P. v. Herrera
Filed 10/9/08 P. v. Herrera CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE, Plaintiff and Respondent, v. JOSE LUIS HERRERA, Defendant and Appellant. | E044298 (Super.Ct.No. RIF091352) OPINION |
APPEAL from the Superior Court of Riverside County. J. Richard Couzens, Judge. (Retired judge of the Placer Super. Ct. assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Affirmed.
Lynelle K. Hee, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
A jury found defendant and appellant Jose Luis Herrera guilty of manufacturing a sharp instrument and shank while confined in a penal institution. (Pen. Code, 4502, subd. (b)). Defendant waived his right to a jury trial on the allegations that he had two prior strike convictions, and a trial court found the strike priors true. ( 667,[1]subd. (c) & (e)(2)(A), 1170.12, subd. (c)(2)(A).) The court sentenced defendant to a term of 25 years to life in state prison.
Defendant filed a notice of appeal and simply checked the box stating that he was appealing from a judgment entered on October 2, 2007, in a Jury or Court Trial. The notice did not set forth any basis for the appeal. We affirm.
FACTUAL BACKGROUND
The evidence at trial established the following:
On April 27, 2000, defendant was an inmate at the Robert Presley Detention Center, cell 15 C1. A laundry exchange was scheduled for that morning, during which officers exchanged the inmates clothing and bedding and searched their cells for contraband and weapons. Officer Donald Lorenz searched defendants cell that day and found a homemade instrument underneath the mattress. The instrument was made from a disposable razor sold in the commissary. The razor had been disassembled and a double-end razor blade had been inserted into one end of the handle. On top of the mattress, Officer Lorenz found defendants inmate identification band and commissary card. Officer Lorenz and Officer Mario Hernandez interviewed defendant about the instrument. Officer Lorenz read defendant his Miranda[2]rights and then questioned him. The officers showed defendant the instrument, and defendant admitted it belonged to him. Defendant said he used it to sharpen pencils and that he kept it out in the open because there was no reason to hide it.
Correctional Officer Mike Munoz testified that a shank is a jail-made weapon . . . utilized to assault another person, either by stabbing, cutting or slicing. He testified that he had seen razors used to make a shank. Inmates would break the blade off of a disposable razor and attach it to the handle of the razor, a pencil, or anything that they could use as a handle.
DISCUSSION
Dependant appealed, and upon his request this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436, and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case and several potential arguable issues, including whether 1) there was sufficient evidence that the instrument recovered under defendants mattress qualified as a stabbing instrument within the meaning of section 4502, subdivision (b); 2) the court prejudicially erred in admitting expert testimony regarding the types of weapons that were typically found in prison; 3) the court correctly instructed the jury on the elements of section 4502, subdivision (b); 4) there was sufficient evidence that defendant previously suffered two prior strike convictions; 5) the court abused its discretion when it denied the defense motion to strike one of more of the prior convictions under section 1385; and 6) the court erred in failing to order a supplemental probation report.
Counsel has requested this court to undertake a review of the entire record. We offered defendant an opportunity to file a personal supplemental brief, which he has not done.
We have now concluded our independent review of the record and find no remaining arguable issues.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
J.
We concur:
RAMIREZ
P.J.
MILLER
J.
Publication courtesy of San Diego free legal advice.
Analysis and review provided by Santee Property line attorney.
San Diego Case Information provided by www.fearnotlaw.com
[1] All further statutory references will be to the Penal Code unless otherwise noted.
