June 30, 2007 By Wallin & Klarich

California law is complex. Sometimes something seems so simple that you would think the answer is obvious. However, even legal issues which seem simple may have to wind their way through the entire judicial process before the seemingly simple interpretation of the law is made. By this I mean that sometimes you have to be prepared to “go all the way”.

Most people think that “all the way” means all the way to trial. However, we can see from a recent case decided in the Court of Appeal for the Fifth Appellate District that what the appeals court found simple the trial court got completely wrong.

Defendant Tommy Gastello was convicted of bringing drugs into a jail. The Appellate Court said his case presents one question: Is an accused guilty of bringing drugs into jail if he or she entered the jail only due to being arrested and brought there in custody? The answer has to be no. That would seem obvious – right?! Not to the trial court.

California Penal Code Section 4573 makes it a Felony to bring drugs into a jail or prison facility or to assist in doing so.

Mr. Gastello was stopped for riding his bicycle after dark without having a light.
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Because of his demeanor and the presence of physical indications that he was high, Mr. Gastello was arrested on suspicion of being under the influence of a controlled substance. During the arrest he was searched twice by two different officers. On the way to the jail the arresting officer advised him it was a Felony to bring drugs into the jail and asked if he understood. During booking they found his drugs in his pocket and charged him with violating Penal Code Section 4573 in addition to the charge of possession. Mr. Gastello was convicted at trial and ended up with an additional four (4) years in prison for the additional charge of bringing drugs into the jail.
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The trial court obviously thought it did not matter whether the act of bringing the drugs to the jail was voluntary or not. However, that is the simple fact which the Appellate Court focused on. The Appellate Court said that Mr. Gastello was guilty of simple possession, but he did not engage in the voluntary act (actus reus) necessary for the crime of bringing them into the jail. He was driven to the jail in custody, in a police car, in handcuffs. It was not like he walked in on his own – and that is what this law envisions.

Mr. Gastello obviously did not rest with the trial court’s decision. He knew that sometimes you have to go further than trial to get the right result. At our law firm we too know that sometimes you have to be prepared to “go all the way”. That is why our law firm has attorneys who handle appeals as well as trials. Sometimes we do all we can, we even go to trial and argue passionately to the jury, but that is not always enough. It can be difficult for a client to understand why a jury found them guilty when they truly believe they are innocent. But that is the nature of our adversarial justice system. Sometimes winning means you have to “go all the way”.

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