P. v. Wiley

 

 

 

 

 

 

 

Filed 7/11/13  P. v. Wiley CA3

 

 

 

 

 

NOT TO BE PUBLISHED

 

 

 

 

 

California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b).  This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

 

 

 

IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE
DISTRICT

(Lassen)

----

 

 

 
>

THE PEOPLE,                           Plaintiff and Respondent,               v.   PATRICK WILEY,                           Defendant and Appellant.

C068661   (Super. Ct. No. CH028162)

 

 

            A jury
convicted defendant Patrick Wiley of possession
of a sharp instrument by a prison inmate (Pen. Code, § 4502, subd. (a)href="#_ftn1" name="_ftnref1" title="">>[1] (undesignated statutory references are to the
Penal Code) and, in a trial by court, he was found to have a prior strike
conviction for murder (§ 187).  He was
sentenced to a consecutive term of six years (midterm of three years doubled
because of the strike) in state prison. 

            On appeal,
defendant contends the evidence is insufficient to support the conviction and
the conviction may not be reduced to an attempt.  We agree the evidence does not support the
conviction, but disagree with him that we may not reduce the offense to an
attempt.

FACTS

            Craig
Franklin, a correctional officer at High Desert State Prison, testified that
defendant was an inmate of the prison in an administrative segregation
section.  When an inmate has been placed
in that section, their personal property is removed from their possession and
placed in individual plastic bags that are then placed in boxes that are
securely taped.  The boxes are placed in
a storage area.  Inmates may make out a
prison form, called a “wish list,” specifying items of their personal property
they would like to have returned to them. 
If the requested property is “allowable” it may be returned to the
inmate. 

            On June 22, 2010, defendant filled out a
wish list requesting, among other things, two bars of soap.  On July
30, 2010, Officer Franklin removed defendant’s wish list from
defendant’s property bag, handed the list to defendant and had him verify that
it was his, which defendant did.  Franklin
returned to where he had left defendant’s property bag and began going through
it to determine if the items requested were allowable.  He discovered that two bars of soap had been
split in length.  Inside one bar was rust
and inside the other was a three-inch piece of metal with a sharp point (sharp
instrument).  Franklin
asked defendant if he “used to play with” the soap, and defendant responded,
“Yes.”  Franklin
turned the bars of soap over to Officer James McCloughlan, who investigates
prison crimes. 

            On July 30, 2010, Officer McCloughlan
confronted defendant regarding the sharp instrument within the soap.  Defendant admitted making the sharp piece of
metal and placing it in the bar of soap. 
On August 23, 2010,
at a prison disciplinary hearing, defendant again admitted the piece of metal
was his. 

DISCUSSION

I

            Defendant
contends the evidence was insufficient to support the conviction because it
failed to prove that on July 30 he had any control of the sharp instrument
found in his property bag.  The People
respond, as they did in the trial court, that defendant constructively
possessed the sharp metal piece on July 30, 2010, because it was in his
property bag and he had a right to control that property.  We agree with defendant.href="#_ftn2" name="_ftnref2" title="">[2] 

            “In
reviewing a criminal conviction
challenged as lacking evidentiary support,

‘ “the court must review the whole record in the light most favorable to the
judgment below to determine whether it discloses substantial evidence -- that
is, evidence which is reasonable, credible, and of solid value -- such that a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt.” ’  [Citation.]”  (People
v. Maury (2003) 30 Cal.4th 342, 396.)

            “Under
California law, a defendant may be deemed to have constructive possession of
contraband that is in the possession of another person . . .  only when the person actually possessing the
contraband does so ‘pursuant to [the defendant’s] direction or permission,’ and
the defendant ‘retains the right to exercise dominion or control over the
property.’  [Citations.]”  (In re
Rothwell (2008) 164 Cal.App.4th 160, 169, quoting People v. Showers (1968) 68 Cal.2d 639, 644.)

            In support
of the People’s theory that defendant constructively possessed the sharp
instrument on July 30, the People make the following argument:  “Here, [defendant] had some control over the
items in his property box.  [Defendant]
was able to request items and have them issued to him.  In this sense, [defendant] demonstrated some
control over the items.  Sharing control
with the correctional authorities does not negate [defendant’s] constructive
possession over the items because exclusive control is not necessary.  Both [defendant] and the correctional
authorities shared control over the property box containing [defendant’s]
property and the sharp instrument. 
Because [defendant] maintained some right of control over the sharp
instrument, the jury could reasonably infer that he constructively possessed
the contraband.  In conclusion, the
jury’s findings and conviction should be upheld because there was ample
evidence that [defendant] maintained some control over the sharp
instrument.” 

            The
argument is based on the false premise that defendant’s “wish list” was an
exercise of “some control” over the sharp instrument.  The record clearly establishes that defendant
had no control over whether he actually obtained possession of the
contraband.  Although he submitted the
wish list requesting the soap, the correctional officers exercised control over
the contraband by refusing to provide it to him after determining it was not
allowable.  It is also not dispositive
that defendant may have had prior control
or possession of the sharp instrument at some point in time, because the
information charged possession on or about July 30, 2010, the day Officer
Franklin declined to return the contraband to him.  On this record, defendant did not possess the
sharp instrument on or about July 30, 2010. 


II

            Defendant
contends that this court may not reduce his conviction for possession of a
sharp instrument to an attempt to commit that offense because he was neither
charged with attempt nor is attempt a lesser included offense in the charged
crime.  Attempt to possess a sharp
instrument is not a lesser included offense of possession of a sharp
instrument, defendant argues, because attempt (§ 21a)href="#_ftn3" name="_ftnref3" title="">>[3] is a specific intent offense whereas
possession of a sharp instrument is a general intent offense.  (People
v. Strunk (1995) 31 Cal.App.4th 265, 271-272.)  Thus, attempt has an element which is not
present in the charged offense. 

            We agree
with defendant that attempt was neither charged nor is it an offense included
within the crime of possession by an inmate of a sharp instrument.  However, we disagree with him that we may not
reduce the conviction to attempt.

            “A
defendant may be convicted of an uncharged crime if, but only if, the uncharged
crime is necessarily included in the charged crime.  [Citations.]” 
(People v. Reed (2006) 38
Cal.4th 1224, 1227.)  In >People v. Bailey (2012) 54 Cal.4th 740,
which was decided after the filing of the briefs in the present case, the
California Supreme Court held that attempt to escape is not a lesser included
offense of escape because “attempt to escape contains a specific intent element
not present in escape . . . .”  (Id.
at pp. 744, 749.)  The court then
considered whether it was appropriate to reduce the offense to an attempt to
escape.  (Id. at pp. 753-754.) 
Analogizing the issue to a trial court’s failure to instruct the jury on
an element of the crime, an error which is judged by the
harmless-beyond-a-reasonable-doubt standard, the court concluded it could not
make the reduction because the defendant had presented evidence from which the
jury could have found he lacked the specific intent to escape.  (Ibid.)

            By parity
of the reasoning with that of Bailey
and Strunk, we conclude that
attempted possession of a sharp instrument is not a lesser included offense of
possession of a sharp instrument because the former required a specific intent
which is not an element of the latter.

            However, in
accord with the reasoning in Bailey,
only the lack of charging the element of specific intent to possess the sharp
instrument differentiates attempt from the completed crime of possession.  Here, as to the element of specific intent to
possess the sharp instrument, defendant admitted to investigating Officer
McCloughlan and to the disciplinary hearing officer that he made the sharp
instrument and hid it in the soap.  There
can be no doubt that defendant intended to possess the sharp instrument because
he placed the soap on his wish list. 
Consequently, we can confidently say beyond any reasonable doubt that
had the jury been instructed on the missing element of specific intent, they
would have found that element to exist. 
Therefore, it is appropriate to reduce the offense to an attempt.

DISPOSITION

            Defendant’s
conviction for possession of a sharp instrument in violation of section 4502,
subdivision (a) is reduced to an attempt to commit that offense.  Pursuant to section 664, subdivision (a),
defendant’s sentence is reduced to three years (half the three-year term
imposed, doubled because of the strike). 
The superior court is directed to prepare an amended abstract of judgment
reflecting this modification and forward a copy to the Secretary of the href="http://www.mcmillanlaw.com/">Department of Corrections and Rehabilitation. 

 

 

 

                                                                       NICHOLSON      , Acting P. J.

 

 

 

We concur:

 

 

 

          BUTZ              , J.

 

 

 

          MAURO          , J.