P. v. Vasquez
Filed 7/28/06 P. v. Vasquez CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
FIFTH APPELLATE DISTRICT
| THE PEOPLE, Plaintiff and Respondent, v. SERGIO VASQUEZ, Defendant and Appellant. |
F048024
(Super. Ct. No. 04CM9180)
O P I N I O N |
APPEAL from a judgment of the Superior Court of Kings County. Louis F. Bissig, Judge.
Sylvia Koryn, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Appellant Sergio Vasquez was convicted of possessing a sharp instrument while confined in state prison. On appeal, he contends (1) insufficient evidence supported the conviction because there was no evidence he possessed the sharp instrument; (2) the trial court erred by failing to instruct sua sponte that the prosecution was required to prove he knew of the presence of the sharp instrument; (3) the trial court erred by failing to instruct sua sponte that mere proximity to the sharp instrument did not constitute constructive possession; and (4) the trial court committed Blakely[1] error when it imposed the upper term. We affirm.
PROCEDURAL SUMMARY
On January 28, 2005, the district attorney charged appellant with possessing a sharp instrument while confined in state prison (Pen. Code, § 4502, subd. (a)).[2] The jury found appellant guilty, and appellant admitted a prior strike (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The trial court sentenced appellant to the upper term of four years, then doubled the term to eight years due to the prior strike. The court ordered that the term be served consecutively to appellant's previous conviction, for a total of 10 years.
FACTS
Appellant was an inmate at Avenal State Prison. The inmates were housed in dormitories that held 16 inmates in upper and lower bunk beds in an open area. Everyday appellant associated with two other inmates, Yanez and Duran.
On July 25, 2004, at about 11:00 a.m., the correctional officer on duty was conducting a security check of the dormitory. The dormitory was not full at the time because about three-quarters of the inmates were eating lunch in a separate building. Appellant was in the dormitory, wearing boxer shorts and sitting on his bunk bed. As the officer entered the dormitory, appellant's view of him was blocked by a towel hanging from the end of his bunk bed. Appellant noticed the officer when he was about three feet away, at which time appellant quickly put something into his shorts. The officer asked appellant to stand up so he could pat him down. Appellant stood up with his back to the officer and said, â€
