Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS071561
Premo, J.
Defendant Biniam Gebrezgi appeals from judgment following a court trial in which he was found guilty of being an inmate in possession of a weapon “of the kind commonly known as a... sharp instrument.” (Pen. Code, § 4502, subd. (a).) The trial court also found true that defendant had suffered a prior strike conviction (§ 1170.12, subd. (c)(1)) and that he was on bail in the present case when he was convicted of another felony (§ 12022.1). The court sentenced defendant to the mitigated term of two years, doubled for the strike offense, plus two years for the on-bail enhancement.
Further undesignated statutory references are to the Penal Code.
On appeal defendant argues that the evidence was insufficient to support the finding that the object he possessed was “sharp.” Defendant also argues that the prior conviction alleged as a strike was a juvenile adjudication that does not meet the statutory requirements for a strike. We conclude that the evidence was sufficient to support the conviction but we agree that defendant’s juvenile adjudication cannot support the strike enhancement. Accordingly, we shall reverse for resentencing.
I. Factual and Procedural Background
On January 9, 2007, defendant, then an inmate at Salinas Valley State Prison, was found to have concealed in his rectum a four-inch piece of plastic formed into a cylinder and tapered to a point at one end. He was charged by information with one count of being an inmate in possession of a weapon and with the two sentencing enhancements noted above. He waived his right to a jury.
The only disputed issue pertaining to the substantive offense was whether the plastic item introduced into evidence as exhibit 1 was indeed “sharp.” The prosecution relied upon the appearance of the evidence alone to establish the fact that the item was sharp. Intending to show that the item was not sharp, defense counsel donned a latex glove and made the following demonstration:
“Your Honor, I’m holding a four-inch long piece of plastic. It is pure plastic. It is tapered from approximately one-half inch at its widest point to a blunt point, looking like a pencil....
“I’m turning my hand down, and I’m stabbing rather forcefully, not into my palm or not into the heal [sic] of my hand, but right onto the--my wrist. My wrist is now red from having been thrust several times, and now it’s painful but it’s painful as if I was poking myself with a pen.
“And now I’m taking about a foot-long wind up and I’m stabbing pretty aggressively at my wrist. I think the Court can see my wrist is red now. And I’m not going to continue because it’s painful. But it’s painful because I’ve been banging my wrist as one would bang my wrist with another blunt object.” Counsel’s demonstration did not pierce the latex glove or the skin beneath.
The trial court then examined exhibit 1 and performed its own demonstration:
“The Court agrees with [defense counsel] that it’s approximately four inches in length, that the widest end appears to be approximately half an inch. It’s round. It’s actually shaped somewhat like a bullet. It comes to a tapered point on the opposite end from the half-inch diameter piece. It is stiff.
“The Court is attempting to bend it and cannot bend it.
“It appears to be made of plastic. It does come to a point. As I indicated, shaped somewhat like a bullet.
“Without proper instruments, I can’t tell you what the degree of the angle is for the pointy end. It’s not as pointed as, say, a ballpoint pen, but it’s certainly not blunt.”
The trial court then stabbed an apple with the object, using a “slight to medium amount of force.” The court observed, “It penetrated the apple quite easily, and in fact, it’s a half an apple, split that. Made it split in half, for the record, and went all the way through.” Using what the court characterized as “the same amount of force, ” the court repeated the experiment with a “standard roughly three-and-a-half-inch long pencil stub that’s not particularly sharp, but still has some graphite showing that is usable.” The pencil “went into the apple. Did not split the apple in half, but did split it a little bit. It penetrated the apple and went clean on through to the other side.”
The trial court concluded that the demonstrations did not prove or disprove the sharpness element but that they were factors the court would take into account. The court held: “Looking at the object, the fact that it’s about four inches long, that it’s about a half an inch think [sic] at the base and tapers to a point, and that it is stiff and is not pliable in any fashion, and then that [defense counsel was] able to make red marks on [his] wrist with it, even though it didn’t penetrate the skin, and that the Court was able to penetrate an apple with it easily, the Court finds that it could, in fact, be a dangerous weapon and that it is a sharp instrument. [¶] I think that it qualifies under the current definition of Penal Code Section 4502[, subdivision] (a) as the kind of object that could be used and cause peril through assault and be considered a dangerous weapon.”
II.Discussion
A. Substantial Evidence
Section 4502, subdivision (a) provides, in pertinent part: “Every person who, while at or confined in any penal institution... possesses or carries upon his or her person or has under his or her custody or control any instrument or weapon of the kind commonly known as a blackjack, slungshot, billy, sandclub, sandbag, or metal knuckles, any explosive substance, or fixed ammunition, any dirk or dagger or sharp instrument, any pistol, revolver, or other firearm, or any tear gas or tear gas weapon, is guilty of a felony and shall be punished by imprisonment in the state prison for two, three, or four years, to be served consecutively.” (Italics added.) The issue before us is whether there is substantial evidence to support the trial court’s finding that exhibit 1 is a sharp instrument within the meaning of this subdivision.
Under the substantial evidence standard of review, we presume in support of the judgment the existence of every fact the trier could reasonably have deduced from the evidence. (People v. Fosselman (1983) 33 Cal.3d 572, 578.) We review the record in the light most favorable to the prosecution to determine whether it discloses any evidence that is reasonable, credible, and of solid value, which could support the judgment. (People v. Johnson (1980) 26 Cal.3d 557, 576.) To the extent defendant argues that the statute requires a particular degree of sharpness that this object did not possess, we are confronted with a question of statutory interpretation, which calls for our independent review; we are not bound by the findings of the trial court. (Cf. People v. Connor (2004) 115 Cal.App.4th 669, 678.) We begin our analysis on this legal issue--what does section 4502, subdivision (a) mean by “sharp instrument”? The question has been answered by a pair of cases: People v. Custodio (1999) 73 Cal.App.4th 807(Custodio) and People v. Hayes (2009) 171 Cal.App.4th 549.
In holding that the “sharp instrument” provision of section 4502, subdivision (a) is not unconstitutionally vague either on its face or as applied, Custodio, supra, 73 Cal.App.4th at page 812, observed, “By prohibiting prison inmates from possessing any instrument or weapon of the kind specified in the statute, section 4502, subdivision (a) is intended to protect inmates and correctional staff ‘from the peril of assaults with dangerous weapons perpetrated by armed prisoners.’ (People v. Wells (1945) 68 Cal.App.2d 476, 481.) 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. (People v. Morales [(1967)] 252 Cal.App.2d [537] at p. 541.)” Custodio rejected the defendant’s argument that the statute’s reference to “sharp instrument” was unconstitutionally vague because it could apply to pencils as well as to the etching tool he was charged with possessing. As Custodio recognized, a criminal statute is viewed “ ‘according to the fair import of [its] terms, with a view to effect its objects and to promote justice’ [citation], [so that] a person of ordinary intelligence would know what is and what is not prohibited by the statute.” A person of ordinary intelligence “would understand that 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.” (Custodio, supra, at p. 812.) In short, the rule of Custodio is that, to be a sharp instrument within the meaning of section 4502, subdivision (a), the instrument must be one that could be used to inflict injury and is not necessary for an inmate to possess.
People v. Hayes, supra, 171 Cal.App.4th 549, clarified that the instrument must also be sharp. In Hayes, the defendant was found with a plastic object much like the object at issue in this case--a cylindrical object formed from melted plastic and tapered to a point at one end. The defendant claimed the object was intended as a tool for cleaning his toenails, although he had secreted it in his underwear because he knew it might look like a weapon. “The object could puncture something if pressed with enough force, but so could a pen or pencil, which inmates are allowed to have.” (Id. at p. 554.)
The Hayes court reversed the defendant’s conviction under section 4502, subdivision (a) due to misleading jury instructions. The faulty instruction, taken from language in Custodio, stated: “ ‘A sharp instrument is an instrument that can be used to inflict injury and that is not necessary for the inmate to have in his possession.’ ” (People v. Hayes, supra, 171 Cal.App.4th at p. 557.) That instruction, combined with the prosecutor’s argument, allowed the jury to find the defendant guilty if the instrument could be used to inflict injury even if it was not sharp. (Id. at pp. 551-552.) Hayes held that, “[a]s used in section 4502, a ‘sharp instrument’ must be ‘sharp’ as that term is commonly used.” (Id. at p. 552.) The word “sharp” should be given its commonsense meaning. (Id. at p. 560.) That does not mean that the object must have a cutting blade like a knife or razor. “A pointed object may qualify as ‘sharp.’ ” (Ibid.) Indeed, a dictionary definition of “sharp” is, “adapted to cutting or piercing” as in “having a thin keen edge, ” or “tapering to a fine point.” (Webster’s 3d New Internat. Dict. (1993) p. 2088, col. 1-2.)
Thus, under Custodio and Hayes, in order to qualify as a prohibited “sharp instrument” under section 4502, subdivision (a), the instrument must be one that is “sharp” as that term is commonly understood, it must be something that can be used to inflict injury, and it must be something that an inmate is not required to possess.
Turning now to the evidence, we note that the only evidence the prosecution produced was the object itself, which both the court and defense counsel manipulated to determine whether it could be characterized as sharp. The court did not rely solely upon the demonstrations, however, but also expressly relied upon the appearance of the object. Consequently, we have obtained exhibit 1 so that we may see it, too.
Exhibit 1 is an inflexible solid plastic cylinder that is pointed at one end. Its diameter is significantly thicker than a standard pencil but not quite as thick as a highlighter or dry erase marker pen. The pointed end is not, as the trial court observed, as pointed as the tip of a ball point pen but it is not rounded. Its length and heft are such that it could be neatly concealed in a closed fist. Employed with sufficient force, it looks as if it could easily inflict injury to the softer parts of a human body. Accordingly, our examination of exhibit 1 confirms that the evidence is sufficient to support the trial court’s findings that the object is “sharp” and that it could be used to inflict injury.
Defendant argues that, while the object might be capable of poking an eye out, so could a finger. The argument is beside the point given the prerequisite that the instrument be one the inmate is not required to possess. It is undisputed that defendant had no legitimate reason to possess the object.
Defendant also argues that the object is simply not sharp as demonstrated by defense counsel’s unsuccessful attempt to stab himself. But while the object did not pierce counsel’s wrist, the trial court was entitled to reject the demonstration as not determinative of whether the object could inflict an injury in other situations. It is true that the object is not as sharp as, say, a razor or a sharpened knife. But the question is whether there was sufficient evidence to support the finding that defendant possessed a sharp instrument--one adapted to cutting or piercing--that could be used to inflict injury and that was not necessary for him to possess. The evidence here is sufficient to support the trial court’s determination that exhibit 1 is such an instrument.
B. The Strike Offense
Defendant contends the trial court erred in finding his prior juvenile adjudication was a “strike” for sentencing purposes because the prior adjudication was for attempted robbery, an offense not listed in Welfare and Institutions Code section 707, subdivision (b). The argument presents a question of law, which we review de novo. (People v. Cromer (2001) 24 Cal.4th 889, 894.)
The information alleged that defendant had suffered a prior strike conviction within the meaning of section 1170.12, subdivision (c)(1) in that defendant was convicted in 2002 of attempted robbery (§§ 664, 211). The evidence showed that the 2002 “conviction” was actually a juvenile adjudication in which the juvenile court found defendant to have committed both attempted robbery and burglary (§ 459). The trial court found that the prior juvenile adjudication for attempted robbery was a strike and, therefore, doubled the sentence for the section 4502 violation.
The record does not show that either the parties or the court considered whether a juvenile adjudication for attempted robbery could be deemed a strike under the statutory scheme, although defense counsel raised several other challenges to the allegation. The Attorney General’s brief on appeal does not respond to defendant’s argument but counsel conceded the point at oral argument.
As pertinent here, a prior juvenile adjudication is a strike if, (A) the juvenile was 16 years of age or older at the time he committed the prior offense; (B) the prior offense is listed in Welfare and Institutions Code section 707, subdivision (b), section 667.5, subdivision (c), or section 1192.7, subdivision (c); (C) the juvenile was found fit to be dealt with under the juvenile court law; and (D) the juvenile was adjudged a ward of the court because he “committed an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code.” (§ 667, subd. (d)(3)(D); see also § 1170.12, subd. (b)(3) [imposing identical requirements].)
People v. Garcia (1999) 21 Cal.4th 1, interpreted this scheme as requiring, in order for a prior juvenile adjudication to qualify as a strike, that the prior juvenile adjudication have been for a crime listed in one of the three statutory lists described in paragraph (B) and the defendant have been adjudged a ward based upon his or her commission of at least one offense listed in Welfare and Institutions Code section 707, subdivision (b), “whether or not that offense is the same as the offense currently alleged as a strike.” (People v. Garcia, supra, at p. 6.)
In the juvenile proceedings, the only felony offenses for which defendant was adjudged a ward of the court were attempted robbery (§§ 664, 211) and burglary (§ 459). Neither offense is listed in Welfare and Institutions Code section 707, subdivision (b). Therefore, even though attempted robbery would qualify as a strike under paragraph (B) of section 667, subdivision (d)(3), the separate requirement of paragraph (D) is not satisfied because defendant was not adjudged a ward of the court based upon an offense listed in Welfare and Institutions Code section 707, subdivision (b). (People v. Garcia, supra, 21 Cal.4th at p. 15.) Accordingly, the trial court erred in applying the second-strike enhancement.
Given our conclusion, we need not address defendant’s challenge to the holding in People v. Nguyen (2009) 46 Cal.4th 1007.
III. Disposition
The judgment is reversed. The cause is remanded for resentencing in accordance with the opinions expressed herein.
WE CONCUR: Rushing, P.J., Duffy, J.