Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kings County. James LaPorte, Judge, Super. Ct. No. 07CM7087
Stephen Gilbert, 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, Julie A. Hokans and Stephen G. Herndon, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Gomes, J., and Kane, J.
PROCEEDINGS
On August 16, 2007, an information was filed charging appellant, Victor Gudino, with assault with a deadly weapon by an inmate (Pen. Code, § 4501, count one) and possession of a sharp instrument in prison (§ 4502, subd. (a), count two). The information further alleged that Gudino caused great bodily injury in the commission of count one (§ 12022.7, subd. (a)) and two prior serious felony convictions within the meaning of the three strikes law (§§ 667, subds. (b)–(i) & 1170.12, subds. (a)–(d)). On December 19, 2007, the jury acquitted Gudino of count one and did not find the great bodily injury allegation true. The jury convicted Gudino of count two and found the two prior serious felony convictions true.
Unless otherwise noted, all statutory references are to the Penal Code.
The court sentenced Gudino to prison pursuant to the three strikes law for a term of 25 years to life and imposed a restitution fine of $200. The sentence was made consecutive to the sentence Gudino was serving when he committed the instant offense. On appeal, Gudino contends there was insufficient evidence that he possessed a weapon in violation of section 4502, subdivision (a). Gudino further contends the trial court failed to adequately instruct the jury on self-defense.
FACTS
At 5:50 a.m. on September 15, 2006, correctional officer Enrique Chavez of Corcoran State Prison was in his office when he heard a door banging and someone calling for an officer. Chavez could tell the noise came from B section and followed the sound to cell 34. Through a small side window, Chavez saw Jaime Cuevas and Gudino standing next to their bunks. Cuevas was distressed, breathing heavily and seemed frightened.
Cuevas told Chavez there was a misunderstanding and everything was fine. Gudino appeared calm. Chavez did not notice any injuries. Cuevas told Chavez that he needed to come out of the cell. As Chavez went downstairs to retrieve a key from the key booth operator, he heard a commotion and banging like two inmates fighting and ran back to the cell.
When Chavez looked back into the same cell, the lights were off and he could not see anything. Chavez pulled out a flashlight and saw Cuevas and Gudino facing each other throwing punches to their faces, upper torsos, and chests. Chavez ordered them to stop fighting before spraying both inmates with pepper spray.
Chavez did not initially see any weapons. After Gudino turned on the lights, Chavez could see that Cuevas had red marks on his face and chest and a laceration on his chest down to his stomach. Cuevas had a lot of blood on his chest and shoulder. Gudino and Cuevas were then placed in handcuffs. The laceration on Cuevas’s chest was between 20 and 24 inches long. Cuevas was taken to a prison hospital.
Cuevas had convictions for assault, carjacking, and second degree robbery. Gudino was Cuevas’s cellmate at Corcoran. The morning of the attack, Cuevas was awakened by a bad burning pain in his back. When Cuevas awoke, he saw Gudino who started swinging at Cuevas. Gudino was holding a sock full of soap and a blade. The blade was the kind used for shaving and Cuevas remembered it had a handle.
Cuevas began calling and screaming for help. Cuevas was bleeding from his stomach. Cuevas told the correctional officer that he had to get out of the cell. The correctional officer left for a few minutes before returning. Cuevas argued with Gudino, who rushed Cuevas attempting to cut him up more. Cuevas was trying to get away from Gudino who still had the blade. The correctional officer pepper sprayed Cuevas and Gudino when he returned. Cuevas had seen the blade before under his own mattress but denied that it belonged to him. Cuevas acknowledged he did not initially tell authorities that he saw a blade because he was scared.
In September 2006, Cuevas was taking medication for psychological problems. Cuevas was going to the psychiatric facility in Corcoran after the incident. Cuevas said he had never been found incompetent to stand trial. Cuevas wanted to change cells because Gudino would boss him around and made Cuevas feel disrespected. Gudino would whisper into Cuevas’s ear. Before the incident, Cuevas had a feeling something was going to happen.
Cuevas was cut on his shoulders, back, stomach, and chest. Cuevas received 10 to 20 stitches on his back and about 20 stitches on his stomach. Cuevas saw Gudino flush the blade down the toilet.
Matthew H. Bejarano, Jr., is a correctional officer with the prison’s Investigative Services Unit and is responsible for investigating crimes within the prison. Bejarano watched Cuevas being removed by gurney after the attack. Bejarano took photographs of Gudino and then of the cell area. The photographs depicted blood stains on the wall, showing a possible struggle. There were blood stains on a shirt, above Gudino’s bunk, on Cuevas’s bed sheets, and at the foot of Cuevas’s bed.
Robert Adame, another investigating officer, collected a white sock containing a bar of soap from the cell. Medical Technical Assistant Rolando Pobleto, LVN, examined Cuevas’s injuries. Cuevas was bleeding profusely so Pobleto called an ambulance. Pobleto believed the injuries were caused by a sharp object. Pobleto also examined Gudino that day. Gudino had superficial scratches and a cut lip.
David Ruiz, a correctional lieutenant, inspected Gudino’s hands and saw cut marks on the inside of his hands consistent with having a blade used to slash or stab. Because inmate weapons do not have stops, when they are used the inmate’s hand will slip up the blade and the inmate will cut himself. When Ruiz observed Cuevas’s injuries, it was clear, given the length of the wound, that Cuevas had suffered deliberate slashing. There were multiple slashes made over and over again in one area. Ruiz described the attack as “real violent.”
Gudino had packaged up his personal property in preparation for a cell search. A bloody sheet had been folded. Based on his observations of the cell and the inmates, Ruiz identified Gudino as the suspect and Cuevas as the victim. Gudino could have suffered injuries to his hands if he was holding a weapon to defend himself or to be aggressive.
Ruiz believed Gudino initially attacked Cuevas by slashing his back. Ruiz explained that there was a sock found in the cell that was tied up in a knot and state-issued soap caked up together. Soap placed in the sock can be used as a sling with which an inmate can hit others. Ruiz testified that soap in the sock could be used as a weapon, a sling or a slungshot. The slungshot is usually made with hardened pieces of soap inside a sock. This type of weapon causes serious bruising and injury. Gudino did not have any bruising on his body. The jury was shown photographs taken of Gudino after the fight. Ruiz explained that an injury on Gudino’s cheek was likely made by a fist.
Exhibits 52 and 53 were photographs of the sock and soap found in the prison cell and were admitted into evidence.
The day before the fight, Gudino told Correctional Officer Baer that he had no problems with his cellmate. Baer talked to Cuevas who said he had no safety concerns. The two convinced Baer there were no problems, though Cuevas preferred to be moved into a section with some “homies.”
Gudino testified that he shared a cell with Cuevas for 10 or 11 days prior to the fight. The two agreed to be cellmates. Gudino, however, described Cuevas as “fucked up.” Casual conversation upset Cuevas. Cuevas accused Gudino of whispering into his ear. Gudino asked Cuevas what was wrong with him. Gudino asked Cuevas if he needed medication and told him to take his medication because Cuevas was under the impression he could not take it.
On the morning of September 15, 2006, Gudino woke up, washed up, and put his things away. Gudino told Cuevas to go ahead, meaning he could use the facilities. Gudino said that Cuevas jumped out of bed and attacked him, hitting him several times using the sock later found on the cell floor. The two men exchanged blows. Cuevas threw Gudino’s television at Gudino. It was then that the correctional officer came to the cell door.
Gudino was trying to wash his face after the correctional officer initially left. Cuevas was digging in his bed. The two struggled, ending up by the door. Gudino grabbed Cuevas and then saw a small blade in Cuevas’s hand. Cuevas dropped the blade and Gudino picked it up. Cuevas quickly grabbed Gudino. Cuevas still had a hold on Gudino. Gudino reached up and cut Cuevas who was still fighting. As soon as he was free of Cuevas, Gudino threw the blade down. The two men continued to fight until the officer returned and pepper sprayed them.
During cross-examination, Gudino said he picked up the blade because he was in fear of his life. Gudino further admitted he cut Cuevas with the blade. Gudino asserted that he just threw the blade to the ground. Gudino denied flushing the blade down the toilet.
DISCUSSION
Evidence of Slungshot
Gudino contends that there was insufficient evidence that he possessed a slungshot. Gudino argues that a piece of soap in a sock is not a slungshot, does not meet the definition of a slungshot, and could not inflict serious injury on another person. Gudino was charged in count two with possession of a slungshot or a sharp instrument and argues that because the jury could have convicted him of possession of a slungshot, his conviction must be reversed for insufficient evidence.
The jury was instructed as to count two with CALCRIM No. 3501, the so-called unanimity instruction. The jury was advised that the defendant was charged with possession of a sharp instrument or a slungshot in count two and it could not find him guilty unless all the jurors agreed that the prosecution proved the defendant committed at least one of those acts and they also agreed on which act he committed.
In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence – evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. It is the jury, not the appellate court, which must be convinced of the defendant’s guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. (People v. Rodriguez (1999) 20 Cal.4th 1, 11; also see People v. Johnson (1980) 26 Cal.3d 557, 578; Jackson v. Virginia (1979) 443 U.S. 307, 317-320.)
In reviewing a challenge to the sufficiency of the evidence, appellate courts do not determine the facts. We examine the record as a whole in the light most favorable to the judgment. We presume the existence of every fact the trier of fact could reasonably deduce from the evidence in support of the judgment. (People v. Guerra (2006) 37 Cal.4th 1067, 1129; People v. Kraft (2000) 23 Cal.4th 978, 1053.)
Section 4502, subdivision (a) proscribes inmates from the possession or carrying of a series of weapons including a slungshot or a sharp instrument. A slungshot has been defined as a small mass of metal or stone fixed on a flexible handle or strap that is used as a weapon. (People v. Fannin (2001) 91 Cal.App.4th 1399, 1401-1402 (Fannin); People v. Williams (1929) 100 Cal.App. 149, 151.) The Fannin court summarized a slungshot as “a striking weapon consisting of a heavy weight attached to a flexible handle.” (Fannin, supra, 91 Cal.App.4th at p. 1406.) Fannin held that the prosecution bears the burden of proving the defendant possessed such an object as a weapon. (Ibid.)
Section 4502, subdivision (a) provides:
The slungshot found in Gudino’s cell was made with a sock, knotted on one end, and filled with caked or hardened soap. Officer Ruiz testified that this instrument can cause serious injury and bruising. Cuevas, the victim, testified that Gudino was holding the sharpened instrument and the slungshot.
We find that the weapon described by Cuevas and Officer Ruiz comes within the common definition of a slungshot, even if the sock was not filled with a mass of metal or stone. The handle, the sock itself, was flexible. The hardened pieces of soap may not have been as hard as metal, but could have been nearly as hard as stone. The jury was entitled to determine, based on the photographs it viewed as well as the testimony of correctional officers, that hardened soap could cause serious injury or bruising to the victim when deployed inside the sock. The prosecution submitted sufficient evidence that Gudino possessed a slungshot.
The jury was given the unanimity instruction. We cannot discern from the verdict whether the jury unanimously agreed that Gudino possessed a slungshot, a sharp instrument, or both a slungshot and a sharp instrument. There was substantial evidence that Gudino possessed a sharp instrument given the lacerations on the victim’s body and the cuts on Gudino’s hand. There is also evidence from Cuevas’s testimony that Gudino attached the sharp instrument to the slungshot.
Gudino analogizes his case to People v. Mayberry (2008) 160 Cal.App.4th 165 (Mayberry). In Mayberry, the defendant was convicted of possession of a sandclub or sandbag in violation of section 12020, subdivision (a)(1). The defendant had modified a workout glove with sand and used it in an assault. (Mayberry, supra, 160 Cal.App.4th at p. 167.) The Mayberry court found that a workout glove did not meet the definition of a sandclub or sandbag. The Mayberry court further found that the means in which the glove was used could not transform the glove into a sandclub or sandbag. (Id. at pp. 169-171.) Because the knotted sock and dried soap employed by Gudino meets the statutory definition of a slungshot, we find the facts of Mayberry inapposite to those in the instant action.
Many of the statutorily proscribed items in section 12020, subdivision (a)(1) are the same as those in section 4502, subdivision (a).
We do not reach the question of whether Mayberry correctly interprets the statutory definition of a sandclub or sandbag.
Self-Defense Instruction
Gudino contends the trial court failed to give a proper self-defense instruction because the jury was only instructed that Gudino was not guilty of count two, possession of a sharp instrument, if Gudino used force against another person in self-defense. Gudino argues that the instruction did not include possession of a slungshot and, therefore, he did not receive a complete instruction on self-defense.
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 himself or herself in anticipation of a future attack. (People v. Saavedra (2007) 156 Cal.App.4th 561, 571 (Saavedra).)
Gudino’s theory of self-defense was not predicated on use of the slungshot. Gudino testified, and we acknowledge his testimony constituted substantial evidence of self-defense, that the victim grabbed a blade from his bed and attacked Gudino with it. During a struggle, according to Gudino, Cuevas dropped the blade and Gudino grabbed it from the floor and used it in self-defense to stop Cuevas who was still attacking him. Gudino never admitted using the slungshot in self-defense.
Cuevas’s testimony was that Gudino started attacking him with the slungshot and/or the blade while he was sleeping and that Cuevas only fought back in self-defense. Cuevas did not state that he used either weapon in the fight but did explain that he was fighting defensively. There was no evidence from either witness that Gudino used the slungshot in self-defense. The only instrument Gudino admitted using in self-defense was the sharp instrument. The trial court was not obligated to instruct the jury on a theory for which there was no evidentiary support, i.e., that Gudino was defending himself with a slungshot.
To show a violation of section 4502, the prosecution must prove 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, supra, at p. 571.)
DISPOSITION
The judgment is affirmed.
“Every person who, while at or confined in any penal institution, while being conveyed to or from any penal institution, or while under the custody of officials, officers, or employees of 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.”