By Mary Magana-Ayala
SACRAMENTO, CA – Although his public defender argued his charges should be reduced at Rick Smith’s preliminary hearing Tuesday in Sacramento County Superior Court, Smith will face trial for felony possession of a controlled substance and a misdemeanor of being in possession of paraphernalia used to ingest the controlled substance.
Court was delayed when Smith stated he did not understand his rights and expressed his agitation at his charges being charged as a felony because of a prior conviction more than 30 years ago.
Smith interrupted Judge David Bonilla when expressing his agitation over the case, to which Judge Bonilla raised his voice and stated, “Mr. Smith, do not interrupt me.”
“I am upset, there is no victim, no witness, and no cameras yet my attorney wanted for me to take probation,” said Smith to Judge Bonilla, who called a recess so Smith could able to talk to Assistant Public Defender Maura Delarosa about his rights before continuing with the preliminary hearing.
After the 30-minute recess, Judge Bonilla asked Smith if he was aware of his constitutional rights to which Smith responded, “Yes, your Honor” and the preliminary hearing continued.
According to Judge Bonilla the charges occurred on Sept. 8, 2021, where Smith was arrested and found in possession of both cocaine and methamphetamine along with a crystal pipe.
Deputy District Attorney Adriana Garcia called Officer Joseph Smith to testify since he was the arresting officer that detained Smith on Sept. 8.
Officer Smith said at the scene he searched the backpack of Smith where he found a pill bottle with clear crystal like substance and a clear baggie with white powder inside of it. He also stated he found a clear crystal pipe which he argued was commonly used to smoke methamphetamine.
“The clear crystal-like substance was presumptive positive for methamphetamine and white-like powder was also presumptive positive for cocaine,” stated Officer Smith when explaining the NARTEC test he conducted for the two controlled substances.
PD Delarosa asked to reduce the charges from a felony to misdemeanor, arguing, “We are not talking about anything more than misdemeanor conduct. The fact that this can be charged as a felony is because of a 1989 conviction and for those reasons the connection being decades old and this case containing minor amounts of narcotics.
“I think there is a point where the criminal justice system needs to take responsibility that a case from 1989 should not be used over and over again decades later even when not having similar conduct… There are no labs here, I believe the NARTEC is insufficient for purposes of a holding order.”
DDA Garcia disagreed, and noted, “The People would oppose that motion given the lengthy criminal record…in particular, we are concerned with his 1989 felony burglary conviction he also has which the People have charged in their complaint a conviction for 647.6 although it old it is pursuant for this person to be required to register life long, and even minute possession of these drugs is felony conduct when you have a conviction on your record even if it is old.
“People are also concerned that he also has two cases and in that case Smith threw rocks at a victim, he was angry and threw rocks that hit the victim in the face, that is a violent crime. As to the holding order the evidence of the officer recognizing the substances to be methamphetamine and cocaine based on training experience as well as the NARTIC test is sufficient for the evidence standard for a preliminary hearing, ” the DDA added.
Judge Bonilla ruled, “The court is in agreement with the defense that the amount of narcotics involved is low on the scale of criminality, but Smith’s criminal record is extensive, as pointed out he has a 36-page rap sheet…he has been to prison multiple times for conviction or parole violation, many contacts with law enforcement as far as failure to register as a sex offender,”
The prosecution, the judge added, “pointed out he had two prior misdemeanor convictions in 2018 and 2019 but it still not an extensive period of lack of criminality. To exercise my discretion in 17(b) when you look at all the factors, the court is not going to do that.”
In the end Judge Bonilla denied the motion to reduce the charges to misdemeanors and concluded that there was sufficient evidence to hold Smith to answer in trial. Smith was granted release on his own recognizance, but is still being held by another conviction of assault with a deadly weapon.
Non guilty pleas were entered and his trial is set for Dec. 13.
I’m no lightweight when it comes to holding people accountable but a 30+ year old 647.6 seems like a stretch. The rest of the rap sheet is a problem but the defendant is correct on the DA going back that far to drum up a felony enhancement charge for a drug problem today.
1. Definition and Elements of the Crime
While most people know that inappropriate contact with a person under 18 is illegal, many do not realize that words alone can sometimes be enough to get an adult into hot water. Under California Penal Code Section 647.6 PC, it is a crime to annoy or molest someone under 18 years old. Physical contact is not required to be guilty of this offense.
To prove that a defendant is guilty of annoying or molesting a child, a prosecutor must be able to prove the following elements:
The defendant engaged in conduct directed at a child
A normal person, without hesitation, would have been disturbed, irritated, offended, or injured by the defendant’s conduct
The defendant’s conduct was motivated by an unnatural or abnormal sexual interest in the child
AND the child was under the age of 18 when the conduct occurred.