Metropolitan News-Enterprise


Wednesday, June 7, 2006


Page 1


Concealing Drug Evidence Not a Proposition 36 Offense—C.A.


By KENNETH OFGANG, Staff Writer/Appellate Courts


Concealing or destroying evidence is not a possessory drug offense for which a defendant is entitled to a probationary sentence that includes drug treatment under Proposition 36, even if the destroyed or concealed evidence related to a drug offense, the Third District Court of Appeal ruled yesterday.

The court upheld Stephen Moniz’s conviction and seven-year prison sentence on charges of transportation and possession of methamphetamine and heroin, possession of drug paraphernalia, unauthorized possession of a hypodermic needle, and destroying or concealing evidence.

The sentence included a four-year term for transporting heroin, plus three one-year enhancements based on prior felony convictions for which Moniz had served prison terms. Sentences on the other charges were stayed or run concurrent.

Traffic Stop

The charges arose from a traffic stop in Yolo County; defendant was the front seat passenger. The concealment count was based on the discovery of several drug-related items, including a sunglasses case containing heroin, between the passenger seat and the center console, and the testimony of the driver, who owned the car, that she had no knowledge of any of those items.

The owner/driver, Danielle Giampappas, had a history of drug use, including methamphetamine but not heroin. The vehicle was stopped because the license tag was expired, and Giampappas testified that at the time, she had just gotten the vehicle out of police impound, to which it was taken after her husband was arrested for a parole violation.

Giampappas originally told the police the drugs were hers. She said the defendant told her to say that, and that she agreed because Moniz had money and promised he would bail her out.

That plan went awry, she explained, after the police arrested both of them. Giampappas agreed to plead guilty to one count of drug possession, for which she received no prison time, and was not required to testify against Moniz as part of the deal.

On appeal, the defense argued that the evidence was insufficient to prove the defendant’s knowledge and possession of the contraband, and alternatively that if he was guilty of concealment, it was a simple possession offense to which Proposition 36 applied.

Trial Judge Upheld

The Court of Appeal, however, agreed with the trial judge that the 2000 initiative requiring that certain drug offenders be given the option of drug treatment rather than jail does not apply when the defendant is convicted of concealing evidence. Superior Court Judge Michael Sweet reasoned that concealment of evidence “is an activity dissimilar [to simple drug possession] because it is an obstruction of justice.”

Justice Vance Raye, writing for the Court of Appeal, agreed, citing an earlier case in which the court held that driving under the influence of a controlled substance was not a possessory offense for purposes of Proposition 36.

The purpose of Penal Code Sec. 135, which makes it a crime to conceal or destroy evidence, “is to prevent the obstruction of justice,” not to suppress the dangers associated with drug use,  Raye explained. He noted that that the Court of Appeal has held that forgery of a prescription is not a Proposition 36 offense, even if the purpose was to obtain drugs for the forger’s personal use, and that possession of a controlled substance while in immediate possession of a firearm has also been held not to qualify as a  “nonviolent drug possession offense.”

In an unpublished  portion of the opinion, Raye concluded that Sweet did not abuse his discretion by denying Moniz’s motion to dismiss the concealment count in the interest of justice, which would have made the defendant eligible for a Proposition 36 sentence.

The trial judge, Raye explained, “agonized” over the motion, held an extensive hearing, and came to the reasonable conclusion that Moniz’s irresponsible behavior, including a history of criminal offenses, not all of which were drug-related; his continued insistence that the drugs he was convicted of possessing were not his; and his inability to show up in court on time made him a poor candidate for treatment.

The case is People v. Moniz, 06 S.O.S. 2891.


Copyright 2006, Metropolitan News Company