P. v. Hernandez







Filed 11/1/10 P. v. Hernandez CA4/3




NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, v. JUAN MANUEL HERNANDEZ, Defendant and Appellant.

G043247 (Consol. with G043248) (Super. Ct. Nos. 09NF2121 & 09NF2339) O P I N I O N

Appeals from judgments of the Superior Court of Orange County, Richard M. King, Judge. Affirmed.
Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Robin Derman, Deputy Attorneys General, for Plaintiff and Respondent.

* * *
In two separate prosecutions, defendant Juan Manuel Hernandez pleaded guilty to felonies. In each case, the trial court suspended imposition of sentence and placed him on probation. One term of each probation order required defendant to serve time in county jail. The court subsequently revoked defendant’s probation in both cases and imposed concurrent 16-month state prison terms after finding he violated Penal Code section 4502, subdivision (a) (all further references are to this code) by possessing “a sharp instrument” while a jail inmate. Defendant contends the court erred in finding the object found in his possession constituted a “sharp instrument” and, as applied in this case, section 4502, subdivision (a) is too vague. These contentions lack merit and we affirm the judgments.

FACTS

As defendant left the jail’s cafeteria, a sheriff’s deputy asked him to empty his pockets. The deputy saw an object protruding from defendant’s hand and, at the deputy’s request, defendant handed him the object. It consisted of a three-inch jail-issue pencil attached to a comb lacking its teeth by plastic material similar to that found in sandwich or garbage bags. When asked about the object, defendant described it as “a pencil,” and said he “forgot to leave it in [his] cell.
In addition to the jail-issued pencil, the deputy admitted inmates can purchase combs similar to the one attached to the pencil. But he testified altering the comb by removing the teeth violates the jail’s rules. The deputy also testified inmates receive plastic bags when they are served in-cell meals, but they are required to dispose of it.
The prosecution argued defendant violated his probation in each case because the object found on him constituted possession of a sharp instrument contrary to section 4502, subdivision (a). The court agreed.
DISCUSSION

1. Sufficiency of the Evidence
Section 4502, subdivision (a) makes it illegal for a “person who, while
at or confined in any penal institution, . . . [to] possess[] or carr[y] upon his or her
person . . . any dirk or dagger or sharp instrument . . . .” A violation of the statute requires proof “the defendant was confined . . . and that he had knowledge of the prohibited object in his possession. [Citation.]” (People v. Strunk (1995) 31 Cal.App.4th 265, 272.) On appeal, we “‘assume in favor of the [judgment] the existence of every fact that the [trier of fact] could reasonably deduce from the evidence and then determine whether or not a reasonable [trier of fact] could find the defendant guilty . . . . “If the circumstances reasonably justify the [trier of fact’s decision], the opinion of the reviewing court that those circumstances might also reasonably be reconciled with the innocence of the defendant will not warrant interference with the determination of the [trier of fact].” [Citation.]’” (People v. Patterson (1953) 118 Cal.App.2d 45, 49.)
The evidence shows defendant knew he possessed the object. He held it in a manner suggesting he was attempting to hide it from the deputy. When the deputy asked about the object, defendant admitted he forgot to leave it in his cell. “[U]nder section 4502, the object must be sharp,” and “[a] pointed object may qualify as ‘sharp.’” (People v. Hayes (2009) 171 Cal.App.4th 549, 560.) Even defendant’s counsel admitted the object “ha[d] a sharp point on it . . . .”
The deputy testified the altered comb and possession of the plastic material violated jail rules even without employing them to extend the pencil’s length. Defendant attacks this testimony, asserting the deputy was inexperienced. He also argues “[t]here was no evidence showing . . . the pencil was fastened securely enough to the modified comb that it could be used as a stabbing instrument.” This contention lacks merit. Witness credibility is an issue for the trier of fact to resolve. (People v. Swanson (1962) 204 Cal.App.2d 169, 173; People v. Jennings (1953) 121 Cal.App.2d 120, 122.) In addition, defendant’s trial counsel acknowledged the object defendant possessed was “capable of use as a stabbing instrument . . . .”
Defendant claims section 4502’s purpose is to prohibit the possession of weapons by inmates. Thus, merely establishing he had a sharp item that constituted contraband by jail officials did not violate the statute. He argues, “[i]n essence, the prosecution case amounted to the assumption that if an item is sharp and contraband, it violates . . . section 4502 . . . .”
The prosecution did not have to show defendant intended to use the object as a weapon to uphold the trial court’s decision. “Section 4502 . . . serves an objective demanding relative inflexibility. Its objective is protection of inmates and prison officials against assaults by armed prisoners. It is one of the stringent statutes governing prison safety. Thus, . . . California decisions place section 4502 among the statutes whose violation does not depend upon proof of guilty intent, holding that its prohibition is absolute [citation].” (People v. Evans (1969) 2 Cal.App.3d 877, 881.) “Proof of knowing possession of such an instrument by a[n] . . . inmate is sufficient for conviction. The prosecution is not required to prove the intent or purpose for which the instrument is so possessed. [Citations.]” (People v. Steely (1968) 266 Cal.App.2d 591, 594; see also People v. Evans, supra, 2 Cal.App.3d at p. 881.) Thus, the evidence supports the trial court’s finding defendant violated section 4502, subdivision (a).

2. Constitutional Vagueness
Alternatively, defendant asserts the application of section 4502 to a pencil modified to enhance its use as such raises constitutional vagueness concerns. “‘Due process requires that criminal statutes be reasonably definite. . . . In order for a criminal statute to satisfy the dictates of due process in this regard, it must meet two requirements. “First, the provision must be definite enough to provide a standard of conduct for those whose activities are proscribed. . . . Second, the statute must provide definite guidelines for the police in order to prevent arbitrary and discriminatory enforcement. . . .”’ [Citation.]” (People v. Custodio (1999) 73 Cal.App.4th 807, 811.)
California appellate courts have repeatedly held section 4502, subdivision (a) is not unconstitutionally vague. (People v. Custodio, supra, 73 Cal.App.4th at p. 811 [“Facial attacks on section 4502 based upon claims that it is unconstitutionally vague have been rejected over the past 50 years”]; People v. Harris (1950) 98 Cal.App.2d 662, 666; People v. Wells (1945) 68 Cal.App.2d 476, 479–480.) Citing Custodio, defendant contends the law does not prohibit the possession of a pencil . . . unless it has been modified to be used as a weapon.
Custodio supports the contrary conclusion. There an inmate possessed a “cup pick,” described as the melted “plastic barrel of a ballpoint pen with a piece of metal like a sewing machine needle sticking out of it.” (People v. Custodio, supra, 73 Cal.App.4th at p. 810.) The court rejected a vagueness claim. “[S]ection 4502, subdivision (a) is intended to protect inmates and correctional staff ‘from the peril of assaults with dangerous weapons perpetrated by armed prisoners.’ [Citation.] It applies to instruments that can be used to inflict injury and that are not necessary for an inmate to have in the inmate’s possession. [Citation.] [¶] Thus, viewing the statute ‘according to the fair import of [its] terms, with a view to effect its objects and to promote justice’ [citation], a person of ordinary intelligence would know what is and what is not prohibited by the statute.” (People v. Custodio, supra, 73 Cal.App.4th at p. 812.)
Citing dicta declaring a “person would understand . . . section 4502, subdivision (a) does not apply to a sharpened pencil─which ordinarily is used for a legitimate and necessary purpose─unless the inmate uses the pencil as a weapon” (People v. Custodio, supra, 73 Cal.App.4th at p. 812), defendant argues “[c]onstruing the statute to prohibit the possession of a modified pencil designed to be used as a pencil would . . . raise constitutional vagueness problems.” But the object defendant possessed was more than a mere “sharpened pencil.” The pencil was attached to a comb altered by the removal of the comb’s teeth. While the deputy was familiar with the term “‘pencil extension,’” he also testified such objects are deemed contraband and routinely confiscated. Defendant’s apparent effort to hide the object from the deputy reflects he knew it constituted contraband.
Section 4502, subdivision (a) provides “‘“‘person[s] of ordinary intelligence a reasonable opportunity to know what is prohibited, so that [they] may act accordingly.’ . . .”’ [Citation.]” (People v. Custodio, supra, 73 Cal.App.4th at p. 811.) The object defendant possessed was sharp and, as altered and assembled, deemed contraband by the jail. As in Custodio, despite its potential innocent use, the court found the object was not essential for an inmate to possess and it could inflict injury on others. Defendant’s constitutional vagueness challenge is meritless.

DISPOSITION

The judgments are affirmed.





RYLAARSDAM, ACTING P. J.

WE CONCUR:



FYBEL, J.



IKOLA, J.


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