P. v. Ansley
Filed 4/24/13 P. v. Ansley CA3
NOT TO BE PUBLISHED
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE
DISTRICT
(Lassen)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
EDWARD ANSLEY,
Defendant and Appellant.
C070469
(Super. Ct. No.
CH028607)
A jury
found defendant Edward Ansley guilty of possessing
a sharp instrument in a penal institution.
In a bifurcated proceeding, defendant admitted 21 prior strikes.
Sentenced
to a state prison term of 25 years to life consecutive to his current term,
defendant contends that insufficient
evidence supported the verdict and that the trial court erred by
instructing the jury on constructive possession. We shall affirm.
FACTUAL
AND PROCEDURAL BACKGROUND
Around 8:30 a.m. on December 10,
2010, correctional officers at High Desert State Prison, where
defendant was an inmate, were conducting cell searches, which included using a
metal detection wand. Correctional
Officer Stephen Hobbs, on duty as a housing officer, heard a positive
indication from a detection wand employed by his partner as he held it near
defendant’s buttocks. The wanding was
done in the “day room,†an open area far from any metal which could give a
false positive.
Officer
Hobbs escorted defendant, now handcuffed and wearing only white boxer shorts,
to a contraband watch holding cell in a different building.
sides, so that a person inside can be observed from outside, and is so small
that an occupant can only stand, without being able to move any substantial
distance.
found it free of contraband and in good condition. After putting defendant in the cell, Officer
Hobbs recorded his observations of defendant every 15 minutes in a log (offered
in evidence as an exhibit).
Officer
Hobbs remained outside the cell observing defendant for about an hour and
one-half. But the officer’s attention was then diverted (for a period he
estimated on direct testimony as about five minutes) when he had to help other
officers subdue a combative inmate coming out of a nearby cell.
After that
distraction, Officer Hobbs’s attention was drawn back to defendant’s cell by
“[a] very foul odor[,]†“like someone pulled the lid off a septic tank.†The officer spotted a “white, brownish
object†on the floor of the cell. He got
another officer to contact the investigative services unit (ISU) to inspect the
object.
ISU
Officers Rodriguez and Brackett arrived and observed defendant still in the
cell, handcuffed, and wearing white boxer shorts taped at the waist and
legs. Officer Rodriguez spotted the
object on the floor; it was white with brown fecal matter on it which appeared
to be fresh.
After
removing defendant from the cell at 10:40 a.m.,
Officer Rodriguez picked up the object and washed it off. What remained was an outer “sheath†or
“packaging†consisting of transparent plastic wrapped over white paper,
covering a piece of sharpened metal attached to a plastic handle. The object was too wide to have gone through
the wire mesh of the holding cell walls.
According
to Officer Rodriguez, it is common for inmates to conceal weapons in their
rectal cavities after enclosing the weapons in protective sheaths like the one
found here. Officer Rodriguez was aware
that even when placed in holding cells in handcuffs and with their shorts taped
according to protocol, inmates can manipulate weapons out of their rectal
cavities, remove the weapons through their shorts, “dig [them] out through
their waist area in the back area and pull [them] out that way.†Normally, such an event would leave evidence
in the form of “[t]orn shorts, fecal matter on the hands and fecal matter
within the shorts itself [sic].†Officer
Rodriguez did not inspect defendant’s shorts, hands, or shoes, however (which
he admitted he should have done), because he knew that Officer Hobbs had
inspected the cell before putting defendant inside; therefore, he concluded on
that basis that the object on the cell floor came from defendant.
Defendant
did not put on any evidence. His counsel
argued that because the officers’ investigation was “very sloppy,†the
prosecution had failed to prove beyond a reasonable doubt the weapon came from
defendant and had not been on the cell floor “for who knows how many hoursâ€
before it was observed.
DISCUSSION
I
Defendant
contends there was insufficient evidence to support the verdict. He reasons that the jury could have found him
guilty only by inferring: “(a)
[defendant] somehow secreted a sharp metal object inside his rectum before
officers’ arrival; (b) then, while [defendant]’s hands were both handcuffed
behind his back, [defendant] was able to pull out the sharp metal object from
inside his anus without injuring himself sufficiently to bleed enough to
warrant the officers’ attention; (c) [defendant] was able to remove the object
from underneath his clothing without disturbing the tape that created a
virtually sealed envelope out of his shorts; (d) [defendant] somehow managed to
throw or place that object in a corner of the cell, all without making noise or
leaving any trace of evidence, AND; (e) . . . [defendant] was able to
do all this in the brief time Officer Hobbs’[s] attention was diverted by the
other inmate.†According to
defendant: “If not physically
impossible, such a feat is highly improbable in light of the totality of the
evidence.†We are not persuaded.
We review a
claim of insufficient evidence under the substantial evidence standard. We consider the evidence, including the
reasonable inferences therefrom, in the light most favorable to the verdict,
and affirm if a reasonable jury, so construing the evidence, could have
returned that verdict. (
73, 104; People v. Johnson (1980)
26 Cal.3d 557, 578.)
Here,
despite defendant’s tendentious account of the evidence, the inferences he has
set out are not the only reasonable inferences the jury could have drawn from
the physical facts presented.
Officer
Rodriguez’s testimony that inmates have been known to secrete weapons in their
rectums, then surreptitiously remove them, even while under continuous
observation, handcuffed, and with shorts taped, was unrebutted. Therefore, despite defendant’s attempt to
discredit that testimony by repeating the word “somehow,†it constituted
substantial evidence that the “feat†he calls “highly improbable†could be done
and he did it according to the jury.
Defendant’s
assertion that he could not have removed the weapon from his person without
causing injury and bleeding, even though it was protected by a paper and
plastic sheath, is sheer speculation.
Officer Rodriguez’s testimony as to the physical evidence left behind by
this method of removing a concealed weapon did not mention injury or bleeding. Thus, the jury could reasonably infer that
defendant could have committed the charged offense without injuring himself.
Defendant’s
assertion that the jury must have found he “somehow managed to throw or placeâ€
the weapon on the cell floor “without making noise or leaving any trace of
evidence†mischaracterizes the evidence.
There was no evidence that he threw anything, and the prosecutor did not
so argue. There was also no evidence
either that defendant evacuated the weapon “without making noise†or that he
could not have done so silently. (In any
event, the disturbance going on simultaneously could have prevented Officer
Hobbs from hearing any noise made by defendant.) Finally, the evidence was overwhelming that
defendant did not fail to “leav[e] any trace of evidence†when he deposited the
weapon, along with the substance Officer Rodriguez had to rinse off before
inspecting the weapon, on the cell floor.
Defendant’s
claim that it was improbable he could have evacuated the weapon “in the brief
time Officer Hobbs’[s] attention was diverted†makes little sense. All the
evidence suggested that the diversion lasted for several
minutes, which is presumably ample time to do what defendant was alleged to
have done.
To find
instead that the weapon was already in the holding cell when defendant was
placed there, and might have been there for hours, the jury would have had to
reject the following undisputed evidence:
(1) a metal detection wand gave a positive indication when passed near
defendant’s buttocks, with nothing nearby that could have produced a false
positive; (2) Officer Hobbs inspected the holding cell and found it free of
contraband and in good condition before placing defendant inside; (3) Officer
Hobbs continuously observed defendant in the holding cell for at least an hour
and one-half without detecting anything suspicious; (4) after the distraction
that prevented him from observing defendant for a few minutes, he suddenly
perceived an odor “like someone pulled the lid off a septic tankâ€; (5)
immediately afterward, he saw an object on the cell floor; (6) that object
turned out to be a weapon with fecal matter on it; and (7) Officer Rodriguez
observed that the fecal matter was fresh.
In light of that evidence, however improbable defendant’s method of
secreting and removing the weapon might seem to a person unfamiliar with inmate
practices, the conclusion that defendant secreted and removed the weapon by
that method was the only reasonable conclusion to draw. Sufficient evidence supported defendant’s
conviction.
II
Defendant contends the trial
court erred by instructing the jury it could convict based on constructive
possession, a theory of liability which did not fit the facts. Because sufficient evidence supported
defendant’s conviction based on actual possession, and the jury was instructed
to disregard any instruction that did not fit the facts, any possible error in
instructing on constructive possession was harmless. (See People
v. Crew (2003) 31 Cal.4th 822, 849; People v. Jackson (1996) 13 Cal.4th 1164, 1225.)
DISPOSITION
The judgment is affirmed.
ROBIE , J.
We concur:
NICHOLSON , Acting P. J.
BUTZ , J.
name="_ftn1" title="">[1]
Officer Hobbs testified that the
shorts of inmates placed in contraband watch holding cells are normally taped
at the waist and legs, but he could not recall whether defendant’s shorts were
taped.
name="_ftn2" title="">[2]
Photographs of the holding cells,
with a person inside, were offered in evidence as exhibits.
