P. v. Emery

Filed 5/12/06  P. v. Emery CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

            APPEAL from the Superior Court of Riverside County.  Russell F. Schooling, Judge.  (Retired judge of the Mun. Ct. for the Southeast Jud. Dist. of L.A., assigned by the Chief Justice pursuant to art. VI, §  6, of the Cal. Const.)  Affirmed.

            Sally P. Brajevich, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Ron Jakob and David Delgado-Rucci, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

            Following a jury trial, defendant was convicted of being a prisoner in possession of a sharp instrument.  (Pen. Code, §  4502, subd. (a);^[1] count 1.)  Following a bifurcated court trial, the trial court found that defendant had several prison priors and one prior strike conviction.  (§§  667.5, subd. (b), 667, subd. (c)-(e) & 1170.12, subd. (c).)  Defendant was sentenced to 11 years in prison, and appeals.

Defendant first contends that there is insufficient evidence to support his conviction in count 1, because the prosecution's two witnesses both agreed that the sharp metal object he possessed was not completed, but was in the process of being sharpened into a weapon.  We reject this contention, because the witnesses testified that the metal object was sharp enough to enter the body, or be used as a dangerous or deadly weapon.

Defendant further contends that the trial court committed reversible error by failing to give CALJIC No. 1.21 or, more broadly, instruct the jury that he must have knowingly possessed the sharp instrument.  We agree that the trial court erred in failing to instruct the jury on the knowledge element of the offense, but further conclude the error was harmless beyond a reasonable doubt.  Accordingly, we affirm the judgment.

THE EVIDENCE PRESENTED AT TRIAL

            On April 18, 2004, defendant was a prisoner at the California Rehabilitation Center (CRC) in Norco.  Correctional Officer William Jaquish was ascending a stairway when he noticed defendant inside the doorway of the inmate barber shop.  Jaquish made eye contact with defendant, and saw him make a furtive movement with his right hand, near his waist, as if he were trying to discard something.  Jaquish searched defendant and felt a hard object in his right front pocket.  It was a sharp, flat metal object sheathed inside a sock.  It was 10-1/2 inches long and 1-1/2 inches wide.  It was thicker on one end, and narrowed to a smaller point on the other end.  It was smooth on the top edge and rigid on the bottom edge. 

Jaquish opined that the object, though not completely sharpened, was sharpened enough to be used as a stabbing instrument and was capable of inflicting great bodily injury or death.  He said a weapon does not have to be sharpened to a fine point to make an entry into a body.^[2]  Lieutenant Jaime Aguilar of CRC agreed that the object was a â€