People v. Mendoza

• Decision Date: 19 December 2013
• Docket Number: F064729
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. ANTHONY M. MENDOZA, Defendant and Appellant.

THE PEOPLE, Plaintiff and Respondent, v. ANTHONY M. MENDOZA, Defendant and Appellant.

F064729

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Filed: December 19, 2013

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. MF009906A)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Thomas S. Clark, Judge.

David H. Goodwin, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Jesse Witt, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Anthony M. Mendoza was convicted by jury of two counts of manufacturing or attempting to manufacture a sharp instrument while in prison (Pen.Code,¹ § 4502, subd. (b)). In addition, the jury found true an allegation that he had suffered a prior serious or violent felony within the meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(i)). The trial court sentenced defendant to a total term of seven years four months.

On appeal, defendant contends (1) section 4502, subdivision (b) is unconstitutionally vague and overbroad, (2) the trial court's instructions regarding the elements of that offense were confusing and deceptive; (3) the trial court erred in failing to instruct the jury on the elements of attempt; (4) the trial court erred in instructing the jury with the specific intent instruction instead of the general intent instruction; (5) the trial court erred in denying a motion to strike gang testimony; and (6) he was improperly convicted of two counts of manufacturing a sharp instrument. We agree defendant could only be convicted of one count of manufacturing a sharp instrument, therefore we will reverse the second count. We find the remaining arguments without merit and otherwise affirm the judgment.

FACTS

Defendant was an inmate housed in the Segregated Housing Unit (SHU) at the California Correctional Institute (CCI) at Tehachapi in May of 2011. The SHU is a maximum security area, and inmates housed there are closely watched and are always in full restraints.

On May 5, 2011, correctional officer Richard Litton conducted a cell search of the cell shared by defendant and another inmate. During that search, Litton discovered two items of contraband. The items were approximately two and a quarter inches long, and about one-eighth of an inch wide, and both were sharpened to a point on one end. It appeared the items had been made from the metal arm of an eyeglass frame. One of the objects was found in a shelving unit, inside of a small paper cup near items belonging to defendant. The other was found embedded in the window caulking near the bunkoccupied by defendant. The items appeared to have been sharpened by rubbing them against something. Both items were in plain view within the cell.

According to the policy within the SHU, anything altered from its original state is considered contraband, and anything sharpened to a point is considered a weapon. As such, both items were confiscated by Litton.

Correctional Sergeant Shawn Bronson testified that Litton showed him the confiscated objects and he concurred they were both sharpened to a point. Bronson asked defendant about the objects and defendant stated they were his sewing needles. According to Bronson sewing needles are prohibited in the SHU, and possession of such items would subject an inmate to disciplinary action.

Correctional Lieutenant Joshua Tyree testified as an expert regarding prison-made weapons. He has over 13 years of experience as a correctional officer and is a member of both the institutional gangs investigation unit and the Investigative Services Unit at CCI. The two units often work cooperatively. Tyree teaches classes regarding prison contraband and is tasked with determining if weapons can be made out of items issued in the prison. He has personally made weapons out of ordinary items inmates possess or have access to, such as snack chip or ramen noodle bags, milk cartons, toothbrushes, and many other items. He also speaks to inmates regarding weapons in the prison and learns how inmates are making them.

In the SHU weapons tend to be smaller as inmates do not have access to larger items to make weapons and they are also easier to conceal on their person. Tyree viewed the items at issue in this case and opined they were the beginnings of a weapon. They were not yet completed weapons because they would need some sort of handle before they could act as a puncturing or stabbing device. A handle could be made quickly out of common items such as plastic, cloth, or other items SHU inmates possessed. Both objects were sharpened to a point and the metal they were made from was strong. The objects could also be used as blow darts or projectiles if shot with a piece of elastic.Tyree opined the objects were capable of inflicting serious injury as they could be used to stab a person and had the ability to cause major internal bleeding if they struck an artery.

Tyree did not believe the objects were sewing needles as neither one contained an eyelet to attach thread. Tyree had confiscated sewing needles before, the majority of which were made from paper clips. These items were larger and appeared to be made from the metal arm of a pair of eyeglasses. The metal was strong and would take considerable effort to bend. Tyree noted there was a groove in the metal of one object, but it appeared to have been manufactured as part of the eyeglasses. Tyree conceded it would be possible to add an eyelet to the items.

Defendant testified in his own defense. He is currently an inmate at CCI and is serving a "long sentence" for attempted murder as well as spousal abuse. He acknowledged the items in question belonged to him and he had made them from the arm of a pair of eyeglasses. Defendant opined the metal was aluminum and was very easy to break. He was in the process of making the objects into sewing needles. He had previously made two other sewing needles and given them to another inmate. Defendant needed two pieces of metal, one to make the needle, and the other to make the eyelet in the first object. He made the objects by breaking the metal and grinding them down to points. He had also put a groove in the metal to make it easier to make the eyelet. Once he finished the sewing needle, he was going to make another needle out of the eyelet tool.

Defendant claimed he needed the needles to alter his clothing and to make a beanie out of socks and pants out of sheets. He acknowledged he was not allowed to have a sewing needle in the SHU, nor was he allowed to alter his clothing. Once the correctional officers observed him wearing any clothing he made or altered, it would be confiscated.

DISCUSSION

I. Section 4502 Is Constitutional

Defendant argues section 4502 is unconstitutionally vague and overbroad as the statute fails to define the term "sharp instrument." We disagree.

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 ... sharp instrument ... is guilty of a felony ...."

"'[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.' [Citations.]" (People v. Rodriquez (1975) 50 Cal.App.3d 389, 398.) Thus, criminal statutes must be reasonably definite, both in providing a standard of conduct for persons subject to the statute, and in providing guidelines for law enforcement agencies and personnel. (People v. Custodio (1999) 73 Cal.App.4th 807, 811 (Custodio).) "The requisite certainty may be supplied by reference to either long established usage [citations], or legislative purpose [citation]." (People v. Rodriquez, supra, at p. 398.) "Use of a generic term does not, ipso facto, make a statute vague. [Citation.]" (Id. at p. 399.) With regard to section 4502 specifically, "[t]he Legislature was not required to list every type of sharp instrument in the statutory prohibition. All that is required is that the crime must be clearly defined so that any reasonable person will know what constitutes a violation." (People v. Harris (1950) 98 Cal.App.2d 662, 666.)

We note defendant's entire argument regarding vagueness and overbreadth centers upon the premise he was convicted of possession of a sharp instrument in a penal institution. However, defendant was not charged with, or convicted of, possessing a sharp instrument; rather he was convicted of manufacturing or attempting to manufacture a sharp instrument. To the extent his arguments are applicable to the section he was convicted of violating, we will address those claims only.

Defendant initially argues the lack of a definition of the term "sharp instrument" makes the statute unconstitutionally vague as "the statute leaves to the prosecution, the judge and the jury the impossible task of determining what objects are to be included within its scope." Similar challenges to the statute have been repeatedly rejected over thelast 60 years. (People v. Crenshaw (1946) 74 Cal.App.2d 26; People v. Harris, supra, 98 Cal.App.2d 662; People v. Morales (1967) 252 Cal.App.2d 537; Custodio, supra, 73 Cal.App.4th 807.)

In Custodio, the defendant challenged the constitutionality of section 4502, subdivision (a) prohibiting the possession of a sharp instrument. Like defendant, Custodio argued the term "sharp instrument"...