Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kings County No. 06CM7686. Peter M. Schultz, Judge.
J. Peter Axelrod, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Kelly C. Fincher, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CORNELL, J.
A jury convicted Raylon Shane Attebury of possessing a sharpened instrument while incarcerated in a state prison, in violation of Penal Code section 4502, subdivision (a). In addition, two strike priors were found to be true, in violation of section 667, subdivisions (b) through (i), one of which resulted in a prison term within the meaning of section 667.5, subdivision (b). Attebury was sentenced to a term of 25 years to life pursuant to section 667, subdivision (e)(2)(A)(ii) and a determinate term of one year pursuant to section 667.5, subdivision (b). These terms were imposed consecutively to the 30-years-to-life term he currently is serving for a second degree murder conviction. We will affirm the judgment in its entirety.
All further statutory references are to the Penal Code unless otherwise stated.
FACTUAL SUMMARY
Attebury was incarcerated at Corcoran State Prison when a correctional officer searched his cell. The officer noted that a piece of metal approximately nine inches long was missing from the bottom of the metal door frame. His search of the cell did not discover the missing metal. Attebury was searched, and a piece of metal that appeared to match the missing door frame was located in the sole of the shower shoes he was wearing. One end of the metal was sharpened to a point.
Attebury was charged and convicted as indicated above.
DISCUSSION
Attebury contends there was insufficient evidence to support his conviction because there was no evidence that he was lawfully incarcerated in a penal institution pursuant to an order of the court. He also argues there was insufficient evidence to support the true finding on one of his prior convictions because the abstract of judgment on which the People relied to establish the conviction had handwritten across its face the word “discharge.” According to Attebury, this unexplained word renders the document too ambiguous to support a true finding.
We review claims of insufficient evidence under well-established rules. We review the whole record, not isolated bits of evidence, in a light most favorable to the judgment to determine whether there was reasonable, credible, and solid evidence on which the trier of fact could rely to find the defendant guilty beyond a reasonable doubt. (People v. Hillhouse (2002) 27 Cal.4th 469, 496; People v. Superior Court (Jones)(1998) 18 Cal.4th 667, 681; People v. Slaughter (2002) 27 Cal.4th 1187, 1203.) We also presume the existence of every fact the trier of fact reasonably could deduce from the evidence that supports the judgment. (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
I. Substantial Evidence of Incarceration
As pertinent here, section 4502, subdivision (a) provides that “Every person who, while … confined in any penal institution … possess or carries upon his or her person … any dirk or dagger or sharp instrument … is guilty of a felony.” Subdivision (c) of this section states that the definition of a “penal institution” includes a state prison. At trial, two correctional officers testified that Attebury was an inmate at California State Prison, Corcoran, at the time of the offense. In addition, the parties stipulated that “on August 7th, 2006, Mr. Attebury was a person confined in a penal institution.”
Attebury argues this testimony was insufficient. He bases his argument on section 4504, subdivision (a), which states that “A person is deemed confined in a ‘state prison’ if he is confined in any of the prisons and institutions specified in Section 5003 by order made pursuant to law, including, but not limited to, commitments to the Department of Corrections [and Rehabilitation].” (Italics added.) Attebury claims the prosecution was required to prove that he was confined in Corcoran State Prison by an order made pursuant to law, and the prosecution’s failure to do so requires reversal of the conviction.
Cocoran State Prison is listed in section 5003, subdivision (r) as “California State Prison–King’s County at Corcoran.”
Neither our independent research nor the cases cited by the parties has identified a case that has addressed the issue of whether the jury specifically must find that a defendant charged with violation of section 4502, subdivision (a) was confined by an order made pursuant to law.
We need not decide the issue in this case because even if we were to assume there is such a requirement, the evidence was sufficient to support the judgment. The jury was instructed that “A person is deemed confined in a state prison if he was confined by order made pursuant to law regardless of the purpose of confinement or validity of the order.” The parties stipulated that Attebury was confined in a penal institution. Two correctional officers testified that Attebury was an inmate at Corcoran State Prison. There was no evidence or argument at trial that would suggest Attebury was confined at Corcoran for any reason other than an order made pursuant to law. From these facts the jury essentially was compelled to infer that Attebury was confined within the meaning of sections 4502 and 4504. Therefore, we reject Attebury’s claim of insufficient evidence.
II. Insufficient Evidence to Support the Prior Conviction
The information alleged that Attebury had suffered two prior convictions that constituted “strikes” within the meaning of section 667, subdivisions (b) through (i). The first was an attempted murder in 1989 and the second was second degree murder committed in 1994. The jury was charged with determining whether the allegations were true. To prove the truth of the allegations, the People relied on certified copies of Attebury’s prison records pursuant to section 969b.
The People relied on two abstracts of judgment contained in the section 969b packet. The first was for the 1989 attempted murder conviction and the second was for the 1994 murder conviction.
Attebury focuses on the abstract of judgment for the 1989 conviction. This abstract of judgment has the word “discharge” written in the center of the document with a line drawn from the lower left corner to the upper right corner. Attebury argues this abstract of judgment does not constitute sufficient evidence of a prior conviction because the handwritten marking on the document renders it ambiguous. He argues that the word “discharge” could mean that the conviction was overturned on appeal and thus may invalidate the conviction.
Attebury’s argument ignores our limited scope of review. We review the record in the light most favorable to the judgment and must presume the existence of every fact the jury reasonably could deduce from the evidence. While the jury may have been able to infer from the writing on the abstract of judgment that the prior conviction was not valid, it obviously did not do so. The jury may well have concluded that the writing was an internal notation used by the Department of Corrections and Rehabilitation that did not affect the validity of the conviction. The jury undoubtedly expected Attebury to present evidence of the conviction being overturned had a reversal occurred. The absence of any such evidence more than justified the jury’s conclusion that the conviction was valid. The abstract of judgment itself, writing or no writing, constituted sufficient evidence to uphold the jury’s true finding.
DISPOSITION
The judgment is affirmed.
WE CONCUR: WISEMAN, Acting P.J., HILL, J.