Filed 2/21/18 P. v. Iturralde CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

ROBERTO ITURRALDE,

Defendant and Appellant.

F074972

(Kern Super. Ct. No. MF012035A)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Brian M. McNamara, Judge.
Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Kathleen A. McKenna and Matthew A. Kearney, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Appellant Roberto Iturralde (defendant) was convicted of one count of attempted manufacture of a sharp instrument while confined in state prison, in violation of Penal Code section and 4502, subdivision (b). It also was found true that he had four prior serious felony convictions and had served two prior prison terms. He appeals his conviction, contending the evidence is legally insufficient. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
Defendant was charged in count 1 with possession of a sharp instrument while confined in state prison, and in count 2 with attempting to manufacture a sharp instrument while confined in a state prison. It was further alleged that defendant had four prior serious felony convictions and had served two prior prison terms.
Trial commenced on November 29, 2016. Testimony established that on November 20, 2015, Correctional Officer Benjamin Arreguin was a floor officer at the California Correctional Institution in Tehachapi. On that day, defendant was an inmate at the prison; he was in a single cell with no cell mate. Officers were doing “mass searches” of the cells that day, and Arreguin was assigned to search defendant’s cell.
While searching defendant’s cell, Officer Arreguin shined his flashlight into the air vent above the toilet. Inside the air vent, Arreguin found three bindles wrapped in plastic and a toothbrush. The toothbrush had the bristles removed and the handle was sharpened to a point. Inside the bindles were lenses to glasses; the lenses were split in half and there were three halves. Each half was separately wrapped. On the shelving in defendant’s cell, Arreguin found frames for glasses, with the ear pieces broken off at the hinge.
Prior routine searches of defendant’s cell were conducted on June 27, July 5 and 12, August 15, and October 5 and 23, 2015. During those searches, the air vents were searched and no contraband or prohibited items were found. None of the items found on November 20, 2015, were present. Defendant was the only occupant of the cell during these months. Before defendant was first assigned to the cell, the cell was thoroughly searched.
Officer Arreguin testified that “weapon stock” is something that has been altered and has the potential to be used as, or made into, a weapon. Arreguin testified each lens piece could be made into a weapon by wrapping one end and sharpening the other end, or sharpening one end and tying the lens onto another item. In either case, the lens used as a weapon would cause puncture wounds.
Correctional Sergeant Ignacio Vera opined that the broken lens pieces could be made into weapons. Additionally, Correctional Officer Andres Cantu was of the opinion that the sharp edges of the lenses where they had been broken or cut meant that the lenses themselves were capable of being used as a weapon in their current state. Cantu also believed the sharpened toothbrush was a usable weapon.
Correctional Sergeant Steve Sztukowsi, who works at Corcoran State Prison, testified to an earlier, similar incident involving defendant. On March 8, 2007, defendant was on the busload of inmates coming to Corcoran prison. Defendant was placed in a holding cell, his metal restraints were removed, and plastic restraints called “flex cuffs” were placed on him. Defendant was then instructed to pass through a metal detector. He walked through the metal detector twice and each time there was an alert.
After the alerts, a hand held metal detector was used on defendant. The hand held detector alerted over defendant’s buttocks area. At this point, defendant was placed in a holding cell. When defendant was being removed from the holding cell, there was “an odor of fecal matter” in the holding cell. Defendant was again processed through the metal detector; this time the results were negative.
A check of the holding cell in which defendant had been placed disclosed two bindles covered with fecal matter. Inside one bindle was a piece of an eye glass lens. The second bindle contained metal pieces, like parts of a pen.
On December 6, 2016, the jury found defendant guilty of attempting to manufacture a sharp implement while confined in state prison. The jury was unable to reach a verdict on the count 1 offense, resulting in a mistrial as to count 1. Count 1 later was dismissed.
On January 5, 2017, the trial court imposed sentence. Defendant’s motion to strike the prior convictions was denied. A term of 25 years to life was imposed for the substantive offense, with two, one-year terms for each of the prior prison term enhancements, for a total term of 27 years to life. Various fines and fees were imposed.
Defendant filed a notice of appeal on January 5, 2017.
DISCUSSION
Defendant contends there is insufficient evidence from which the jury could find that he was attempting to manufacture a weapon constituting a sharp instrument from the eyeglass lens pieces.
A. Standard of Review
On appeal, the relevant inquiry governing a challenge to the sufficiency of the evidence “ ‘is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citation.]” (People v. Nguyen (2015) 61 Cal.4th 1015, 1055, cert. den. (2016) [136 S.Ct. 1714], original italics.) “The record must disclose substantial evidence to support the verdict – i.e., 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. [Citation.]” (People v. Zamudio (2008) 43 Cal.4th 327, 357.) “In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence.” (Ibid.) “ ‘[I]t is the jury, not the appellate court which must be convinced of the defendant’s guilt .…’ ” (People v. Nguyen, supra, at pp. 1055–1056.) “A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support” ’ the jury’s verdict. [Citation.]” (Zamudio, supra, at p. 357.)
B. Section 4502
Section 4502, subdivision (b) provides in pertinent part:
“Every person who, while at or confined in any penal institution ... manufactures or attempts to manufacture 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 ....” (Italics added.)
Section 4502, subdivision (a) prohibits an inmate from possessing a similar item. Section 4502, subdivision (c) defines a penal institution to include a state prison.
Section 4502 is intended to protect inmates and correctional staff from assaults with dangerous weapons by prisoners. (People v. Custodio (1999) 73 Cal.App.4th 807, 812.) It was “adopted on the justifiable theory that there is greater danger of imprisoned felons becoming incorrigible and resorting to violence if they are permitted to carry upon their persons deadly weapons.” (People v. Wells (1945) 68 Cal.App.2d 476, 481.) The statute “applies to instruments that can be used to inflict injury and that are not necessary for an inmate to have in the inmate’s possession. [Citation.]” (Custodio, supra, 73 Cal.App.4th at p. 812.) “The fact that the Legislature has made the possession of any weapon, not just firearms, in a penal institution a felony is indicative of the danger weapons present in such a facility.” (People v. Brown (2000) 82 Cal.App.4th 736, 739–740, italics in original.)
Accordingly, section 4502 “absolutely prohibits all prisoners in any state prison, without qualification, from possessing or carrying on their persons certain designated deadly weapons. The intention with which the weapon is carried on the person is not made an element of the offense. Proof of the possession of the prohibited weapon infers that it is carried in violation of the statute.” (People v. Wells, supra, 68 Cal.App.2d at p. 481; see also People v. Steely (1968) 266 Cal.App.2d 591, 594–596; People v. Crenshaw (1946) 74 Cal.App.2d 26, 29.)
“Although criminal statutes are not often construed to impose sanctions in the absence of mens rea or guilty intent, an exception occurs where the statute is an expression of a legislative policy to be served by strict liability. [Citations.] Section 4502 … serves an objective demanding relative inflexibility and relatively strict liability. Its objective is protection of inmates and prison officials against assaults by armed prisoners. [Citations.] It is one of the ‘stringent statutes governing prison safety.’ [Citation.] Its purpose would be frustrated were prisoners allowed to arm themselves in proclaimed or actual fear of anticipated attack by other inmates. Thus a group of California decisions placed section 4502 among the statutes whose violation does not depend upon proof of guilty intent, holding that its prohibition is absolute; that it is enough to show the defendant’s knowing possession of the forbidden weapon; that his purpose of arming himself for self-defense against an anticipated assault is no defense.” (People v. Wells (1968) 261 Cal.App.2d 468, 478–479, disapproved on other grounds in People v. Barnum (2003) 29 Cal.4th 1210, 1219, fn. 1.)
Similarly, the purpose of 4502 subdivision (b) is the same – to protect inmates and guards from armed prisoners. Thus, the Legislature has prohibited in prison not only the possession but also the manufacture of any sharp instrument.
C. Sufficient Evidence of Attempt
Because defendant was charged with attempted manufacture of a sharp instrument, the prosecution had to prove that he: (1) specifically intended to carry out the crime; and (2) committed a direct, but ineffectual, act toward its commission. (§ 21a; People v. Chandler (2014) 60 Cal.4th 508, 516.) Attempted manufacture of a sharp instrument is a specific intent crime. (People v. Beck (2005) 126 Cal.App.4th 518, 521 [“[E]very attempt requires specific intent to commit the target crime, even if the completed crime does not require specific intent.”].)
Defendant contends there is insufficient evidence that he had a specific intent to manufacture a sharp instrument, or that he had taken a direct, but ineffectual step toward manufacturing a sharp instrument.
Specific Intent
The first element, specific intent, is generally inferred from circumstantial evidence. (People v. Cole (1985) 165 Cal.App.3d 41, 48.) There is circumstantial evidence from which the jury could find defendant had the specific intent to commit the crime. Defendant was in constructive possession of the contraband and specifically acquired the contraband, as it was not present during multiple prior searches and was not present when he was assigned to his cell. He took the eyeglass lenses from the frames and broke the lenses in a manner that facilitated creating a sharp implement, then carefully wrapped the broken lenses and hid them in the air vent to avoid discovery. Three correctional officers testified that each piece of broken lens could be made into a weapon; one officer felt the pieces of broken lens were themselves weapons because of their sharp edges. These facts, taken together, constitute sufficient evidence that defendant had the requisite specific intent.
Defendant argues that wrapping the broken eyeglass lenses indicates defendant did not have the intent to manufacture a weapon; instead, it demonstrates he intended to sell or trade the lenses to others. The fact that defendant wrapped the broken eyeglass lenses is also capable of being interpreted as simply a precaution to avoid cutting himself on the sharp edges of the broken lenses when he removed them from the air vent. Defendant also argues there was no evidence he had anything that could be used as a handle to turn the broken lenses into weapons. Defendant cites no authority for the proposition that such a showing is required; however, this assertion is incorrect. Defendant had in his possession a sharpened toothbrush handle and some string, as well as the ear pieces from the eyeglasses broken off at the hinge, all of which could be used to create a sharp instrument by attaching one of the broken lenses.
Although the circumstantial evidence may have been open to different interpretations by the jury, there is substantial evidence to support the interpretation chosen by the jury, i.e., that defendant had the specific intent to manufacture a sharp implement. It is the jury, not the appellate court, which must be convinced of the accused’s guilt beyond a reasonable doubt. (People v. Stanley (1995) 10 Cal.4th 764, 792–793.) This court does not reweigh the evidence and cannot reverse merely because evidence could be reconciled with a contrary finding. (People v. D’Arcy (2010) 48 Cal.4th 257, 293.)
Direct, But Ineffectual Act
As for the second element, a direct but ineffectual act, again there is sufficient evidence of this element. Defendant argues that even if he possessed the broken eyeglass lenses, there was no evidence he took steps beyond mere possession to manufacture a sharp instrument. He is incorrect.
Defendant’s acquisition of the contraband items is a step beyond mere planning. Furthermore, defendant was not merely in possession of eyeglasses or lenses. He had taken the eyeglass lenses from the frames and broken them in half to create weapon stock. He also broke the ear pieces off at the hinges and had sharpened the handle of a toothbrush. Officer Arreguin testified each lens piece could be made into a weapon by wrapping one end and sharpening the other end, or sharpening one end and tying the lens onto another item. In either case, the lens used as a weapon would cause puncture wounds. Officer Cantu was of the opinion that the sharp edges of the lenses where they had been broken or cut meant that the lenses themselves were capable of being used as a weapon in their current state. Cantu also believed the sharpened toothbrush was a usable weapon.
Here, defendant did more than acquire possession of items. He took affirmative steps to alter the items and create “weapon stock,” which Officer Arreguin testified is something that has been altered and has the potential to be used as, or made into, a weapon. Defendant’s altering of the contraband items to create weapon stock is a direct, but ineffectual act, toward manufacturing a sharp instrument.
DISPOSITION
The judgment is affirmed.