Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County No. 06CM7953, James T. LaPorte, Judge.
Diane Nichols, 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, and Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Levy, J., and Cornell, J.
A jury convicted appellant Albert Gabriel of possession of a sharp instrument while confined in a penal institution (Pen. Code, § 4502, subd. (a)), and found true allegations that appellant had served a prison term for a prior felony conviction within the meaning of section 667.5, subdivision (b) and had suffered two “strikes.” The court imposed a sentence of 25 years to life on the substantive offense plus one year on the prior prison term enhancement, and ordered that term to run consecutively to the prison term appellant was serving at the time of the instant offense.
All statutory references are to the Penal Code.
We use the term “strike” as a synonym for “prior felony conviction” within the meaning of the “three strikes” law (§§ 667, subds. (b)-(i); 1170.12), i.e., a prior felony conviction or juvenile adjudication that subjects a defendant to the increased punishment specified in the three strikes law.
Appellant’s appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Appellant has not responded to this court’s invitation to submit additional briefing.
FACTS
On October 19, 2006, appellant was an inmate at the Substance Abuse Treatment Facility at Corcoran State Prison. On the morning of that day, six to eight correctional officers, including Officer Jorge Moreno were conducting “unclothed body searches” of inmates. An unclothed body search is a routine procedure in which the inmate is naked and an officer conducts a search of the inmate’s person for contraband such as drugs and weapons.
In conducting an unclothed body search of appellant, Officer Moreno, following the normal procedure for such a search, told appellant to squat, cough and bend at the waist. Appellant complied but covered the area of his rectum with his right hand. Officer Moreno repeated the directive, and appellant responded in the same manner. As appellant did so, Officer Moreno noticed “something shiny” “poking through” appellant’s right hand. The officer repeated the directive, and appellant squatted and coughed but did not bend at the waist, and again covered the area of his rectum with his right hand. At that point, the officer grabbed appellant’s right hand and told him not to move. Appellant broke away from the officer’s grasp and assumed a combative stance. At that point, Officer Moreno called out to other officers present in the area, “he’s got something,” and another officer yelled, “get down.” There were five to six other inmates in the room at the time; they backed away and got down on the ground, approximately 10 to 15 feet away from appellant.
A struggle ensued during which one officer took appellant to the ground and several other officers came to that officer’s aid as appellant continued to struggle. While appellant was lying face down on the ground, two of the officers saw an object in the area of appellant’s buttocks. One officer testified at one point that the object was lying on appellant’s buttocks, but later testified that the object was wedged between the cheeks of appellant’s buttocks. The other officer testified he saw the object lying on appellant’s buttocks but not “wedged in.”
Officer Joseph Esparza grabbed the object, a piece of wire that had been removed from a rack used to carry food trays to inmates’ cells. It was wrapped in “plastic wrapping,” approximately five and one-half inches long and was “sharpened to a point at one end.” Office Esparza removed the plastic wrapping; he did not smell the plastic and he did not see “anything on it.” Officer Esparza, who had no experience in processing evidence, threw the plastic away.
DISCUSSION
Following independent review of the record, we have concluded that no reasonably arguable legal or factual issues exist.
DISPOSITION