People v. Massie CA5

Filed 1/17/23 P. v. Massie 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
F083624
Plaintiff and Respondent,
(Super. Ct. No. BF183483A)
v.

LUIS JESUS MASSIE, OPINION
Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Kern County. John D.
Oglesby, Judge.
David W. Beaudreau, 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, Darren K. Indermill and
Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
 Following a jury trial, defendant Luis Jesus Massie was convicted of receiving a
stolen vehicle, driving or taking another’s vehicle, evading a peace officer, bringing a
controlled substance into jail, and possessing a controlled substance. In this appeal,
defendant challenges only the drug convictions. He contends (1) the evidence was
insufficient to sustain the conviction for bringing a controlled substance into jail, (2) both
drug convictions should be reversed due to either prosecutorial misconduct or ineffective
assistance of trial counsel, and (3) in the alternative, if we uphold the drug convictions,
the case should be remanded for a full resentencing under the new discretion afforded to
the trial court by recent amendments to Penal Code section 654.1 We remand for the trial
court to resentence defendant with the benefit of newly amended section 654. In all other
respects, we affirm.
PROCEDURAL SUMMARY
By second amended information filed on November 1, 2021, the District Attorney
of Kern County charged defendant with two counts of receiving a stolen vehicle (§ 496d,
subd. (a); counts 1 & 2), driving or taking another’s vehicle (Veh. Code, § 10851,
subd. (a); count 3), evading a peace officer (Veh. Code, § 2800.2; count 4), possession of
ammunition as a previous offender (§ 30305, subd. (a)(1); count 5), bringing a controlled
substance into jail (§ 4573; count 6), and misdemeanor possession of a controlled
substance (Health & Saf. Code, § 11350, subd. (a); count 7). The second amended
information further alleged that defendant had suffered a prior “strike” conviction within
the meaning of the “Three Strikes” law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d))
and had committed the felony offenses charged in counts 2 through 6 while on pretrial
release for the felony charge in count 1 (§ 12022.1).
Following a trial, on November 5, 2021, the jury acquitted defendant on count 2
(the second stolen vehicle count) and count 5 (ammunition possession) but found him

1 All further statutory references are to the Penal Code unless otherwise stated.

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guilty on all remaining charges. In a bifurcated proceeding, the trial court found the
strike and pretrial release allegations to be true.
On December 7, 2021, the trial court sentenced defendant to an aggregate term of
15 years and four months in prison as follows: on count 1, eight years; on count 3, two
years, plus a two-year enhancement for commission of the offense while on pretrial
release (§ 12022.1), consecutive to the term on count 1; on count 4, 16 months,
consecutive to the term on count 3; on count 6, two years, consecutive to the term on
count 4; and on count 7, 180 days in jail, stayed pursuant to section 654.
On the same day, defendant filed a notice of appeal.
FACTUAL SUMMARY
Counts 1 through 5 arose from defendant’s arrests for driving stolen vehicles on
two occasions and fleeing from authorities on the latter occasion. Because the facts
related to those counts are not at issue in this appeal, we omit them except as relevant to
the contested convictions on counts 6 and 7, bringing a controlled substance into jail and
possessing a controlled substance, respectively.
Defendant’s arrest underlying count 1 occurred on November 19, 2020, after an
undercover officer observed him starting to drive away in a vehicle that a records check
revealed was stolen. The record reflects that defendant was in custody on the November
2020 stolen vehicle charge from at least December 28, 2020, until February 16, 2021,
when he was released on bail.
A few weeks later, defendant was arrested again after attempting to evade police
in another stolen vehicle. This second arrest, underlying counts 2 through 5, occurred on
the night of March 3, 2021. Bakersfield Police Officer Brock Peterson and his partner
brought defendant to the Kern County jail for booking the same night. Peterson testified
that he followed the below, standard pre-booking procedure with defendant:

“Prior to booking anyone into the jail we always ask them and tell them,
hey, if you have any illegal items or hidden narcotics or contraband on you,

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 let us know now. And if you don’t, if you take it into the jail without
letting us know because they’ll find it, they have scanners, it’s gonna [sic]
be an additional felony.”
Peterson further testified that “[w]hen [he was] at the jail facility on the night in
question with defendant,” he performed a search of defendant and “located a small plastic
bindle of what [he] believed to be heroin” in defendant’s “groin region.” The bindle
contained a single chunk of a dark brown tar-like substance, approximately the size of a
quarter. The substance itself weighed about 6.4 grams, and Peterson testified it was a
useable amount of narcotics.
Peterson booked the bindle into evidence in the Bakersfield Police Department’s
property room that same night. Later testing showed that the substance consisted of
acetylfentanyl and fentanyl, Schedule I and Schedule II controlled substances,
respectively. (See Health & Saf. Code, §§ 11054, subd. (b)(45), 11055, subd. (c)(8).)
The jury heard no testimony about how defendant responded to Peterson’s
contraband warning or what, if anything, defendant said about the bindle of fentanyl
when it came to light.
DISCUSSION
I. Sufficiency of the Evidence
Defendant first contends that there was insufficient evidence to support his
conviction for bringing a controlled substance into jail because there was no showing that
he rejected a clear opportunity to relinquish the contraband before entering the jail. We
conclude that there was substantial evidence to support this conviction.
A. Standard of Review
“In reviewing a challenge to the sufficiency of the evidence under the due process
clause of the Fourteenth Amendment to the United States Constitution and/or the due
process clause of article I, section 15 of the California Constitution, we review the entire
record in the light most favorable to the judgment to determine whether it discloses
substantial evidence—that is, evidence that is reasonable, credible, and of solid value—

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from which a reasonable trier of fact could have found the defendant guilty beyond a
reasonable doubt.” (People v. Cole (2004) 33 Cal.4th 1158, 1212.) “We presume every
fact in support of the judgment the trier of fact could have reasonably deduced from the
evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings,
reversal of the judgment is not warranted simply because the circumstances might also
reasonably be reconciled with a contrary finding.” (People v. Albillar (2010)
51 Cal.4th 47, 60.) “ ‘ “Although it is the duty of the jury to acquit a defendant if it finds
that circumstantial evidence is susceptible of two interpretations, one of which suggests
guilt and the other innocence [citations], it is the jury, not the appellate court which must
be convinced of the defendant’s guilt beyond a reasonable doubt.” ’ ” (People v. Abilez
(2007) 41 Cal.4th 472, 504.) It is well settled that “ ‘[a] reversal for insufficient evidence
“is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient
substantial evidence to support’ ” the jury’s verdict.’ ” (People v. Penunuri (2018)
5 Cal.5th 126, 142.)
B. Relevant Law
Section 4573 “makes it a felony for ‘any person’ to ‘knowingly bring[ ] … into
any county … jail … any controlled substance’ that he is not authorized to possess.”
(People v. Low (2010) 49 Cal.4th 372, 381 (Low), quoting § 4573, subd. (a).) The actus
reus of the crime is bringing a controlled substance into a jail; and the mens rea is the
defendant’s knowledge that he possessed the controlled substance and that the location
was a jail. (See Low, at pp. 381–387; see also CALCRIM No. 2749 [newly added Mar.
2022, accurately reflecting the law as it existed at the time of trial]; cf. People v. Ross
(2008) 162 Cal.App.4th 1184, 1187–1188 [identifying the mens rea and actus reus for
sister statute § 4574, prohibiting bringing deadly weapons into jail].) Section 4573
applies to anyone who “knowingly and voluntarily” brings a controlled substance into a
penal institution without authorization, including arrestees being booked for another

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crime. (People v. Gastello (2010) 49 Cal.4th 395, 397 (Gastello); see Low, at pp. 376,
385–389.)
C. Analysis
Defendant challenges the sufficiency of the evidence only with respect to the actus
reus, disputing that the evidence showed he brought a controlled substance into the jail.
Defendant does not deny that he possessed fentanyl, but he argues that the prosecutor’s
failure to elicit testimony as to the precise circumstances surrounding the fentanyl’s
discovery left the jury to speculate as to whether defendant in fact disclosed the drugs to
Peterson before or during the search at the jail. Defendant emphasizes Low’s
identification of two “critical factors” for the act prohibited by section 4573: “[T]he lack
of any compulsion to bring contraband inside, and the rejection of a clear opportunity to
avoid doing so by voluntarily relinquishing the forbidden object or substance before
entering the premises.” (Low, supra, 49 Cal.4th at p. 384.) Defendant argues that the
evidence presented to the jury was insufficient to show that he rejected a clear
opportunity to relinquish the contraband before entering the jail. The People do not
dispute that Low requires such an opportunity. They argue that the import of Peterson’s
testimony was that he gave defendant the admonishment about disclosing contraband
before defendant was booked into the jail and that defendant failed to disclose the
fentanyl on his person, thereby foregoing his opportunity not to bring in drugs.
1. The Low and Gastello Decisions
In the companion cases of Low and Gastello, decided the same day, the California
Supreme Court addressed, among other things, the theory that section 4573 did not, as a
matter of statutory interpretation, apply to persons arrested for other offenses and then
forcibly brought to jail while in possession of a controlled substance. 2 (Low, supra,

2 The court also addressed and rejected the argument that application of section 4573 in
such circumstances violates arrestees’ Fifth Amendment privilege against self -incrimination by
essentially requiring them to admit to a lesser offense of drug possession to a void violating

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49 Cal.4th at pp. 376, 379–380, 385–389; Gastello, supra, 49 Cal.4th at p. 400.) The
court rejected this theory, viewing it as “immaterial that the defendant was in custody and
not present by choice in jail” when the contraband drugs were found during an initial
booking search. (Gastello, at p. 402; see Low, at p. 386 & fn. 8.) What the court found
essential, however, was ensuring that the act of bringing in the drugs was voluntary and
not “compulsory” or “manufactured” by police. (Low, at pp. 376, 384–385.) Thus, in
Gastello, the court noted that “[t]he critical fact” for ensuring voluntariness “is that an
arrestee has the opportunity to decide whether to purge himself of hidden drugs before
entering jail, or whether to bring them inside and commit a new crime under
section 4573.” (Gastello, at p. 402.) The court similarly stated in Low that “[t]he critical
factors are the lack of any compulsion to bring contraband inside, and the rejection of a
clear opportunity to avoid doing so by voluntarily relinquishing the forbidden object or
substance before entering the premises.” (Low, at p. 384 [concluding that “such
volitional conduct falls within the parameters of section 4573”].)
Thus, the court’s discussion of the “critical” nature of a defendant having an
opportunity to disclose or discard contraband before entering jail came in the context of
deciding that, as a matter of statutory interpretation, section 4573 could apply to
arrestees. Neither Low, Gastello, nor the cases they reference squarely hold—as
defendant seems to argue—that the prosecution must prove, as an implied element of the
offense, that the defendant rejected an opportunity to disclose or discard contraband
before being booked into jail.
Low and Gastello suggest that a defendant could argue section 4573 cannot be
applied (again, as a matter of statutory interpretation) if he or she lacked an opportunity
to disclose or discard the contraband. (See Low, supra, 49 Cal.4th at p. 376 [holding that

section 4573. (Low, supra, 49 Cal.4th at pp. 389–393; Gastello, supra, 49 Cal.4th at p. 403.)
Defendant raises no Fifth Amendment challenge to his section 4573 conviction.

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“under the circumstances of this case,” where the arresting officer gave advance warning
and the defendant denied possession, the defendant was not “immune from prosecution
under section 4573,” given that his act of bringing drugs inside the jail was not
compulsory]; Gastello, supra, 49 Cal.4th at p. 398 [“Under Low, an arrestee’s
‘involuntary’ presence in jail does not negate the elements of the crime or make
prosecution unconstitutional.” (Italics added.)].) The court in Low indicated that the
statute might be inapplicable if a defendant was “forced to bring drugs into jail,” if
“commission of the act was engineered by the police,” or if the defendant “had no choice
but to violate section 4573.” (Low, at p. 385.) However, this reasoning does not
necessarily make it an element of the crime that the prosecution must prove a defendant
rejected an opportunity to relinquish the contraband before entering jail. Indeed, the
court’s very next lines were: The “[d]efendant entered jail in the possession of
methamphetamine that he had previously secreted on his person. Hence, he committed
the act that section 4573 proscribes.” (Ibid.) We further note that the jury was not
instructed that rejection of such an opportunity was part of the prosecution’s burden of
proof—nor is there any indication defendant requested such an instruction.
Because the People do not raise this burden argument, however, we do not here
decide it. Moreover, we recognize that voluntariness is an essential element of any
criminal offense. (See 1 LaFave, Substantive Criminal Law (3d ed. 2018) § 6.1(c),
pp. 572–573 [“criminal liability requires that the activity in question be voluntary”]; In re
David W. (1981) 116 Cal.App.3d 689, 692 [record did not support finding a violation of
§ 647, subd. (f) for being intoxicated in a public place where minor “did not voluntarily
commit” the crime, having been taken from his home onto the sidewalk by police].)
Assuming without deciding that there must be a showing that defendant had the
opportunity to avoid bringing drugs into jail to demonstrate the voluntariness of the actus
reus and support a conviction under section 4573, we conclude that there was sufficient
evidence that defendant was afforded and rejected such an opportunity in this case.

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 2. Opportunity to Relinquish
Defendant argues that the lack of evidence about the circumstances of Peterson’s
contraband admonishment and defendant’s response to it left the jury to speculate that
defendant rejected an opportunity to relinquish the drugs he possessed. Specifically,
defendant asserts a lack of evidence as to (1) when and where the revelatory search
occurred in relation to Peterson’s admonishment and (2) how defendant responded to the
admonishment, i.e., whether he denied possession of contraband, showed officers where
it was, or remained silent. We disagree on both fronts.
First, Peterson’s testimony supported a reasonable inference that the fentanyl came
to light during a search that occurred after Peterson had advised defendant about the risks
of bringing in contraband. Peterson testified that he gave his standard admonishment to
defendant in this case, saying, “[H]ey, if you have any illegal items or hidden narcotics or
contraband on you, let us know now.” It would make no sense for Peterson to give such
an admonishment if the fentanyl bindle already had been discovered on, or disclosed by,
defendant during a search. Thus, the fact that the admonishment was given at all
supports a reasonable inference that it was given before the search.
Peterson’s testimony on cross-examination further supports an inference that he
gave his standard admonishment after taking defendant to the jail:

“[Defense counsel:] And you took Mr.—you took [defendant] to the
jail. Is that correct?

“[Peterson:] Correct, sir.

“[Defense counsel:] Was Officer Otterness with you too?

“[Peterson:] Yes, sir, he was.

“[Defense counsel:] And then you tell them if you have drugs or
something that can cause problems. Kind of spill the beans now, if you
will. Right?

“[Peterson:] Yes.”

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This exchange reinforces a reasonable conclusion that Peterson gave his contraband
admonishment after arriving at the jail with defendant and before the search occurred.
Defendant relatedly argues that there was no evidence of whether the revelatory
search was conducted inside the jail. However, in the same breath, defendant
acknowledges that “the trial evidence proved … that [he] was searched ‘at the jail
facility.’ ” Section 4573 prohibits bringing controlled substances into “any county, city
and county, or city jail, … or within the grounds belonging to the institution.” (§ 4573,
subd. (a), italics added.) Therefore, evidence that the fentanyl was found or disclosed
during a search “at the jail facility” is sufficient to satisfy the location element of
section 4573.
As to defendant’s second argument, there also was sufficient evidence to allow the
jury to reasonably infer that defendant did not take the opportunity to disclose the
fentanyl on his person in response to Peterson’s admonishment. According to defendant,
“the jury could only speculate about whether [he] told officers to search his groin for the
bindle, denied possessing contraband, or remained silent.” However, two key portions of
Peterson’s testimony show otherwise.
First, Peterson’s response to the prosecutor’s initial question about the results of
the search at the jail reasonably conveyed that Peterson discovered the bindle on his own,
without prior direction or disclosure from defendant. When asked “[w]hat, if anything,
was located” during the search at the jail, Peterson responded that he “located” a small
bindle of what he “believed to be” heroin in defendant’s groin region. He also explained
that the reason he believed it to be heroin was “based off of what it looked like.” At the
bare minimum, this testimony supports a reasonable inference that defendant did not
identify the substance to Peterson—i.e., defendant did not say, “I have heroin on me,” or,
“There is a packet of fentanyl in my pants.” Otherwise, Peterson would have had
something other than his personal belief and visual assessment to rely upon in identifying
the substance.

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 Moreover, Peterson’s use of the verb “located” to describe his acquisition of the
bindle—albeit a repetition of the prosecutor’s word choice—also supports a reasonable
inference that defendant did not direct Peterson to the bindle or verbally disclose it to
Peterson before it was revealed. The jury reasonably could have taken Peterson’s
testimony to mean that Peterson discovered the bindle on his own, with no help from
defendant. Typically, one does not “locate” an item whose location is already known to
the searcher. (See People v. Venegas (1998) 18 Cal.4th 47, 80 [“jurors are permitted to
rely on their own common sense and good judgment in evaluating the weight of the
evidence presented to them”].) Thus, the jury reasonably could have concluded that if
defendant had affirmatively disclosed the bindle’s existence to Peterson before the
search, Peterson’s description of acquiring the contraband would have been different.
Second, when the prosecutor later showed Peterson a photograph of the bindle
(People’s exhibit No. 9), Peterson identified it as the bindle he “took off of [defendant].”
The prosecutor then asked: “Would you say that’s a fair and accurate depiction of the
bindle that you removed from [defendant]’s groin area?” And Peterson replied that it
was. This second exchange further supports a reasonable inference that Peterson
discovered the bindle without defendant’s assistance, since “taking” something “off of”
defendant and “removing” something from his person—especially from his groin
region—would be an odd way of describing the scenario if defendant had handed
Peterson the bindle or even directed him to it. This, combined with Peterson’s testimony
that “I located a small plastic bindle” on defendant, provides substantial evidence that
defendant did not disclose the drugs.
The jury therefore had before it evidence strongly supporting a view of the
timeline that added up to a rejection of an opportunity to relinquish the contraband before
completing the booking process: first, defendant was warned to disclose any controlled
substances he had; second, he failed to do so; and third, a controlled substance was found
on him. Therefore, the jury could reasonably conclude that he voluntarily committed the

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act of bringing drugs into a jail. (See Low, supra, 49 Cal.4th at p. 376 [act of bringing
drugs inside was not compulsory where the “arresting officer gave advance warning
about the prohibitions in section 4573, and [the] defendant violated its terms despite
ample opportunity to avoid doing so”]; Gastello, supra, 49 Cal.4th at p. 402 [reinstating
§ 4573 conviction where defendant remained silent when warned about bringing drugs
into jail, because [the] defendant “ha[d] the opportunity to decide whether to purge
himself of hidden drugs before entering jail”]; People v. James (1969) 1 Cal.App.3d 645,
648, 650 [finding violation of sister statute § 4574 where the defendant remained silent
about his pistol during booking “after he had ample time to surrender it to the jailer”].)
Accordingly, there was sufficient evidence to support defendant’s conviction
under section 4573.
II. Prosecutor’s Discussion of Facts Not in Evidence
Defendant next argues that both drug convictions should be reversed due to the
prejudicial effect of the asserted constitutional and state law violations worked by the
prosecutor’s discussion of facts not in evidence during his closing arguments.
A. Additional Background
As mentioned, the jury heard no testimony about how defendant responded to
Peterson’s contraband warning or to the bindle of fentanyl coming to light. As it
happens, the prosecutor could have elicited testimony from Peterson on both subjects,
based on the testimony Peterson gave (before the court only) at a pretrial hearing on
defendant’s unsuccessful motion in limine to exclude certain incriminating statements he
made to Peterson at the jail. However, that testimony was not brought out at trial.
Nevertheless, the prosecutor presented his closing arguments regarding the drug
offenses as though Peterson had testified at trial on those subjects. In discussing count 6,
the prosecutor told the jury that, in response to Peterson’s admonishment, defendant
“didn’t say anything.” The prosecutor then told the jury that Peterson asked defendant

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about the bindle after it came to light and told them that defendant “said, hey, I —I
thought I would get away with it. I did it in the past.” The prosecutor argued:

“That shows knowledge of the fact that [defendant had a] controlled
substance on his person. And it shows that, you know, consciousness of
guilt that he underst[ood] that what he was trying to do was wrong and that
has been proven.”
In discussing count 7 (simple possession), the prosecutor repeated defendant’s statement
not in evidence, telling the jury:

“It was discovered [defendant] had that on his person in his groin area, a
plastic bindle. [D]efendant knew of its presence. How do we know that he
knew of its presence? His own statements. He tells the officer, hey, I
thought I could get it in. I got away with it last time. That’s how we
know.”
Defense counsel did not object to any portion of the prosecutor’s closing arguments.
Defendant urges us to reverse on grounds of prosecutorial misconduct, despite the
lack of objection; or, if we find that claim forfeited, defendant seeks reversal due to
ineffective assistance of counsel for failing to object. The People concede the prosecutor
erred by referring to defendant’s purported jailhouse statements but argue that any claim
of error was forfeited and that the prosecutor’s references did not deprive defendant of
due process or prejudice the outcome of the case.
B. Relevant Law
“Under the federal Constitution, a prosecutor’s behavior deprives a defendant of
his rights ‘when it comprises a pattern of conduct “so egregious that it infects the trial
with such unfairness as to make the conviction a denial of due process.” ’ [Citations.]
Conduct that falls short of that standard ‘may still constitute misconduct under state law
if it involves the use of deceptive or reprehensible methods to persuade the trial court or
the jury.’ ” (People v. Gamache (2010) 48 Cal.4th 347, 370–371.) “To prevail on a
claim of prosecutorial misconduct based on remarks to the jury, the defendant must show
a reasonable likelihood the jury understood or applied the complained -of comments in an

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improper or erroneous manner.” (Id. at p. 371.) “The focus of the inquiry is on the effect
of the prosecutor’s action on the defendant, not on the intent or bad faith of the
prosecutor.” (People v. Hamilton (2009) 45 Cal.4th 863, 920.)
To warrant reversal, of course, the error must also be prejudicial. Errors that
violate federal constitutional rights are prejudicial unless the People “prove beyond a
reasonable doubt that the error complained of did not contribute to the verdict obtained.”
(Chapman v. California (1967) 386 U.S. 18, 24.) “To say that an error did not contribute
to the verdict is … to find that error unimportant in relation to everything else the jury
considered on the issue in question, as revealed in the record.” (Yates v. Evatt (1991) 500
U.S. 391, 403.) Errors under California law are prejudicial when “it is reasonably
probable that a result more favorable to the appealing party would have been reached in
the absence of the error.” (People v. Watson (1956) 46 Cal.2d 818, 836.) A reasonable
probability “does not mean more likely than not, but merely a reasonable chance, more
than an abstract possibility.” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th
704, 715, italics omitted.)
C. Analysis
Assuming the prosecutorial misconduct claim was not forfeited, 3 reversal is not
warranted because the duly admitted evidence of defendant’s guilt was so strong that we
are convinced the prosecutor’s improper discussion of defendant’s purported jailhouse
statements did not contribute to the jury’s findings on counts 6 and 7.
We agree with the parties that the prosecutor erred in his closing arguments. (See
People v. Rodriguez (2020) 9 Cal.5th 474, 480 [“Referring to facts not in evidence is

3 We are willing to assume that this claim is cognizable on appeal because any admonition
to disregard the incriminating statements not in evidence would carry a high likelihood of only
calling more attention to them and a low chance of erasing them from the jury’s mind. (See
People v. Panah (2005) 35 Cal.4th 395, 462 [one of the two futility-based forfeiture exceptions
is that failure to object does not forfeit the claim on appeal if “the admonition would have been
insufficient to cure the harm occasioned by the misconduct”].)

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‘clearly’ misconduct ‘because such statements “tend[ ] to make the prosecutor his own
witness—offering unsworn testimony not subject to cross-examination.” ’ ”].) In
addition, there is a good likelihood that the jury applied the prosecutor’s erroneous
comments in an improper manner because the prosecutor explicitly told the jury that
defendant’s purported jailhouse statements proved the knowledge elements (the mens
rea) for both drug offenses. (See Low, supra, 49 Cal.4th at p. 386 [mental state required
for § 4573 requires no intent or purpose beyond the knowledge required for simple
possession of a controlled substance: “[A]n awareness of both its physical presence and
narcotic character”]; People v. Martin (2001) 25 Cal.4th 1180, 1184 [elements of
unlawful possession].)
The central question is whether the prosecutor’s mistake—and there is no
suggestion it was anything but—was sufficiently prejudicial to require reversal of the
convictions on counts 6 and 7. “ ‘ “Statements of supposed facts not in evidence … are a
highly prejudicial form of misconduct, and a frequent basis for reversal.” ’ ” (People v.
Rodriguez, supra, 9 Cal.5th at p. 480.) As defendant points out, such statements “ ‘can
be “dynamite” to the jury because of the special regard the jury has for the prosecutor.’ ”
(Ibid.) However, in this case, any improper reliance on the prosecutor’s statements was
harmless because the duly admitted evidence of defendant’s culpable mental state was
overwhelming.
Before learning of defendant’s purported incriminating statements, the jury had
before it evidence that “at the jail facility” defendant was carrying in his “groin region” a
plastic baggie containing a “chunk” or rock of fentanyl about the size of a quarter. This
is about as incriminating a set of circumstances as one can imagine when it comes to
proving knowing possession of an illicit substance. No reasonable juror could conclude
that defendant was unaware of a quarter-size rock near his groin—the location of which,
itself, strongly indicates that defendant knew he should not be carrying it and did not
wish for it to be found. (See People v. Tripp (2007) 151 Cal.App.4th 951, 956

15.
[“suspicious conduct indicating a consciousness of guilt” is circumstantial evidence of a
defendant’s knowledge of the presence and nature of the controlled substance].)
Defendant argues that the closing reference to his purported jailhouse statements
improperly “bolstered” the evidence of his knowledge. Even if so, the knowledge
element being bolstered was already resting on a very solid foundation. This convinces
us that, beyond a reasonable doubt, the prosecutor’s improper references did not
contribute to the jury finding the mens rea elements satisfied for counts 6 and 7; and there
was no more than an abstract possibility that any juror would have found these elements
missing but for the prosecutor’s error. (See People v. Sanchez (2014) 228 Cal.App.4th
1517, 1535 [for claims of prosecutorial error, “[o]ur state Supreme Court has repeatedly
found the harmless error standards met when the evidence of guilt is so strong that the
jury would have reached the same verdict regardless of the error”]; People v. Houston
(2012) 54 Cal.4th 1186, 1223 [prosecutor’s error was harmless under either Chapman or
Watson “given the overwhelming evidence of [the] defendant’s guilt”].)
As to count 6, defendant also argues that the prosecutor’s error provided the
“missing factual link” to establish the actus reus of bringing the controlled substance into
jail, by making it explicit that he rejected an opportunity to avoid doing so. For the
reasons discussed above, there was no gap in the evidence as to whether defendant
received and rejected an opportunity to disclose the fentanyl before completing the
booking process. Peterson’s testimony indeed left vague the precise circumstances of
defendant’s opportunity at the jail, but no reasonable juror would question whether the
opportunity existed. (See People v. Collins (2010) 49 Cal.4th 175, 210–211 [prosecutor’s
reference to extrajudicial statement was harmless under any standard where it “added
nothing to the essence of [the witness]’s testimony”].) Moreover, given the lack of any
instruction that the prosecution had to prove rejection of such an opportunity (a
proposition we question as a matter of law), we see no possibility that the jury would fail

16.
to find that defendant brought fentanyl into jail in violation of section 4573 based on the
admitted testimony alone.
Next, defendant argues that the prosecutor’s closing arguments poisoned the jury
as to both counts 6 and 7 by creating a risk that the jury would base its verdicts, in part,
on an improper propensity inference from defendant’s purported reference to having
committed the same crimes in the past. The prosecutor indeed told the jury at two
separate points during his closing arguments that defendant said, “I did it in the past,”
and, “I got away with it last time.” While this might create a risk that the jury would
consider defendant’s purported past conduct as propensity evidence, we are convinced
beyond a reasonable doubt that it did not create a risk that the jury would convict him on
the drug charges primarily based on defendant’s purported history of similar conduct.
As explained in People v. Younger (2000) 84 Cal.App.4th 1360, 1383, on which
defendant relies, a “jury [can] properly weigh … propensity evidence together with …
other evidence to reach an ultimate determination.” What is impermissible is to allow the
jury to make a “direct leap from the defendant’s disposition, over the troubling aspects of
the rest of the evidence, to a guilty verdict.” (Ibid.) That is, it violates due process to
convict simply because a defendant committed a similar offense in the past. (See People
v. Escobar (2000) 82 Cal.App.4th 1085, 1100 [noting that a jury could “properly consider
the prior crimes as only one factor contributing to an ultimate finding of guilt beyond a
reasonable doubt”].) The risk of an impermissible leap is greatest “[i]f the prosecution’s
case is weak, or if the strength of the evidence advanced by the defense closely balances
the prosecution’s evidence.” (Younger, at p. 1383.)
Here, given the strength of the evidence that defendant knowingly brought
fentanyl into the jail, there is little risk that the jury returned a conviction based solely or
inordinately on the prosecutor’s improper reference to defendant’s purported jailhouse
statements. Our harmless error conclusion is reinforced by the fact that the jury here was
instructed on the requirement of proof beyond a reasonable doubt for each element of the

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offenses, the elements of the offenses, their duty to consider all the evidence, their duty to
consider evidence of defendant’s prior statements alongside all the other evidence, and
the difference between evidence and attorney argument. (Cf. People v. Younger, supra,
84 Cal.App.4th at p. 1383 [“The presumption that juries follow the instructions requiring
them to consider all the evidence is a factor tending to support a conclusion” of harmless
error].) To the extent the jury mistook for evidence the prosecutor’s improper closing
reference to defendant’s jailhouse statements of previous misdeeds, there was little to no
risk that the jury relied primarily on defendant’s apparent previous wrongdoing to convict
him on the present charges.
Finally, we reject defendant’s argument that the prosecutor’s conduct was
especially suspect because his discussion of the jailhouse statements effectively
amounted to the introduction of an improperly admitted confession. “ ‘[T]he improper
admission of a confession is much more likely to affect the outcome of a trial than are
other categories of evidence, and thus is much more likely to be prejudicial.’ ” (People v.
Neal (2003) 31 Cal.4th 63, 86.) Even ignoring the obvious procedural differences
between an improperly admitted confession and the closing arguments here, the
prosecutor’s discussion of defendant’s self-incriminating statements not in evidence was,
again, harmless under any standard due to the strength of the properly admitted evidence.
The prosecutor’s description of how defendant told Peterson he thought he could get
away with bringing in drugs did not, in this case, operate “ ‘ “as a kind of evidentiary
bombshell which shatters the defense.” ’ ” (Ibid.) The circumstantial evidence from
Peterson’s testimony already firmly demonstrated that defendant had knowingly secreted
an illicit substance on his person, which Peterson discovered during a search at the jail.
Even accepting defendant’s purported statements as a confession of sorts, our state
Supreme Court has acknowledged “that the erroneous admission of any given confession
‘might be found harmless, for example, … when the defendant was apprehended by the
police in the course of committing the crime.’ ” (Ibid.) This is just such a case.

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 We also gain further assurance from the fact that the jury was repeatedly reminded
that the attorneys’ arguments were not evidence. Both at the start of trial and
immediately before the prosecutor’s closing arguments, the court instructed the jury that
“[n]othing the attorneys say is evidence” and that their “closing arguments” in particular
“are not evidence.” The prosecutor, himself, then reinforced that instruction in his
rebuttal closing argument, stating:

“As His Honor told you, what we say in our opening and our closing
statements and arguments is not evidence.

“You heard the evidence during the People’s case-in-chief.”
When combined with the overwhelming evidence of guilt, these instructions and
disclaimers convince us that the prosecutor’s discussion of facts not in evidence did not
contribute to the jury’s findings on counts 6 and 7. (See People v. Rivera (2019)
7 Cal.5th 306, 335 [prosecutor’s error was harmless under either standard where there
was strong evidence of guilt and the jury was instructed that attorneys’ statements were
not evidence]; People v. Jasso (2012) 211 Cal.App.4th 1354, 1372 [prosecutor’s error
was harmless where there was strong evidence of guilt].)
Although we expect greater care in the preparation of closing arguments, reversal
is not warranted because the prosecutor’s error here was harmless under either the
Chapman or Watson standard.4

4 Having addressed the prosecutorial misconduct claim on its merits, we necessarily reject
defendant’s ineffective assistance claim insofar as he argues that counsel’s failure to object at
trial deprived him of having the misconduct claim heard on appeal. Our holding that the
prosecutor’s error was harmless also defeats defendant’s substantive ineffective assistance claim
because defendant cannot show that the verdicts on counts 6 and 7 would have been different if
trial counsel had requested and received a “curative” admonition. (See People v. Bolin (1998)
18 Cal.4th 297, 333 [ineffective assistance claim requires both deficient performance and
resultant prejudice, meaning, “the record must demonstrate ‘a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different’ ”].)

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III. Resentencing Under Assembly Bill No. 518
Lastly, defendant requests that, in the event we affirm the drug convictions, we
nevertheless vacate his sentence and remand for resentencing based on the new discretion
afforded under section 654, as amended by Assembly Bill No. 518 (2021–2022 Reg.
Sess.) (Assembly Bill 518). The relevant amendment to section 654—which became
effective January 1, 2022, about one month after defendant’s sentencing—would have
allowed the trial court to stay the two-year sentence on the section 4573 conviction rather
than the 180-day sentence on the simple possession conviction. The People agree that we
should remand for resentencing after this ameliorative change in law.
Under section 654, if a defendant’s single action or course of conduct 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.”
(People v. Liu (1996) 46 Cal.App.4th 1119, 1135.) At the time of defendant’s
sentencing, section 654 required trial courts to impose punishment under the offense
carrying “the longest potential term of imprisonment.” (Former § 654, subd. (a).)
Assembly Bill 518 amended section 654 to authorize trial courts instead to punish
covered crimes under any of the applicable sentencing provisions. (See § 654, subd. (a),
as amended by Stats. 2021, ch. 441, § 1.) As amended, section 654 now gives trial courts
discretion to impose and execute a shorter sentence while staying the execution of the
longest sentence. (People v. Mani (2022) 74 Cal.App.5th 343, 379.)
“Because Assembly Bill 518 was enacted while defendant’s [case] was not yet
final and it provides the trial court new discretion to impose a lower sentence, defendant
is entitled to its ameliorative benefit.” (People v. Mani, supra, 74 Cal.App.5th at p. 379;
see In re Estrada (1965) 63 Cal.2d 740, 744–745 [absent evidence of contrary legislative
intent, ameliorative criminal statutes apply to all cases not final when the statute takes
effect].) The parties agree that Assembly Bill 518 applies retroactively to this case,
which is not yet final. (See People v. Jennings (2019) 42 Cal.App.5th 664, 682 [“For

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purposes of the Estrada rule, a judgment is not final so long as courts may provide a
remedy on direct review.”].)
Here, because the drug convictions on counts 6 and 7 arose from a single course of
conduct, section 654 governs their associated sentences. As required by former
section 654 at the time of sentencing, the trial court imposed and executed the sentence
under the conviction with the longest potential prison term—a two-year prison sentence
for count 6, bringing a controlled substance into jail—and stayed the 180-day sentence
for count 7, simple possession, which authorizes a maximum sentence of one year in a
county jail absent certain aggravating prior convictions (see Health & Saf. Code,
§ 11350, subd. (a)).
Although the trial court at sentencing noted several negative aspects of
defendant’s conduct and history and imposed the maximum sentence, the court did not
“clearly indicate” that defendant was undeserving of any leniency. (See People v.
Gutierrez (2014) 58 Cal.4th 1354, 1391.) Because it is possible that the trial court might
have chosen to impose the lighter sentence on count 7 and stay the sentence on count 6
were that an option, we agree with the parties that remand for resentencing is appropriate.
Defendant urges us to direct that the remand be for a full resentencing on all five
counts, not solely for resentencing on counts 6 and 7. The People do not address this
request, and we agree that even though we are not reversing any of defendant’s
convictions or invalidating any portion of his sentence, the resentencing should not be
limited to the counts directly affected by the amendment to section 654. (See People v.
Buycks (2018) 5 Cal.5th 857, 893 [under the “ ‘full resentencing rule,’ ” on remand for
resentencing “ ‘a full resentencing as to all counts is appropriate, so the trial court can
exercise its sentencing discretion in light of … changed circumstances’ ”]; People v.
Jones (2022) 79 Cal.App.5th 37, 45–46 [remanding for full resentencing because the
need to apply amended §§ 654 & 1170 constituted “changed circumstances”]; see also
People v. Burbine (2003) 106 Cal.App.4th 1250, 1257–1258.) We therefore remand for a

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full resentencing with the benefit of the discretion section 654, as amended by Assembly
Bill 518, now affords the trial court.
DISPOSITION
Defendant’s sentence is vacated, and the matter is remanded for a full resentencing
hearing consistent with this decision. The judgment of conviction is otherwise affirmed.

HILL, P. J.
WE CONCUR:

POOCHIGIAN, J.

DETJEN, J.

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