P. v. Lee

Filed 6/14/06 P. v. Lee CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THIRD APPELLATE DISTRICT

(Lassen)

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Convicted by a jury of possessing a sharp instrument in a state prison as an inmate (Pen. Code, § 4502, subd. (a); undesignated section references are to the Penal Code), and found by the trial court to have a prior strike conviction (§ 667, subds. (b)-(i),) defendant Johnnie Toussaint Lee appeals, contending his motion to dismiss for delay in filing the case should have been granted. We shall affirm.

FACTS

Procedure

The complaint, filed on June 10, 2004, alleged that defendant, an inmate of High Desert State Prison in Lassen County, California, committed the offense on December 26, 2002.

On August 5, 2004, defendant filed a motion to dismiss for a violation of due process from delay in filing the case. The information was filed on August 30, 2004.

Following an evidentiary hearing, the trial court denied the motion without prejudice. The case went to jury trial with bifurcation of the prior.

After resting, defendant renewed his motion to dismiss. The trial court again denied it, finding defendant had not shown prejudice.

Following the verdict, defendant moved for new trial on the same grounds. The trial court denied the motion.

Trial evidence

The prosecution put on one witness, Correctional Officer Brett Fleming. The defense did not introduce any evidence.

Fleming testified: On the morning of December 26, 2002, he was conducting yard recall in C Yard with at least one other officer. During yard recall, inmates returning to their buildings from the yard line up for patdown searches. At least 100 inmates were going through yard recall at this time.

Defendant approached Fleming to be searched. Patting defendant down, Fleming felt a hard object around the zipper area of defendant's pants. Fleming handcuffed defendant and led him to the nearby program office to search further.

The program office contains five mesh inmate holding cells and two glass-fronted offices for superior officers that look out into the rest of the program office. Fleming did not recall if there were other inmates or officers in the program office. If any inmates had been working there, Fleming would have ordered them to leave for his safety before searching defendant.

Inspecting defendant's pants, Fleming found a sharpened five-inch-long metal object with a plastic or cellophane handle, concealed in a hole in the zipper flap. The weapon and the pants were introduced in evidence at trial.

Fleming would normally have told his supervisor about the events, but did not specifically recall if he had done so. He also did not recall who his supervisor was that day; supervisor assignments change almost daily.

DISCUSSION

Background

Defendant's pretrial â€