Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. BLF004752. John J. Ryan, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Martha L. McGill, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and James D. Dutton and Emily R. Hanks, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, Acting P.J.
A jury found defendant Jason Bradley Tapia guilty of possession of a dirk or dagger while in custody (Pen. Code, § 4502, subd. (a)) and not guilty of assault with a deadly weapon by a prison inmate (§ 4501) (count 2). In a bifurcated proceeding, the trial court found true that defendant had sustained two prior strike convictions (§§ 667, subd. (b)-(i), 1170.12) and six prior prison terms (§ 667.5, subd. (b)). Defendant was sentenced to a total term of 25 years to life, to run consecutive to the sentence he was already serving. Defendant’s sole contention on appeal is that the trial court erred in failing to sua sponte instruct the jury with the self-defense instruction in regard to count 1. We reject this contention and affirm the judgment.
All future statutory references are to the Penal Code unless otherwise stated.
The court found the remaining prior prison term and prior strike allegations not true and struck the prior serious felony allegation as the offense defendant was convicted of was not a serious felony.
The trial court struck the six prior prison term allegations in the interest of justice.
I
FACTUAL BACKGROUND
On September 6, 2007, defendant was an inmate at Ironwood State Prison in Blythe and was housed in Facility A. Around 3:00 p.m. that day, Ironwood correctional officers were letting the inmates onto the Facility A yard when Officer Guadalupe Serrato noticed defendant and another inmate, Rusty Rodgers, fighting. The two were swinging at each other. Rodgers was about six feet four inches tall and weighed between 250 and 275 pounds; defendant was about five feet seven or eight inches tall and weighed between 220 and 230 pounds.
Officer Serrato activated the yard alarm to indicate an emergency. All the inmates sat down, as they are required to do when the alarm is activated, except defendant and Rodgers, who continued fighting. No other inmates were involved in the fight or standing anywhere near defendant and Rodgers.
Officer Paul Friend intervened. He got between defendant and Rodgers and repeatedly ordered defendant to get on the ground. Defendant stared past Officer Friend and continued to look at Rodgers. Finally, Officer Friend told defendant to get to the ground or he would use force. Defendant put his hands out and began to assume a prone position. Officer Friend noticed that defendant was holding a shank in his right hand. The weapon was seven inches long and one inch thick and made from an object sharpened to a point. It had a handle made from a tightly wrapping inmate bedding around the object. The tip of the weapon was wet and had dirt clinging to it. Officer Friend recognized it as an inmate-manufactured weapon that would be used for stabbing. Officer Friend struck defendant in the wrist with his baton, and defendant released the weapon. Defendant was then handcuffed.
A nurse at the prison responded to the scene to treat Rodgers’s injuries. Rodgers was bleeding from his back. He had a laceration on the left side of his back near his kidney. He was taken to the medical unit in a wheelchair but was released after receiving stitches. Defendant was also examined by the medical unit. He did not have any injuries.
While defendant was at the medical ward, he stated, “I’m not looking over my shoulder. I’m tired of these dudes talking.” He further told Officer Juan Gutierrez, who had escorted defendant to the medical ward, that he (defendant) had shot and killed a man named Henry Chandler in 2002, that Chandler had been an inmate in Ironwood’s Facility B, and that Chandler’s friends from Facility B were upset about the murder. Defendant also stated that Rodgers used to be housed at Facility B and had just been transferred to Facility A the day before. One day earlier, Rodgers had been transferred from administrative segregation to Facility A. Inmates are placed in administrative segregation for disciplinary reasons or due to security and safety concerns.
Following a search of the scene, no other weapons were found. In addition, a visual check of the other inmates indicated that no other inmates appeared to have been involved in the fight.
Rodgers was interviewed but declined to make a statement. An officer explained that it was not unusual for inmates to be uncooperative and to refuse to “snitch” on other inmates.
Rodgers testified on behalf of defendant and explained that he was six feet four inches tall and weighed 256 pounds and that just before the incident, he was housed in administrative segregation for six months because he had committed a battery on his cell mate. After serving his time in segregation, he was moved to Facility A-4, which is used as an overflow for the administrative segregation unit.
Rodgers claimed that he had initiated the fight with defendant and that he and defendant had a “beef” from before they were incarcerated. Rodgers explained that seven to eight years earlier, he and defendant were involved in a fist fight on the street. Although Rodgers could not recall the cause of the earlier fight, he said this preexisting disagreement was the reason he had attacked defendant. Rodgers denied having any knowledge about the Chandler murder.
Rodgers also stated that he did not see defendant with any weapon and that they had merely engaged in a fist fight. He further stated that he was not armed that day and that he was not the source of the weapon found on defendant. He claimed that defendant did not stab him in the back; he admitted that he had a scratch on his back but did not recall how he received it. Rodgers also testified that defendant was a friend and “homeboy” and that he was not trying to kill or injure defendant during the fight.
II
DISCUSSION
At defendant’s request, the trial court here instructed the jury on the defense of self-defense with respect to the assault charge (count 2) and not with respect to the weapons possession charge (count 1). Defendant contends the trial court prejudicially erred in failing to sua sponte instruct the jury on the limited defense of self-defense with respect to count 1. We disagree.
A trial court has a sua sponte duty to instruct regarding a defense if there is substantial evidence to support it and the defense is consistent with the defendant’s theory of the case. (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) A narrow claim of self-defense can be used by an inmate charged with a violation of section 4502 as long as the arming occurs during an altercation and the inmate has not armed him- or herself in anticipation of a future attack. (People v. Saavedra (2007) 156 Cal.App.4th 561, 568-570 (Saavedra).)
Our colleagues in Division One explained, “It is well established that a prison inmate charged with a violation of section 4502 cannot raise the defense of self-defense based on a claim that a weapon was possessed for protection from an anticipated, future attack. [Citations.] However, the courts have recognized in dicta that it may be permissible for an inmate to raise a narrow claim of self-defense when the inmate was ‘confronted with an emergency that... justified his seizing one of the prohibited weapons in order to protect himself.’ [Citations].” (Saavedra, supra, 156 Cal.App.4th at p. 568.) The court further noted, “‘[S]elf-defense might justify violation of the statute where the prisoner was under imminent mortal attack, had no opportunity to seek protection of the authorities, and temporarily seized a prohibited weapon in order to save his life.’” (Ibid., quoting People v. Velasquez (1984) 158 Cal.App.3d 418, 420-421.)
In Saavedra the evidence was sufficient to warrant an instruction on self-defense to the charge of possession of a weapon by an inmate. (Saavedra, supra, 156 Cal.App.4th at p. 569.) However, there, unlike here, “[t]he evidence showed [the defendant] was being beaten by two inmates. [The defendant] testified that he did not arm himself with the weapon prior to the attack but merely seized it from his assailants during the attack to prevent aggravation of his injuries, and that he did not immediately disclose the weapon to the correctional officers because of his injuries.” (Ibid.)
In the present matter, on the other hand, there was insufficient evidence to show that defendant seized the shank from Rodgers or another inmate when confronted with an emergency to protect himself. There was no evidence to show that anyone other than defendant brought the weapon to the yard or possessed the weapon. When Officer Friend intervened in the fight, defendant was holding the shank. No one testified to seeing Rodgers in possession of the weapon. Rodgers, in fact, testified that he did not have a weapon during the fight and that the weapon found on defendant was not his. In addition, no other inmate participated in the fight or was even close to the altercation. Indeed, the closest other inmate was about 70 feet away from the fight. Moreover, defense counsel never argued that defendant seized the shank during the encounter with Rodgers in order to protect himself.
Defendant’s arguments to the contrary are unavailing and speculative. There was no evidence to show, as defendant suggests, that Rodgers brought the shank to the yard and then defendant wrestled the shank away from Rodgers during the fight. There was no evidence from any witness that defendant used the shank in self-defense. The trial court was not obligated to instruct the jury on a theory for which there was no evidentiary support, i.e., that defendant seized the shank in an act of defending himself while under imminent threat.
“To show a violation of section 4502, the prosecution must prove that the defendant knew the prohibited object was in his or her possession....” (Saavedra, supra, 156 Cal.App.4th at p. 571.) The prosecution, however, need not prove the purpose for which the weapon was possessed because the intention for possession is not an element of the offense. Unlike murder, assault, and firearm discharge, which respectively require proof of malice, unlawful use of force, and gross negligence, the section 4502 offense does not contain an element that is negated by self-defense. Because self-defense for inmate weapon possession is not a defense related to the elements of the offense itself, the burden of proof, by a preponderance of the evidence, may be placed on the defendant. (Saavedra, at p. 571.)
III
DISPOSITION
The judgment is affirmed.
We concur: GAUT, J. KING, J.