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Filed 4 / 29 /22 P. v. Yang CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Plaintiff and Respondent,

v. KAI YANG, Defendant and Appellant. C093846 (Super. Ct. No. CF201746)

Following a bench trial, defendant Kai Yang was found guilty of bringing a controlled substance into jail, possessing a controlled substance in jail, misdemeanor possessi o n of a controlled substance, and misdemeanor intoxicat ion in public. On appeal,
he contends his convictions for bringing a contr olled substance into a jail and possessing a controlled substance in jail are irr econcil able with his conviction for being intoxicated in public and insufficient evidence supports his convictions for knowingly bringing a controlled substance into a jail and possess ing a controlled substance in jail

. We affirm, but remand as explained below

.2 FACTUAL AND PROCEDURAL BAC K GROUND In the morning hours of August 21, 2020, Marysville Police Officer Edward Aceves responded to a c all of an “ unwanted subject ” in front of a business. When
Officer Aceves arrived at the business , he encountered defendant, with whom the officer had previous contact s

. Defendant’s belongings were scattered around him such that his belongings impeded use of the sidewalk and the grass area between the sidewalk and the street. Officer Aceves tried to speak to defendant, but defendant “was uncooperative

. Was not listening to [his] verbal commands. Unusual behavior.” Defendant appeared to have something i n his hand, but did not drop the object when told to drop it . Defendant continued to be “uncooperative. He was behaving

-- he was erratic. He was irrational

. . . he was mumbling, repetitive body movements.” Officer Aceves detained defendant
for office r safety reasons and found nothing as a result of a patsearch

. Once detained, Officer Aceves noticed defendant’s eyes were red and watery, and his pupils were constricted. While d efendant spoke English, he also “was speaking another language

. . . . Mumbled. Again, his speech was very repetitive. He was cursing

. . . [Officer Aceves] was not able to understand exactly what he was replying or telling [him] or saying.” Defendant appeared aware of what was going on around him. Based
on defend ant’s conduct, Officer Aceves arrested him for being under the influence of a
controlled substance.
Officer Aceves believed defendant was under the influence of a controlled substance because defendant’s behavior was starkly different from his beha vior wh ile
sober and because Officer Aceves had training and experience in identifying people
under the influence

. I n Officer Aceves’ s interactions with defendant when defendant was sober, defendant did not exhibit repetitive body movements and he could carry a
conversation with Officer Aceves

. At the time of defendant’s arrest, Officer Aceves did not believe defendant was able to care for his own safety. Upon arrest, d efendant did not respond when asked if he was currently in possession of a controlled substan ce.3

At the entrance of the Yuba County J ail , a sign provides: “Any person who brings a controlled substance, alcohol or drug paraphernalia into the jail facility is in felony
violation of [sections] 4573 and 4573.5 of the Penal Code.” 1 Yuba County She riff Deputy Byron Bugarin booked defendant into jail after defendant walked past the sign

. Deputy Bugarin noticed defendant was “a little out of it; but still able to talk , ” although
defendant w as “incoherent.” Deputy Bugarin asked defendant whether “he had anything on him that he was not supposed to [have] or anything that he did not want to bring to the jail; and [defendant] stated no.” When searching defendant, Deputy Bugarin found approximately 5.8 grams of methamphetamine in a cigarette pack on defe ndant’s left leg

. At defendant’s bench trial, he testified he sat on the sidewalk near the business the
afternoon before his arrest because it was hot and he was thirsty. He rested on the sidewalk until the employees of the business left for the night. He decided to sleep in
front of the business overnight because of the safety the security camera offered.
Defendant recalled being arrested and searched by Officer Aceves. Defendant further recalled telling Officer Aceves that he had bee n asleep and was dehydrated and thirsty.
Defendant testified Officer Aceves did not ask him whether he was in possession of a
controlled substance.
Defendant also recalled being taken to the Yuba County Jail, but did not recall seeing a sign warning him against bringing a controlled substance into the facility.
D efendant tes ti f

i ed d uring booking, Deputy Bugarin did not ask him whether he was in possession of a controlled substance ; Deputy Bugarin instead asked only whether he was in possession of needles

. Defendant testified he did not know he was in possession of methamphetamine at the time of his arrest because he did not remember it was in the cigarette pack. It took

1 Further section references are to the Penal Code unless otherwise indicated.4

defendant two months to put the event in perspective to see things more clearly, ev en though everything was still fuzzy. Defendant admitted he was intoxicated and “out of it , ”
which he described as him doing irrational and embarrassing things. Defendant testified
he had previously been convicted of a strike offense

. The court found defendant guilty of bring ing a controlled substance into jail and possessing a controlled substance in jail , as well as found true the strike allegation
attached to these count s . The court found the jail had “the sign posted as required by both statutes. And there is sufficient evidence [defendant] was aware of the physical presence of the contraband. And also of the narcotic character of it. He had the dual knowledge as requ ired by the case law in this matter.” The court further found defendant guilty of misdemeanor possession of a controlled substance and being intoxicated in public

. The court sentenced defendant to the low term of two years, doubled to four years
because of defendant’s prior strike conviction for bringing a controlled substance into jail

. The court imposed the same sentence for possessing a controlled substance in jail
and imposed one year for defendant’s misdemeanor conviction for possessing a
controlle d substance. Both foregoing sentences were stayed pursuant to section 654 . The court further imposed a concurrent sentence of 180 day s for defendant’s conviction for being intoxicated in public. Defendant appeals.
DISCUSSION
I Defendant’s Verdicts Can Be R econcile d
Defendant contends the court delivered irreconcilable verdicts by finding him guilty of being intoxicated in public and also guilty of knowingly bringing a controlled substance into jail and knowingly possessing a controlled substance in jail

. Defendant argues the court’s findings are in conflict because it s finding that defendant was unable to5

care for his safety necessarily negate d its finding defendant had knowledge he possessed
a control led substance. We disagree.
Defendant argues his case is like Novo and Bales , cases in which the courts found
insufficient evidence to support conviction s based on the acquittal of the defendant s on other charges. ( People v. Novo (1936) 12 Cal.App.2d 5 25; People v. Bales (1946) 74 Cal.App.2d 732 .) In Novo , the court concluded the defendant was entitled to have his assault conviction reversed because the jury found him not guilty of first degree burglary, which was premised on a theory the defendant committed an assault during the commission of a burglary . The jury instead found him guilty of second degree burglary, which did not require an assault finding . Because the facts were such that the jury necessarily found defendant d id not commit assault when finding him guilty of second degree burglary, the jury’s assault conviction based on the same facts could not stand. ( Novo , at pp. 52 6

- 529.) In Bales , the court concluded the defendant was entitled to have
his conviction for fo rc i ble rape reversed because the jury found him not guilty of kidnapping, thereby rejecting the only evidence of force presented at trial

. ( Bales , at
p p. 73 2

- 73 3 .) Defendant’s reliance on Novo and Bales is misplaced. The princip al problem with defendan t ’s argument is the trial court did not need to
find defendant unable to care for his safety to find him guilty of being intoxicated in public. For defendant t o be found guilty of being intoxicated in public, the trier of fact
need ed to determine he was either unable to care for his safety or obstructed free use of a sidewalk. (§ 647, subd. (f) ; People v. Lively ( 1992) 10 Cal.App.4th 1364, 1368

- 13 69 .)
Evidence was sufficient to convict defendant on either of these theories based on Officer
Aceves ’ s testimony pertaining to defendant’s behavior and defendant’s placement of
items on the sidewalk

. The finding defendant was intoxicated in public based on his
obstruction of a sidewalk does not necessarily negate the finding defendant knew he possessed methamphetamine when he entered the Yuba County J ail.6

Moreover, even if defendant’s conviction for being intoxicated in public was based on the theory he could not care for his or an other’s safety, that finding is not legally
i rreconcilable with a finding defendant knew he possessed a controlled substance when entering a jail , contrary to defendant’s contention

. To find a defendant is unable to care
for his own safety or the safety of others, the fact finder must consider the totality of the circumstances. ( People v. Lively , supra , 10 Cal.App.4th at pp. 1372

- 1373.) A police
officer ’ s testimony a defendant stagge red, was very unsteady on his feet, slurred his speech, and had bloodshot eyes and a strong odor of an alcoholic beverage on his person
is substantial evidence a violation of section 647, subdivision (f) occurred

. ( In re William
G . (1980) 107 Cal.App.3d 2 10, 214.) S ection s 4573, subdivision (a) and 4573.6, subdivision (a) , make it a felony for any person to knowingly bring into a jail or possess in a jail any controlled substance he is not authorized to possess. The statute s do not require specific inten t to smuggle drugs into jail. ( People v. Low (2010) 49 Cal.4th 372, 386.) Instead, “the act that must be ‘knowingly’ performed .

. . involves entering a prison or jail in the possession of a controlled substance.” ( Ibid .) This “simply requires an awareness of both its physical presence and narcotic character.” ( Ibid .) Comparing these two standards, it is clear a finding the defendant is unable to care for his or another’s safety is not based on a finding the defendant is so incoherent he
lacks a wareness of his surroundings or the content of his possessions. Because the legal findings required for a violation of section 647, subdivision (f) are not irreconcilable with the legal finding s required for violations of section s 4573, subdivision (a) an d 4573.6, subdivision (a), the verdicts can be reconciled and defendant ’ s reliance on Novo and
Bales is misplaced.7 II Sufficient Evidence Supports The Finding Defendant Knew He Brought
A Controlled Substance Into Jail And Possessed A Controlled Substance In Jail
Defendant contends the prosecution’s reliance on the sign outside the jail warning arrestees not to bring controlled sub stances into the jail was insufficient to prove defendant had the requisite knowledge to be guilty of bringing a controlled substance into jail and possessing a controlled substance in jail

. We find sufficient evidence was presented demonstrating defendant’s knowledge. In determining a sufficiency of the evidence claim, “we review the entire record in the light m ost favorable to the judgment to determine whether it contains substantial
evidence

-- that is, evidence that is reasonable, credible, and of solid value

-- from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [ Citation.] 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 si mply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] ‘A reviewing court neither reweighs evidence nor reevaluates a witness ’ s credibility.’ ” ( People v. Albillar (2010) 51 Cal.4th 47, 60.)
In Low and G astello , our Supreme Court held the offense of knowingly bringing narcotics into jail requires only knowledge of the presence and nature of the narcotics and does not require any intent to carry the narcotics into the jail. ( People v. Low (2010) 49 Cal.4th 372, 386 ; People v. Gastello (2010) 49 Cal.4th 395, 402

- 403 .) The language of
section 4573.6 , pr ohibiting the knowing possession of a controlled substance in jail , is materially similar to the bringing a controlled substance into jail offense , and also requires only knowledge of the presence and nature of the narcotic. In Gastello , the defendant pos sessed methamphetamine when he was arrested and transported to jail. ( Gastello , at pp. 398

- 399.) On the way, the transporting officer warned him that8

possession of narcotics in jail would be a felony. ( Id . at p. 399.) Defendant responded, “[Y]es.” ( Ib id .) The methamphetamine was discovered during booking, and his conviction for bringing narcotics into jail was proper. ( Id . at pp. 399, 402

- 403.) The
circumstances in Low were almost identical, but in Low , the transporting officer asked the
defendant i f he had narcotics and he denied having any. ( Low , at p. 377.) Again, the conviction was proper. ( Id . at pp. 375

- 377, 393.) Here, defendant testified he forgot he had put methamphetamine in a cigarette pack and put it in his pants. Through this testimony, d efendant conceded he knew the
substance in the cigarette pack was methamphetamine and he knew he had put it in his pants. This is sufficient to sustain a finding of knowledge ; that is , defendant knew of the presence and nature of a controlled substance on his person. (See People v. Low , supra , 49 Cal.4th at p. 386 .)
Defendant also challenge s the sufficiency of the evidence supporting the inference he brought a controlled substance into the jail on the basis he was never given an opportunity t o relinquish the drug s before entering the jail. Our Supreme Court also touched upon this argument in Low and held, “ To the extent we now conclude that the act prohibited by section 4573 can occur when someone is brought into jail in custody for another crime, this interpretation is consistent with cases deciding what it means to

‘ bring[] ’ contraband into a penal setting in violation of similar statutory prohibitions. (E.g., People v. Ross (2008) 162 Cal.App.4th 1184, 1187

- 1189

. . . [holding that defendant who carried knife in her undergarments, and who denied having it when arrested and booked for assault, violated § 4 574 [, subd. ] (a) despite her claim that she did not voluntarily enter jail or commit affirmative act of bringing weapon inside]; People v.
James (1969) 1 Cal.App.3d 645, 650

. . . [similar conclusion under same statute as to defendant who kept pistol hidde n in his waistband during booking search, and who later gave it to another jail inmate].) The critical factors are the lack of any compulsion to bring contraband inside, and the rejection of a clear opportunity to avoid doing so by9

voluntarily relinquishi ng the forbidden object or substance before entering the premises. ( Ross , supra , 162 Cal.App.4th at p. 1191 [defendant ‘ had no choice whether to go to jail,
but she was afforded the choice not to violate section 4574 ’ ]; James , supra , 1 Cal.App.3d at p. 65 0 [defendant ‘ knowingly possessed a firearm while in jail, after he had ample time to surrender it, ’ such that his ‘ choice about going to jail is irrelevant ’ ].) We agree that such volitional conduct falls within the parameters of section 4573. ” ( People v . Low , supra , 49 Cal.4 th at p. 384.) The record does not support defendant’s argument he was not afforded an opportunity to relinquish the methamphetamine before going to jail . Officer Aceves
testified he asked defendant if he was in possession of a cont rolled substance and defendant did not answer the question. Further, Deputy Bugarin testified he asked defendant during the booking process whether he possessed contraband and defendant
said no. Officer Aceves ’ s and Deputy Bugarin’s testimony is fatal to defendant’s appellate claim of insufficient evidence . (See People v. Young (2005) 34 Cal.4th 1149,
1181 [“u nless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction” ] .) While defendant claimed to have not seen the sign outside the jail, the trial court was free to reject that contention considering the evidence. Officer Aceves testified defendant appeared to be aware of his

surroun dings, as did Deputy Bugarin . Defendant walked past the sign when brought into the jail , and the trial court saw pictures of the sign and the context in which defendant
would have seen it

. In a related argument, defendant contends , to the extent the Pe ople rely on People v. Berg ( 2018 ) 23 Cal.App.5th 959 to argue defendant’s intoxication is irrelevant to his knowledge , Berg was wrongly decided. The People, however, did not rely on Berg when asserting their argument n or did the People argue defendant’s intoxication should be ignored when deciding whether sufficient evidence supports his convictions

. Indeed, even when considering defendant’s intoxication , sufficient evidence supports his10

conviction. D efendant testified he put methamphetamin e in a cigarette pack and then put the pack in his pants

. In essence, d efendant admitted to knowing he possessed a controlled substance. He further testified Officer Aceves never asked him if he possessed a controlled substance and Deputy Bugarin asked h im only whether he possessed needles

. This testimony was contradict ed by Officer Aceves’ s and Deputy Bugarin’s testimony , both of whom testified they separately asked defendant if he was in possession of illegal
substances

. Defendant did not testify he w as so intoxicated he lacked all awareness of his surroundings or failed to understand the questions being asked of him ; instead , he just disagreed about the specific questions posed to him

. The court was free to reject defendant’s testimony as not credible. “ We neither reweigh the evidence nor reevaluate the credibility of witnesses. [Citation.] We presume in support of the judgment the existence of every fact the jury reasonably could ded uce from the evidence. ” ( People v. Jennings (2010) 50 Cal.4th 616, 638

- 639.) Here, it was reasonable for the court to conclude defendant knowingly brought a controlled substance into jail and possessed a controlled substance in jail despite the fact he w as heavily intoxicated at the time of his arrest and booking. Accordingly, sufficient evidence supports defendant’s convictions.
III Remand Is Appropriate At the time defendant was sentenced, former section 654, subdivision (a) provided: “[a]n act or om ission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provisio n.” (Stats. 1997, ch. 410, § 1.) Assembly Bill No. 518 (2021

- 2022 Reg. Sess.), which went into effect January 1, 2022, amended section 654 to allow trial courts to exercise discretion in choosing the count for which it will impose punishment, rather than requiring imposition of the longest potential term of imprisonment. (Stats. 2021, ch. 441, § 1.) Section 654, subdivision (a) now provides:11

“[a]n act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions .

. . .” B ecause defendant’s case is not yet final, he is entitled to the benefits of amended section 654 pursuant to the principles of retroactivity established in Estrada

. ( In re Estrada (1965) 63 Cal.2d 740 ; see People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303 .)
Remand is thus appropriate.
DISPOSITION The case is remanded for the trial court to exercise its discretion in deciding which terms to stay pursuant to section 654 ( as amended by Stats. 2021, ch. 441, § 1). The judgment is otherwise affirmed.

/s/ Robie, Acting P. J.

We concur:

/s/ Hoch, J.

/s/ Krause, J.