing a statute we
ascertain the Legislature’s intent in order to effectuate the law’s purpose. [Citation.] We
must look to the statute’s words and give them their usual and ordinary meaning.
[Citation.] The statute’s plain meaning controls the court’s interpretation unless its words
are ambiguous.’ [Citation.] If the words in the statute do not, by themselves, provide a
reliable indicator of legislative intent, ‘[s]tatutory ambiguities often may be resolved by
examining the context in which the language appears and adopting the construction
which best serves to harmonize the statute internally and with related statutes.’ ” (People
v. Gonzalez (2008) 43 Cal.4th 1118, 1125–1126.) “If the statute is ambiguous, we may
consider a variety of extrinsic aids, including legislative history, the statute’s purpose,
and public policy.” (Id. at p. 1126; Grassi v. Superior Court (2021) 73 Cal.App.5th 283,
290–291.)
As explained above, the 1970 amendment added the word “knowingly” to
section 4573.6 so that it now states: “Any person who knowingly has in his or her
possession in any … jail … any controlled substances … without being authorized to so
possess the same is guilty of a felony….” (Italics added.)
The 1970 amendment was enacted by Senate Bill No. 846. The bill’s Legislative
Counsel’s Digest stated it would amend section 4573.6, and the companion prohibitions
in sections 4573 and 4573.5, as follows:

26.
 “Extends felony prohibitions, relating to narcotics or drugs other than
narcotics being brought into or possessed in specified custodial facilities or
grounds thereof, to such possession or bringing of any device, contrivance,
instrument or paraphernalia intended to be used for unlawfully injecting or
consuming narcotics or drugs other than narcotics. Requires that such
possession or bringing be done knowingly.”10
This statement of legislative intent is consistent with the extensive analysis in
Carrasco, set forth above, that held “principles of statutory construction and legislative
intent” showed the 1970 amendment that added the word “knowingly” addressed “the
dual knowledge requirement” as “part of … section 4573.6 possession,” such that the
jury must be instructed that the elements of the offense included defendant’s knowledge
of both the nature and presence of the controlled substance. (Carrasco, supra,
118 Cal.App.3d at p. 947; id. at pp. 946, 949.) There is no evidence that the Legislature’s
intent behind the 1970 amendment included another knowledge requirement as suggested
by defendant. To hold otherwise would engraft an additional element to the offense that
is not supported by the legislative intent for the 1970 amendment, and we decline to
rewrite the statute. (See, e.g., Low, supra, 49 Cal.4th at p. 387; Gutierrez, supra, 52
Cal.App.4th at pp. 389–390.)
2. Section 7
Defendant next argues that when the 1970 amendment added the word
“knowingly” to section 4573.6, that word was already defined in section 7,
subdivision (5), and the same definition of that word must be applied to how it is used in
section 4573.6.
Section 7, entitled “Words and Phrases,” states definitions for certain terms as
used in the Penal Code, and that such words and phrases “have in this code the

10 Defendant submitted three documents with his judicial notice request:
(1) Senate Bill No. 846 with the Legislative Counsel’s Digest; (2) the enacted bill
(Stats. 1970, c. 848, pp. 1580–1581); and (3) the “Final Calendar of Legislative
Business” showing the bill’s procedural history and that it was signed into law. The other
two documents do not contain any further discussion about the legislative intent behind
the bill.
27.
signification attached to them in this section, unless otherwise apparent from the
context.” (§ 7.) Defendant relies on section 7, subdivision (5), that states: “The word
‘knowingly’ imports only a knowledge that the facts exist which bring the act or omission
within the provisions of this code. It does not require any knowledge of the unlawfulness
of such act or omission.” (§ 7, subd. (5), italics added.)
Defendant asserts that based upon the italicized definitional language in section 7,
subdivision (5), the 1970 amendment that added “knowingly” to section 4573.6 should be
recognized as consistent with this definition and “as requiring proof that when a
defendant possessed the controlled substance, he knew he was in a penal institution or on
the grounds of a penal institution.” (Italics added.)
The rules of construction enunciated in section 7 are “no mere rubric[s]” but the
law. (People v. Jones (1988) 46 Cal.3d 585, 593.) Section 7, subdivision (16), however,
cautions that “[w]ords and phrases must be construed according to the context and the
approved usage of the language; but technical words and phrases, and such others as may
have acquired a peculiar and appropriate meaning in law, must be construed according to
such peculiar and appropriate meaning.” (§ 7, subd. (16); People v. Rodriguez (2012)
55 Cal.4th 1125, 1132–1133.)11 “Accordingly, we have held that words in a statute
‘ “ ‘should be construed in their statutory context’ ” ’ [citation], and that ‘we may reject a
literal construction that is contrary to the legislative intent apparent in the statute or that
would lead to absurd results’ [citation], or ‘would result in absurd consequences that the
Legislature could not have intended.’ ” (People v. Leiva (2013) 56 Cal.4th. 498, 506,
italics added.) The general principles in section 7 do not state absolute rules, and its
definitions of particular words and phrases are not controlling where it would “lead to an
interpretation that runs counter to both the legislative purpose of the statutory scheme

11The substance of subdivision (16) has appeared in section 7 since the statute
was enacted in 1872, and thus existed when the 1970 amendment to section 4573.6 was
enacted. (People v. Moses (2020) 10 Cal.5th 893, 903.)
28.
and subsequent historical practice.” (People v. Navarro (2007) 40 Cal.4th 668, 680,
italics added; see also People v. Kozlowski (2002) 96 Cal.App.4th 853, 865; People v.
Sekona (1994) 27 Cal.App.4th 443, 453.)
Both section 7, subdivision (16) “and our case law [citation] direct us to construe
words and phrases according to their statutory context. We consider the text in
conjunction with the context and purpose of the statute even where … the statutory
language has a ‘highly technical’ meaning.” (People v. Garcia (2017) 2 Cal.5th 792,
805.) “When … a term has developed a particular meaning in the law, we generally
presume the legislative body used the term in that sense rather than relying on ordinary
usage. ‘It is a well-recognized rule of construction that after the courts have construed
the meaning of any particular word, or expression, and the legislature subsequently
undertakes to use these exact words in the same connection, the presumption is almost
irresistible that it used them in the precise and technical sense which had been placed
upon them by the courts.’ ” (In re Friend (2021) 11 Cal.5th 720, 730; People v. Moses,
supra, 10 Cal.5th at p. 903.) Since a term of art “must be understood as it is defined, not
in its colloquial sense,” the court must assume the Legislature knew the ramifications of
its word choices. (People v. Gonzales (2017) 2 Cal.5th 858, 871 & fn. 12; People v. Paz
(2017) 10 Cal.App.5th 1023, 1034.) Thus, the words and phrases defined in section 7
may be distinct rather than synonymous with statutory language using the same terms.
(People v. Sekona, supra, 27 Cal.App.4th at p. 453.)
As explained above, Carrasco held the 1970 amendment that added “knowingly”
to section 4573.6 was intended to add “the dual knowledge elements in a drug possession
context. The conclusion is inescapable that at least as of the 1970 amendment, the
Legislature is presumed to have engrafted the dual knowledge concept onto … section
4573.6,” to require proof the defendant knew both of the controlled substance’s presence
and of the substance’s nature or character as a controlled substance. (Carrasco, supra,
118 Cal.App.3d at p. 946, italics added.)

29.
 Defendant asserts the conclusions in Carrasco are not controlling since the court
“did not have occasion to decide whether the term ‘knowingly’ meant that the defendant
had to know he was in a penal institution or on the grounds of a penal institution, as
defendant never raised that issue” in that case. However, Carrasco’s analysis of the
legislative intent behind the 1970 amendment has not been undermined by the statutory
history of which we have taken judicial notice – that “knowingly” was intended to add
the “dual knowledge concept” to section 4573.6, and not subject to a contrary definition
under section 7, subdivision (5).
3. Winston and Gory
Defendant acknowledges the holding in Carrasco, but asserts the opinion still
supports his argument that section 7, subdivision (5)’s definition of “knowingly” must be
applied to section 4573.6, to mean that the court had a sua sponte duty to instruct that the
People had to prove that defendant knew he was in a penal institution when he possessed
methamphetamine.
Defendant’s argument is as follows: Carrasco relied on People v. Winston, supra,
46 Cal.2d at page 159 and Gory, supra, 28 Cal.2d at page 456, and Winston cited to
Gory’s reference to the definition of “knowingly” as stated in section 7, subdivision (5).
Defendant acknowledges that Winston addressed a different statute that previously
prohibited simple possession of marijuana but argues the trial court in this case should
have followed Winston, since it was relied on by Carrasco, and instruct the jury on the
additional element that the People had to prove defendant knew he was in jail when he
possessed methamphetamine.
Carrasco undermines defendant’s argument. While Carrasco cited to both
Winston and Gory, it ultimately held that “[t]he conclusion is inescapable that at least as
of the 1970 amendment, the Legislature is presumed to have engrafted the dual
knowledge concept onto … section 4573.6” since the Legislature added the word
“knowingly,” the “precise term which the Supreme Court had interpreted in Winston to

30.
require the dual knowledge elements in a drug possession context.” (Carrasco, supra,
118 Cal.App.3d at p. 946, italics added.)
More importantly, the trial court in Carrasco instructed the jury with CALJIC
No. 1.21’s definition of “knowingly,” and that instruction was based on the definition
stated in section 7, subdivision (5). (Carrasco, supra, 118 Cal.App.3d at pp. 941–942 &
fn. 1; People v. Gregory, supra, 217 Cal.App.3d at p. 681.) After Carrasco concluded
the 1970 amendment added “the dual knowledge requirement” (Carrasco, at p. 949) as
“part of … section 4573.6 possession,” (ibid.) it further held the instructions that were
given to the jury in that case were insufficient, and the trial court had a sua sponte duty to
instruct that the elements of the offense included knowledge of both the nature and
presence of the controlled substance, and the instructional errors were prejudicial because
the jury “ ‘was left totally in the dark as to the nature of the intent required, the nature of
the acts required to convict ….’ ” (Id. at p. 949.) Carrasco thus rejected any argument
that an instruction based on section 7, subdivision (5) correctly defined the “knowingly”
requirement added to section 4573.6 by the 1970 amendment.
We find further support for this conclusion in Low, supra, 49 Cal.4th 372, where
the court addressed the elements of section 4573, a companion statute to section 4573.6,
that prohibits any person who “knowingly brings or sends into, or knowingly assists in
bringing into, or sending into” any controlled substance or paraphernalia into any penal
institution without authorization. (§ 4573, subd. (a), italics added.) In Low, the
defendant argued that a person could not “ ‘knowingly bring[]’ ” a controlled substance
into a custodial setting under section 4573 “unless he intends to smuggle drugs into jail
for some illicit purpose, such as use or sale,” and the jury should have been instructed
accordingly. (Low, at p. 385.) Low rejected the defendant’s arguments and addressed the
definition of “knowingly” contained in section 7:

“Section 4573 contemplates a culpable mental state, but not the one
defendant describes. As defined in the Penal Code, the term ‘knowingly’
involves ‘only a knowledge that the facts exist which bring the act or

31.
 omission within the [relevant code] provisions.’ (§ 7, par. 5, italics added.)
It ‘does not require any knowledge of the unlawfulness of such act or
omission.’ (Ibid.) This definition – which is consistent with the notion of
general criminal intent – requires the accused to knowingly perform the
proscribed act, but does not involve any intent to commit a further act or
achieve a particular effect. [Citation.]

“[T]he act that must be ‘knowingly’ performed to violate the ‘bring[ing]’
provisions of section 4573 involves entering a prison or jail in the
possession of a controlled substance. In general, the knowing possession of
a controlled substance simply requires an awareness of both its physical
presence and narcotic character. [Citations.]

“Similar principles have been used to describe the mental state
required for certain in-custody offenses that are closely related to
section 4573. (See People v. Carrasco[, supra,] 118 Cal.App.3d [at p.] 947
… [holding trial court erred in not instructing under § 4573.6 that
unauthorized possession of controlled substance in prison or jail requires
‘dual knowledge’ of drug’s presence and nature] ….)

“Nothing in section 4573 or other relevant authority supports
defendant’s view that the crime requires an intent or scheme to smuggle
drugs into jail over and above the knowledge component we have
described. Presumably, the Legislature would have signaled whether a
special intent to fulfill such an unlawful purpose or to cause some adverse
effect bore on commission of the offense. No such language appears in
section 4573. [Citation.] We decline to rewrite the statute.” (Low, supra,
49 Cal.4th at pp. 385–387, some italics added, fn. omitted.)
While Low cited the definition of “knowingly” in section 7, subdivision (5), it still
interpreted the word to mean the dual knowledge requirement as in Carrasco – that it
required the People to prove the defendant knew both the presence and narcotic nature of
the substance at the time of possession.
F. Defendant’s Prejudice Arguments
While we have found the jury was correctly instructed, we briefly review
defendant’s arguments that the alleged instructional error was prejudicial. “[A]n
instructional error that improperly describes or omits an element of an offense …
generally is not a structural defect in the trial mechanism that defies harmless error
review and automatically requires reversal under the federal Constitution. Indeed, the

32.
high court never has held that an erroneous instruction affecting a single element of a
crime will amount to structural error [citation], and the court’s most recent decisions
suggest that such an error, like the vast majority of other constitutional errors, falls within
the broad category of trial error subject to Chapman[12] review.” (People v. Flood (1998)
18 Cal.4th 470, 502–503.) The question then is whether it appears beyond a reasonable
doubt that the instructional error did not contribute to the jury’s verdict. (Id. at p. 504.)
Defendant argues the alleged instructional error was prejudicial because even
though there were bilingual warning signs posted outside the basement door to the
booking area, “[t]here was no evidence confirming that [defendant] saw the signage on
the basement door leading into the [CRF] and that he had the ability to read it.” As
explained in Gutierrez, the posting requirement stated in subdivision (b) of section
4573.6 is not an element of the offense. (Gutierrez, supra, 52 Cal.App.4th at p. 389.)
Gutierrez further rejected the argument raised in that case “that in the absence of a
posting requirement, a defendant’s lack of knowledge that possession of drug
paraphernalia is prohibited would be an affirmative defense, which the defendant would
have the burden of proving. [The defendant] concludes that the posting requirement was
intended to shift this burden of proof; thus, instead of the defendant having the burden of
proving lack of knowledge, the People have the burden of proving posting (i.e.,
constructive knowledge). The flaw in this argument is that, ‘[a]s the old saying goes,
“Ignorance of the law is no excuse.” ’ ” (Ibid., italics added.)
Defendant also raises several prejudice arguments that are wholly speculative,
based on the established fact that before he was taken to the CRF, “he spent time at a
hospital” where he received treatment for the injuries he received during the struggle with
the officers. Defendant argues that if the jurors had been instructed on the alleged
element that it had to find he “knew” he was in a jail, “they could have concluded there

12 Chapman v. California (1967) 386 U.S. 18.

33.
was insufficient evidence that when the methamphetamine was seized from [him], he
knew he had been taken from the hospital to a jail.” (Italics added.) Defendant further
asserts he “could have believed that instead of being booked into the Kern County Jail, he
was actually being taken to a different hospital or to a different part of the same hospital.
The initial booking procedures involved questions from nursing staff that [defendant]
could have mistaken for continued hospital treatment…. [Defendant] could have
mistaken Deputy De La Huerta’s pat-search for a hospital security procedure associated
with his detention and arrest.”
Defendant acknowledges that Deputy De La Huerta admonished him that he could
not bring items into the jail, but asserts “[d]espite that admonition, there was no evidence
that [defendant] ever indicated he heard and understood what Deputy De La Huerta told
him. There was no evidence that [defendant] indicated his hearing was even intact,”
since he had just been treated at the hospital after the officers punched him in the head
and face. Defendant further argues that even if he heard Deputy De La Huerta’s
admonition, “there was no evidence that [he] understood it” since there was no evidence
that defendant spoke English or De La Huerta spoke to defendant in Spanish.
Defendant’s arguments on these points are “wholly speculative” that are “not
proof of actual prejudice” required for a due process violation. (People v. Alexander
(2010) 49 Cal.4th 846, 875; People v. Lewis (2015) 234 Cal.App.4th 203, 213; People v.
Cordova (2015) 62 Cal.4th 104, 120.) His arguments are also refuted by the record.
Sergeant Gonzalez testified that after defendant was finally restrained, Gonzalez told him
“ ‘The fight is over already. Get in the vehicle. You’re going to jail.’ ” Defendant
continued to curse the officers in Spanish, and spit and kicked as they escorted him to a
patrol car. An ambulance arrived at the scene and medical personnel were going to treat
defendant. Gonzalez opened the door to the patrol car, asked defendant if he was okay,
and defendant said yes. “He was talking just fine then. I said, ‘Stop spitting on them so
they can treat your hand. Is that all right?’ He said it was….”

34.
 When the decision was made to take defendant to the hospital for treatment,
Gonzalez “explained to [defendant], ‘[T]he fight is already over. We’ll sit you in the
gurney so they can treat you. Is that okay? I’m going to release your handcuff’ because
he was still handcuffed to the rear. [¶] His hands were behind his back. I told him,
‘We’re going to release the handcuffs. I’ll sit you on the gurney so don’t fight anymore,
okay?’ ” Defendant agreed, complied with instructions, and did not resist as he was
handcuffed to the gurney and placed in the ambulance. Officer Archuleta testified that
defendant was “completely calm” during the ambulance ride.
After he was medically cleared, Officer Barker testified about escorting defendant
into CRF’s basement entrance to the booking area. Barker was closely questioned about
where the warnings signs were posted, and whether he gave defendant sufficient time to
read the signs as they walked into the booking area. Deputy De La Huerta examined the
prosecution’s photographs of the entrance doors and the warning signs, testified that a
different door was used at the time that defendant was booked, but confirmed the
bilingual warning signs were posted outside that door.
While Sergeant Gonzalez thought defendant might be under the influence of a
controlled substance, section 4573.6 is a general intent offense, and defendant’s possible
voluntary intoxication was not an affirmative defense to the charged offense of
possession of methamphetamine in jail. (Berg, supra, 23 Cal.App.5th at pp. 961–962.)
There was no evidence that defendant was in an otherwise altered mental state or lacked
the mental capacity to understand where he was that day or distinguish between being
treated in a hospital and being booked into custody in a jail facility. Defendant’s
speculative arguments do not establish prejudice.
G. Defendant’s Ineffective Assistance Arguments
Defendant argues that to the extent defense counsel may have forfeited review of
his instructional challenge to his conviction in count 10 for violating section 4573.6, by
failing to object to the court’s instruction, that failure to object was prejudicially

35.
ineffective. This court requested the parties to also address the impact of defense
counsel’s decision in closing argument to concede the People had proved the elements of
count 10.
To prevail on an ineffective assistance claim, the defendant “must establish not
only deficient performance, i.e., representation below an objective standard of
reasonableness, but also resultant prejudice.” (People v. Bolin (1998) 18 Cal.4th 297,
333.) “[P]rejudice must be affirmatively proved; the record must demonstrate ‘a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.’ ” (Ibid.)
We cannot ignore the procedural circumstances leading to defendant’s conviction
for violating section 4573.6. Defense counsel was a vigorous advocate for defendant and
extensively cross-examined the officers about the nature and circumstances of the
incident, defendant’s reaction to their presence, the ensuring struggle, the officers’ use of
force, and defendant’s use of the knife. In closing argument, defense counsel argued
defendant was not guilty of the crimes that he allegedly committed against the officers,
particularly the attempted murder and assault charges, and focused on alleged
inconsistencies about the struggle between defendant and the officers, and whether
defendant intended to kill them with the broken knife.
As explained above, defense counsel did not object to CALCRIM No. 2748 on
count 10 and conceded in closing argument the People met the burden to prove count 10.
“What’s not at issue is Count 10, possession of the methamphetamine at the jail. That’s
on your verdict form. That’s page 31. That’s the last page. You’re going to go to that
page and vote guilty because all of the elements were proven…. [¶] I’m conceding this
because Deputy De La Huerta said yeah, I searched him and found the meth. Okay, there
you go.”

36.
 Defendant argues defense counsel’s decision to concede guilt on count 10 further
supports his ineffective assistance arguments, because counsel did not realize that
CALCRIM No. 2748 should have been modified to require the People to prove defendant
knew he was entering a jail. Defendant asserts that given counsel’s alleged instructional
error, counsel had no choice but to concede his guilt in count 10. Defendant further
argues there is no evidence counsel made a deliberate tactical decision to acknowledge
the People proved the elements of count 10 and, even if counsel made such a decision, it
was uninformed and incompetent.
“Reviewing courts defer to counsel’s reasonable tactical decisions in examining a
claim of ineffective assistance of counsel [citation], and there is a ‘strong presumption
that counsel’s conduct falls within the wide range of reasonable professional
assistance.’ ” (People v. Lucas (1995) 12 Cal.4th 415, 436–437.) “Tactical errors are
generally not deemed reversible, and counsel’s decisionmaking must be evaluated in the
context of the available facts. [Citation.] To the extent the record on appeal fails to
disclose why counsel acted or failed to act in the manner challenged, we will affirm the
judgment ‘unless counsel was asked for an explanation and failed to provide one, or
unless there simply could be no satisfactory explanation ....’ ” (People v. Bolin, supra,
18 Cal.4th at p. 333.) Where counsel’s “ ‘trial tactics or strategic reasons for challenged
decisions do not appear on the record, we will not find ineffective assistance of counsel
on appeal unless there could be no conceivable reason for counsel’s acts or omissions.’ ”
(People v. Jones (2003) 29 Cal.4th 1229, 1254.)
We have already rejected defendant’s arguments about the alleged instructional
error. Based on the record before this court, we further reject defendant’s claims of
ineffective assistance. The record suggests several reasons why defense counsel made an
apparent strategic decision to concede in closing argument that the People had met the
burden of proof for count 10, possession of methamphetamine in jail. As already
explained, defendant’s possible voluntary intoxication was not a defense to the charged

37.
violation of section 4573.6, a general intent crime, that prevented any claim that he was
unable to perceive his surroundings because he was under the influence of narcotics.
While the crime did not include a “posting requirement,” defense counsel may have
known defendant could read English and/or Spanish, he was fully aware that Officer
Barker escorted him into a jail, and/or he heard and understood Deputy De La Huerta’s
advisement about not bringing prohibited items into the jail.
The record also suggests defense counsel conceded the People proved count 10 in
an attempt to maintain credibility with the jury and focus its attention on whether the
People proved the more serious charges of attempted murder and assault. “The evidence
presented to the jury virtually forced this concession.” (People v. Merritt (2017)
2 Cal.5th 819, 832.) There is no evidence defendant objected to counsel’s decision to
concede the People had proved count 10. (Cf. McCoy v. Louisiana (2018) __ U.S. __
[138 S.Ct. 1500, 1508]; People v. Lopez (2019) 31 Cal.App.5th 55, 63.)
II. Remand for Resentencing
At the sentencing hearing, the court imposed an aggregate term of six years four
months in prison, and stayed the terms imposed for two counts pursuant to section 654.
“Section 654 prohibits multiple punishment for any single act or omission. If a
single action or course of conduct by a defendant violates multiple laws, ‘the distinct
crimes may be charged in separate counts and may result in multiple verdicts of guilt,
[but] the trial court may impose sentence for only one offense ….’ [Citation.] Until
recently, the law required trial courts to impose sentence ‘under the provision that
provides for the longest potential term of imprisonment.’ [Citation.] In 2021, however,
the Legislature enacted Assembly Bill No. 518 (2021–2022 Reg. Sess.) (Stats. 2021,
ch. 441), which removes the requirement to impose the longest prison term. As the
preamble to the bill explains, it allows ‘an act or omission that is punishable in different
ways by different laws to be punished under either of those provisions.’ ” (People v. Sek
(2022) 74 Cal.App.5th 657, 673.) As a result of the amendments, a court now has

38.
discretion to select the longer or shorter sentence when imposing one term and staying
another pursuant to section 654. (See § 654, subd. (a).)
Defendant contends, and the People agree, that the matter must be remanded for
the court to reconsider its sentence based on the enactment of Assembly Bill No. 518
(2021–2022 Reg. Sess.), and that the amendments apply retroactively to this case since
his sentence was not final when they were enacted. (People v. Sek, supra, 74
Cal.App.5th at p. 673.)
We thus remand the matter for another sentencing hearing.
DISPOSITION
Defendant’s convictions are affirmed. Defendant’s sentence is vacated and the
matter remanded for the court to reconsider the sentence in light of the amendments to
section 654.

POOCHIGIAN, ACTING P. J.
WE CONCUR:

DETJEN, J.

PEÑA, J.

39.