Metropolitan News-Enterprise


Tuesday, June 24, 2008


Page 1


Court: Inmate Did Not ‘Possess’ Drugs Where Delivery Averted


By SHERRI M. OKAMOTO, Staff Writer


A prison inmate’s unsuccessful effort to obtain narcotics does not support a finding of possession, the Fourth District Court of Appeal ruled yesterday.

Div. One reasoned that insufficient evidence supported the prison’s disciplinary action against an inmate who was the intended recipient of a heroin-laced post card intercepted by guards for possession of a controlled substance. It granted a writ of habeas corpus directing prison officials to rescind disciplinary action against Erin Rothwell.

That action stemmed from a discovery by a correctional officer working at the mailroom of the Richard J. Donovan Correctional Facility, who noticed that an incoming postcard addressed to Rothwell was in fact two postcards glued together, with a substance secreted between them. Subsequent tests indicated the postcards contained 0.14 grams of heroin.

At a disciplinary hearing, Rothwell was charged with violating California Code of Regulations title 15, Sec. 3016(a) by possessing a controlled substance. The hearing officer found Rothwell guilty and assessed a forfeiture of 151 days of good conduct credit and a loss of family visit and phone privileges.

Following two unsuccessfully administrative appeals, Rothwell petitioned for habeas corpus. San Diego Superior Court Judge Esteban Hernandez denied the petition, determining that “[o]ne can rationally infer that [Rothwell] knew the individual who mailed the heroin” and “that the substance was mailed with [Rothwell’s] knowledge and consent, if not at [Rothwell’s] express request.” 

But that inference did not establish the offense of possession, Justice Joan Irion wrote for the appellate court.

Even assuming that Rothwell had requested the postcard be sent to him, and even under the deferential “some evidence” standard of review for prison disciplinary actions, Irion said,Rothwell was entitled to relief.

Citing People v. Showers (1968) 68 Cal.2d 639, Irion explained that a defendant is deemed to have constructive possession of contraband in the possession of another person when the possessor has the contraband in accordance with the defendant’s direction or consent, but the defendant exercises control over the property.

The fact that a defendant may have induced someone to attempt a delivery of a controlled substance into his possession does not constitute evidence of possession of that substance absent a showing that the defendant was in control of the illicit substance, the justice wrote.

Because prison officials intercepted the heroin before it reached Rothwell or any place that Rothwell controlled or had access to, Irion concluded he did not exercise dominion or control over the heroin, and thus, he did not possess it.

Although Irion noted there was “some evidence” that Rothwell had engaged in some form of misconduct, however, she wrote, there was no evidence that he possessed a controlled substance.

Justice Gilbert Nares joined Irion in her opinion, while Justice Alex C. McDonald concurred in the result only.

The case is In re Rothwell, 08 S.O.S. 3667.


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