Filed 7/15/26 P. v. Prout 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Yuba)
THE PEOPLE, C102586
Plaintiff and Respondent,
(Super. Ct. No. CRF23-03014)
v.
NICHOLAS RAYMOND PROUT,
Defendant and Appellant.
A jury convicted defendant Nicholas Raymond Prout of two counts of vandalism
(Pen. Code, § 594) as alleged in counts 1 and 2, being under the influence of a controlled
substance (Health & Saf. Code, § 11550, subd. (a)) (statutory section references that
follow are to the Health and Safety Code unless otherwise stated) as alleged in count 3,
and possession of a smoking device (§ 11364, subd. (a)) as alleged in count 4.
On appeal, defendant claims there is insufficient evidence that he possessed a
smoking device and that the trial court incorrectly instructed the jury that “regular
straws” could be used as a smoking device. Defendant also requests remand for
resentencing because the trial court erroneously imposed a one-year sentence for count 3
and because the trial court failed to apply Penal Code section 654 to counts 3 and 4.
Defendant also contends that the trial court’s order that he pay his medical costs or
medical fees while incarcerated is unauthorized.
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We conclude that the trial court erred in imposing a one-year sentence for count 3
and will remand for a full resentencing. On remand, the trial court is instructed to clarify
its order for defendant to pay his medical costs or fees in prison in accordance with this
opinion. The judgment is otherwise affirmed.
FACTS AND HISTORY OF THE PROCEEDINGS
On November 3, 2023, Marysville Police Department Sergeant Ryan Souza was
on patrol when he was called out to an area near a law office and church. Defendant was
in between the two buildings near a courtyard when Sergeant Souza arrived. A rosebush
had been ripped out and scattered around the area. An irrigation line had also been pulled
out of the ground, and the area was flooded with water. Sergeant Souza told defendant,
“you’re ripping [out] people’s bushes,” to which defendant replied, “If I did, it’s my
bush, that’s why I tore the rosebushes out.”
Sergeant Souza was on patrol again a few weeks later when he noticed some
people loitering outside of the Mary Aaron Museum. The museum alarm was going off,
and Sergeant Souza saw defendant rip the electrical meter from the wall near the back of
the building. French doors and a fence had also been damaged. Defendant believed the
museum was his house.
Defendant’s pupils were dilated and his heartrate felt “significantly fast.” He was
also agitated and animated. Sergeant Souza opined that defendant was under the
influence of a “CNS stimulant.”
Sergeant Souza searched defendant and found a broken piece of a
methamphetamine pipe and straws inside of a bag tied to his waist. The pipe piece had
burned residue and “white foam” inside, which led Sergeant Souza to believe the
substance was methamphetamine. The straws also had burnt white residue on them.
Although the pipe was broken, Sergeant Souza said it was possible to use it to ingest
drugs. Asked how the straws were used to ingest methamphetamine, Sergeant Souza
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explained the user “can burn it on an object and boil and use the straw to push against it
to inhale it as a makeshift pipe.”
A jury found defendant guilty of two counts of vandalism (Pen. Code, § 594) as
alleged in counts 1 and 2, being under the influence of a controlled substance (§ 11550,
subd. (a)) as alleged in count 3, and possession of a smoking device (§ 11364, subd. (a))
as alleged in count 4.
In a bifurcated trial, the jury found true that defendant had previously been
convicted of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)). The jury also
found true four aggravating factors under California Rules of Court, rule 4.421(b)(2), (3),
(4), and (5).
Defendant was sentenced to an aggregate determinate sentence of five years, four
months comprised of four years (middle term of two years doubled for the prior strike)
for vandalism as alleged in count 1 (Pen. Code, §§ 667, subd. (e)(1), 1170, subd. (h)); 16
months (one-third the middle term doubled for the strike prior) for vandalism as alleged
in count 2 (Pen. Code, § 667, subd. (e)(1)), and 12 months each for being under the
influence of a controlled substance and for possession of a smoking device as alleged in
counts 3 and 4 those sentences to be run concurrently to each other and concurrently to
the sentences assessed under counts 1 and 2.
As relevant here, defendant was also ordered to pay “medical costs or medical fees
while incarcerated.”
Defendant appeals.
DISCUSSION
I
Possession of a Smoking Device
Defendant raises two issues related to his conviction for possessing a smoking
device. (§ 11364, subd. (a).) First, he argues that insufficient evidence supports the
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conviction because there was neither evidence to establish that the broken pipe could be
used to smoke a controlled substance nor evidence that the “regular” straws he had were
used as smoking devices. According to defendant, Sergeant Souza’s testimony that it
was “possible” to use the broken pipe to smoke methamphetamine was merely a
“supposition” and therefore not enough to establish the illegal nature of the broken pipe.
Defendant also claims that there is a lack of evidence that his straws were actually
used to smoke methamphetamine and, in any event, the “regular straws” he had are
neither designed nor marketed for illegal use, which is required to meet the definition of
“drug paraphernalia” in section 11014.5, subdivision (a).
Section 11364, subdivision (a) criminalizes the possession of “any device,
contrivance, instrument, or paraphernalia used for unlawfully injecting or smoking” a
controlled substance.
This court’s role in reviewing a challenge to the sufficiency of evidence is limited.
(People v. Smith (2005) 37 Cal.4th 733, 738.) When considering a claim of insufficient
evidence, we examine the entire record to assess whether any rational trier of fact could
have found the defendant guilty beyond a reasonable doubt. (People v. Zamudio (2008)
43 Cal.4th 327, 357.) Thus, “we review the evidence in the light most favorable to the
prosecution and presume in support of the judgment the existence of every fact the jury
could reasonably have deduced from the evidence. [Citation.] ‘Conflicts and even
testimony [that] is subject to justifiable suspicion do not justify the reversal of a
judgment, for it is the exclusive province of the trial judge or jury to determine the
credibility of a witness and the truth or falsity of the facts upon which a determination
depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we
look for substantial evidence. [Citation.]’ [Citation.] 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. [Citation.]” (Ibid.)
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Here, defendant had a broken methamphetamine pipe and straws in his bag. There
was burnt white reside on the pipe and the straws. Although the pipe was broken,
Sergeant Souza confirmed it was possible to smoke from it. He also explained that
straws can be used as a “makeshift” pipe.
Based on this evidence, a rational trier of fact could find that either the broken
pipe, the straws, or both were a “device, contrivance, instrument, or paraphernalia used
for unlawfully injecting or smoking … a controlled substance.” (§ 11364, subd. (a).)
II
Instructions
Second, defendant contends that the jury was erroneously instructed with
CALCRIM No. 2410, which sets forth the elements of possession of a smoking device.
Reprising his argument that straws are not drug paraphernalia as defined by section
11364, subdivision (a), defendant concludes that CALCRIM No. 2410 incorrectly
instructed the jury that it could find him guilty of possessing a smoking device by having
“regular straws.” To support his position, defendant focuses on the definition under
section 11014.5, subdivision (a), which defines “drug paraphernalia” as “all equipment,
products, and materials of any kind that are designed for use or marketed for use, in …
injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled
substance….” Because the “regular straws” found on defendant are not marketed and
designed for these purposes, defendant concludes that they do not meet the definition of
drug paraphernalia, and as such, its inclusion in the jury instruction was erroneous. We
disagree.
The definition of “drug paraphernalia” in section 11014.5, subdivision (a), is not
relevant to the question of whether “regular straws” meet the definition of a smoking
device in section 11364, subdivision (a). Indeed, section 11364, subdivision (a)
criminalizes the possession of “any … paraphernalia” used for unlawfully injecting or
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smoking a controlled substance. (Italics added.) Section 11364, subdivision (a), neither
mentions drug paraphernalia nor does it reference section 11014.5, subdivision (a). As
such, section 11014.5, subdivision (a) is not applicable.
In any event, the jury instruction was proper. The jury was instructed using
CALCRIM No. 2410 as follows:
“The defendant is charged in Count 4 with possessing an object that can be used to
unlawfully inject or smoke a controlled substance in violation of Health and Safety Code
section 11364.
“To prove that the defendant is guilty of this crime, the People must prove that:
“1. The defendant unlawfully possessed an object used for unlawfully injecting or
smoking a controlled substance;
“2. The defendant knew of the object’s presence;
“AND
“3. The defendant knew it to be an object used for unlawfully injecting or smoking
a controlled substance.
“A person does not have to actually hold or touch something to possess it. It is
enough if the person has control over it or the right to control it, either personally or
through another person.
“The People allege that the defendant possessed the following items:
methamphetamine pipe and straws. You may not find the defendant guilty unless you all
agree that the People have proved that the defendant possessed at least one of these items
and you all agree on which item he possessed.”
The court properly instructed the jury that the People had alleged defendant had
violated the statute in two ways; by possessing a pipe and possessing straws used to
ingest methamphetamine. The instruction made it clear that which the jury had to find to
satisfy the elements of the crime as to each of the items. The final paragraph of the
instruction did nothing more than tell the jury that, as to the two items alleged, they had
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to find that at least one satisfied the elements of the crime that the court had just set forth
and that the jury had to agree which item or items violated the statute, this latter portion
of the instruction given in order to avoid a claim of lack of unanimity regarding the jury’s
verdict.
There was no error.
III
Sentencing Issues
Defendant contends that the trial court erroneously imposed a one-year sentence
for possessing a smoking device in count 4 and that the trial court should have applied
section 654 to the sentences for counts 3 and 4. As we shall explain, remand for
resentencing is required.
Section 11374 provides that, “[e]very person who violates or fails to comply with
any provision of this division, except one for which a penalty is otherwise in this division
specifically provided, is guilty of a misdemeanor punishable by a fine in a sum not less
than thirty dollars ($30) nor more than five hundred dollars ($500), or by imprisonment
for not less than 15 nor more than 180 days.” (Italics added.) Section 11364 does not
specify a punishment for possession of a smoking device. Therefore, section 11374
applies to defendant’s sentence for count 4.
Consequently, the one-year sentence imposed by the trial court for possessing a
smoking device in count 4 is unauthorized. (People v. Anderson (2010) 50 Cal.4th 19, 26
[a sentence is generally unauthorized when it cannot be lawfully imposed under any
circumstance in a particular case].) A remand for resentencing is therefore required to
allow the trial court to exercise its discretion to impose a sentence for count 4 in
accordance with section 11374.
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On remand, the trial court may reconsider “all components” of defendant’s
sentence, including whether section 654 applies to counts 3 and 4. (People v. Codinha
(2023) 92 Cal.App.5th 976, 994.)
IV
Medical Costs and Fees
The trial court ordered defendant to pay “medical costs or medical fees while
incarcerated.” Defendant contends, and the People agree, that the trial court was not
authorized to require him to pay his medical costs or fees while in prison.
Both parties cite to Penal Code section 5007.5, which prohibits the Secretary of
the Department of Corrections and Rehabilitation (CDCR) from charging a “fee for an
inmate-initiated medical visit of an inmate confined in the state prison.”
We note that the probation report cited section 4011 as the authority for the
medical costs order, but that section applies only to medical care of prisoners while in a
city or county jail and not costs incurred during state level incarceration.
In any event, section 5007.5 has limited applicability to the trial court’s order here.
The statute is narrow insofar as it prohibits CDCR from charging a fee for inmate-
initiated medical visits in prison. The statute does not prohibit requiring a prisoner to pay
any other medical fees or bills that may be charged to him while incarcerated. Therefore,
the parties are incorrect that this statute renders the entire order unauthorized or
erroneous. Instead, the statute prohibits the trial court from ordering defendant to pay
any fees imposed by CDCR for medical visits that he initiates in prison.
On remand, the trial court is instructed to clarify its order requiring defendant to
pay his medical costs and fees in accordance with Penal Code section 5007.5.
DISPOSITION
Defendant’s sentence is vacated, and the matter is remanded for a full
resentencing. On remand, the trial court is instructed to clarify its medical bills and fees
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order in accordance with Penal Code section 5007.5. The judgment is otherwise
affirmed.
/s/
HULL, Acting P. J.
We concur:
/s/
ROBIE, J.
/s/
BOULWARE EURIE, J.
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