People v. DeHerrera CA1/2 ( 2020 )

Filed 12/17/20 P. v. DeHerrera CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A159508
v.
CHRISTOPHER DEHERRERA, (Del Norte County
Super. Ct. No. CRPB19-5034)
Defendant and Appellant.
Defendant Christopher DeHerrera appeals following a jury trial
convicting him of possession of contraband in prison.
Defendant’s court-appointed counsel has filed a brief asking this court
for an independent review of the record under People v. Wende (1979) 25
Cal. 3d 436. Defendant was informed of his right to file supplemental briefing
and has not filed such a brief. We have reviewed counsel’s brief and
independently reviewed the record, and we find no errors or other issues
requiring further briefing. Accordingly, we affirm.
BACKGROUND
On July 11, 2019, the Del Norte County District Attorney filed a single-
count information charging defendant with possessing a device, contrivance,
or instrument intended to be used for the unlawful injection and consumption
of controlled substances while in Pelican Bay State Prison in violation of
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Penal Code1 section 4573.6, subdivision (a). It was also alleged that
defendant had a prior serious or violent felony conviction (§ 667, subd. (b)-(i))
and served a prior prison term (§ 667.5). On July 25, defendant entered a
plea of not guilty.
The prosecution moved for an order providing for physical restraints of
defendant, defendant objected, and the trial court ordered that defendant be
restrained with leg and waist restraints. The court granted defense counsel’s
request for defendant to be dressed in civilian clothing during the jury trial.
The prosecution filed motions in limine seeking (1) to admit in the case
in chief evidence that defendant previously pleaded guilty at a rules violation
hearing to possession of drug paraphernalia, specifically a hypodermic
syringe and needle possessed in December 2016, (2) to exclude defense
inmate witnesses proffered to discuss prison tattoos,2 and (3) if the inmate
witnesses were not excluded initially, to conduct a hearing under Evidence
Code section 402 (402 hearing) regarding the inmates’ personal knowledge.
The trial court denied the prosecution’s first two motions. The court initially
agreed to a 402 hearing, but during trial, it decided such a hearing was
unnecessary. The prosecutor also asked to exclude any reference to a
urinalysis of defendant and the results, and the court denied this request.
Defense counsel made an oral motion to exclude defendant’s statement
to a nurse that he had injected drugs a week before the incident at issue.
Defense counsel told the court that an officer advised defendant of his
Miranda3 rights and defendant indicated he wished to exercise his right to
1 Further undesignated statutory references are to the Penal Code.
2As will be seen, the defense was that the needle found on defendant’s
person was intended to be used for tattooing, not injecting drugs.
3 Miranda v. Arizona (1966) 384 U.S. 346 (Miranda).
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remain silent. Defendant was then taken to a nurse who asked him about
needle marks, and defendant stated he injected a week earlier. Defense
counsel argued defendant “should have been re-Mirandized at that point.”
The prosecutor responded that when defendant was with the nurse for a
medical examination, he was not “in custody any further than he normally
would have been” and “[t]here [was] no interrogation.” The court indicated
that it would deny the motion, provided the prosecutor established that the
medical exam occurred as she described and was not, for example, conducted
in a holding cage.
A jury trial began September 23, 2019.
Prosecution’s Case
Pelican Bay State Prison correctional officer Derek Trone testified he
conducted a random search of defendant’s cell on January 10, 2019. When
Trone asked defendant if he had anything sharp or any contraband on him,
defendant responded that he had a needle in the front of his boxer shorts. At
that point, Trone placed defendant in handcuffs and took him to the “hobby
shop,” an area separate from the housing unit, which could be secured.
Trone removed an item from a pocket in defendant’s boxers. Based on
his training and experience, Trone believed the item was a “hype kit” for drug
use. He described the components of the item as a needle with a “plastic
overlay . . . like a modified plunger,” some type of fabric used as a filter for
the liquid to be injected, a clear plastic barrel like part of a Bic writing pen,
and some black rubber used as a bulb to draw in and expel fluid. The needle
itself was a hypodermic needle, meaning it was hollow. Trone agreed the
contrivance, “[k]ind of like a turkey baster,” would be considered “an inmate-
manufactured hypodermic syringe and needle.” A hypodermic needle is
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considered a commodity among inmates and can be shared by many inmates
for using drugs.
Trone noticed reddened, raised, and bruised areas on defendant’s arms
“between his forearm and biceps” that appeared to be recent injection sites.
Trone has seen more than 100 “tattoo guns” in Pelican Bay State
Prison. None of them had hypodermic needles. He was not familiar with the
“stick and poke” method of tattooing. In Trone’s experience, the needle used
in a tattoo kit is solid, like a paper clip, not hollow. He testified the item
found on defendant was not consistent with a tattoo gun in that it did not
have a solid needle, there was no ink in the barrel, and it lacked wires and a
platform for a motor.
On cross-examination, Trone testified that prison tattoos are extremely
common in the inmate population even though both possession of tattoo
paraphernalia and the act of tattooing are serious rule violations in the
prison. He did not observe any signs that defendant was under the influence
of a controlled substance the day of the search. Defendant was given a
urinalysis, and Trone was not aware of any discipline resulting from the test.
He was not aware of drugs ever having been found in defendant’s cell.
Officer Eric Burr, an evidence technician, opined that the item found in
defendant’s boxers was an inmate-manufactured hypodermic kit. He has
seen many tattoo guns, and hype kits are different from tattoo guns. He has
never seen a stick and poke tattoo kit in prison. Burr has never seen a
hypodermic needle used in a tattoo kit.
Lu-Anne Cobb, a licensed vocational nurse at Pelican Bay State Prison,
testified that when an inmate is caught with contraband, she exams the
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inmate in the hobby shop4 and fills out a 7219 form. The purpose of the exam
is “to verify the condition or the status of the inmate’s body prior to being
transferred to another unit or returned back to his house.” When conducting
such an exam, she does not know what kind of contraband was found on the
inmate.
Cobb examined defendant on the day his cell was searched and noted
puncture marks on the insides of his arms, which usually indicates
intravenous drug use. She felt defendant’s arms and did not feel anything
raised, which indicated the marks were older injection sites. Cobb testified
she asked defendant when he used last and he responded, “last week was the
last time.”5 As Cobb was leaving the hobby shop, defendant called her over
and told her she did not need to report his statement and said he was
diabetic. Cobb told him he was not, which she knew because she was the
medications nurse for his housing unit and knew which inmates were
diabetic.
On cross-examination, Cobb testified that she did not consider
defendant her patient that day because he “wasn’t requiring medical and
[she] was there to do a custody form.” The purpose of the exam was to
“document injuries or anything unusual.” The 7219 form does not go in the
inmate’s medical file. Defendant was not restrained during the exam, and
4 Cobb testified there is a holding cell about the size of a telephone
booth in the hobby shop, but her examinations do not take place there. There
was no further discussion about defendant’s motion to exclude his statement
to Cobb, but the fact the exam was not in a “cage” presumably satisfied the
court that defendant’ statement to Cobb was admissible.
5Cobb testified it was unusual for an inmate to give a statement as
defendant did. It was very common for inmates to refuse to answer or make
no comment.
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custody staff were present. Cobb testified that if an inmate appeared to be
under the influence of drugs, she probably would not report it in the 7219
form because her purpose in such an exam is “to inspect his body.”
Without objection, evidence was presented of defendant’s prior
convictions in Los Angeles County of grand theft in 1995 and murder in 1998.
Defense
Defense witness George Pineda was in prison for carjacking and
robbery. He testified defendant was his cellmate in January 2019. Pineda
has prison tattoos that were done using two different methods, “[a] motor and
a pick.” He testified a pick tattoo can be done with a “syringe from a needle.”
He considers defendant a good tattoo artist, and he wanted defendant to fix a
tattoo on his leg.6 Pineda never saw defendant use drugs. He testified the
item found in defendant’s boxers could be used to pick tattoos or inject drugs.
Inmate Ignacio Ruis, Jr., has some prison tattoos, and he has seen
others receive tattoos in prison. He described two different methods of prison
tattooing as “machine” and “picking.” Ruis has two tattoos made using the
picking method. He opined the item found in defendant’s boxers would be
“perfect” for picking “because it has a barrel, has the needle, has the binky
[the rubber part at the end] and you can pour the ink in there. It is a pretty
good instrument for tattooing.” Ruis testified that prisoners trade services
for things (toiletries, food) or other services, and tattooing is one of the
services that could be traded. He testified he never used intravenous drugs
and indicated he had never seen a hype kit, so he did not know whether the
item found in defendant’s boxers could be used to inject drugs.
Defense counsel chose not to call his third proposed inmate witness.
6Pineda explained that he did not get a tattoo from defendant because
he (Pineda) left the prison for months for a court case.
6
Before defendant testified, the court ruled that if he did testify, the
prosecutor would be permitted to raise defendant’s prior rule violation for
possession of drug paraphernalia in December 2016 (evidence of which the
prosecution was not allowed to present in its case in chief).
Defendant testified he was 42 years old, he had been incarcerated since
he was 20 years old for murder and grand theft, and he had not been
convicted of any crimes in prison. He has about 25 tattoos; most of them he
got in prison. Tattoo paraphernalia is not allowed in prison, but defendant
testified, “We make our tattoo equipment.” He trades his tattoo services in
the prison underground economy. He estimated he tattooed around 100
prisoners. His specialty is picking. He described the parts of the item found
in his boxers and how he would use it to tattoo.
Defendant testified the item found in his boxers was a tattoo kit he put
together the night before the search and he intended to use it to tattoo his
cellmate Pineda that day. He did not intend the item to be used for injecting
drugs. He submitted to a drug test “with no hesitation.” He was not forced to
tell nurse Cobb that he used drugs a week earlier; he was being honest with
her. Defendant denied telling Cobb not to write down that he used drugs or
that he was diabetic. There were about five correctional officers present
during the medical exam with Cobb. Defendant admitted he had needle
marks on his arms when he saw Cobb. He did not use drugs “that much,” he
was not an addict, and the marks on his arms were not caused by the item
found in his boxers. He testified he has never had a positive drug test in
prison.
On cross-examination, defendant admitted he was a documented
Sureño gang member. He would not say whether Ruis or Pineda was a gang
member. He agreed the item found in his boxers could be used to inject
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drugs. Since 2000, he has had 15 rule violations in prison. He pleaded guilty
to a rule violation for possession of drug paraphernalia based on a
hypodermic needle found in his cell in December 2016. On redirect,
defendant explained he would be found in violation of the rule regardless of
his intended use for the hypodermic needle found in December 2016 and that
he pleaded guilty so he would be treated more leniently.
The prosecution called Lieutenant Mathew Bristow in rebuttal. He
conducts rules violation hearings at Pelican Bay State Prison and testified
about the hearing regarding drug paraphernalia found in defendant’s cell in
December 2016. He confirmed that defendant entered a guilty plea in that
matter. Defendant made no statement and presented no evidence at the
hearing.
On cross-examination, Bristow testified the inmate’s intended use of a
hypodermic needle would not matter.7 He agreed that some hearing officers
may treat an inmate who pleads guilty more leniently. The burden of proof
at a rules violation hearing is preponderance of the evidence.
The prosecution also called a Pelican Bay State Prison correctional
officer who had been a tattoo artist. She testified she was familiar with the
stick and poke method, and a hypodermic needle would not be used for either
stick and poke or machine tattooing. She testified a hollow needle with a
syringe would not work because “if you are to poke the skin with a hype kit
7 It also came out in cross that the matter of the hypodermic needle
found in defendant’s cell in December 2016 was referred to the district
attorney and the resulting criminal case was dismissed “in the furtherance of
justice.” Bristow testified this did not affect the rules violation hearing
because “We have a completely different standard for guilty or not guilty
than the court system has.”
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and even use a plunger, what is going to happen [is] it’s going to blow out the
lines and create a blob.”
Defense counsel and the prosecutor agreed to all the jury instructions.
In his closing, defense counsel argued the prosecution had to prove the
object found in defendant’s boxers was “intended to inject or consume
controlled substances in a penal institution,” but the evidence here was that
defendant made the object with the intent to use it to tattoo.
The jury began deliberations at 5:01 p.m. on September 25, 2019, and
returned a verdict at 6:03 p.m. The jury found defendant guilty as charged
and found the prior allegations true.
The probation officer recommended the middle term of three years for
the section 4573.6 violation, doubled due to the prior “strike” conviction, plus
one year for the prior prison term for a total term of seven years to be served
consecutive to his current sentence. Defense counsel filed a motion to strike
the prior convictions, arguing the trend in the law was to treat personal drug
crimes more leniently. The prosecution filed an opposition to the motion to
strike.
At sentencing on January 23, 2020, the trial court heard argument and
stated it considered defendant’s motion and the opposition. The court found
the circumstances “within the parameters of three strikes” and denied the
motion to strike the murder conviction for sentencing purposes. The court
found the circumstances in aggravation and mitigation balanced out and
imposed the middle term, which was doubled because of the “strike”
conviction. The court struck the prison prior “due to operation of new law.”
The court imposed and stayed a restitution fine of $300 and imposed $70 in
assessments.
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DISCUSSION
We have reviewed the record on appeal for any arguable issues. The
trial court properly denied the motion to suppress defendant’s statement to
Cobb that he had injected a week earlier. (See People v. Andreasen (2013)
214 Cal. App. 4th 70, 87 [“routine or casual communications,” such as routine
booking questions or a question related to medical condition, are excluded
from Miranda “even when a defendant has already received Miranda
warnings and invoked his or her rights”]; People v. Salinas (1982) 131
Cal. App. 3d 925, 937–943 [no Miranda warning required where a doctor took
medical history and there was no evidence the doctor was attempting to
secure evidence as an agent of law enforcement].) Moreover, we discern no
prejudice given that two witnesses testified defendant had marks on his arms
indicating injection sites and defendant’s statement was admissible for
impeachment purposes once defendant chose to testify.8 (People v. Cannata
(2015) 233 Cal. App. 4th 1113, 1121.)
Based on our review of the record, defendant was represented by
competent counsel who acted to protect his rights and interests.
The sentence imposed is authorized by law.
We conclude there are no arguable issues within the meaning of People
v. Wende, supra, 25 Cal. 3d 436.
DISPOSITION
The judgment is affirmed.
8 The defense that defendant did not intend to use the item found in his
boxers to inject drugs would have undoubtedly failed without his testimony
on his subjective intent, given that every witness with knowledge of hype kits
testified that the item could be used to inject drugs.
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_________________________
Miller, J.
WE CONCUR:
_________________________
Richman, Acting P.J.
_________________________
Stewart, J.
A159508, People v. DeHerrera
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