People v. Strunk

• Decision Date: 03 January 1995
• Docket Number: No. D019654,D019654
• Citation: 36 Cal.Rptr.2d 868,31 Cal.App.4th 265
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Gregory John STRUNK, Defendant and Appellant.

Page 868

36 Cal.Rptr.2d 868

31 Cal.App.4th 265

The PEOPLE, Plaintiff and Respondent, v. Gregory John STRUNK, Defendant and Appellant.

No. D019654.

Court of Appeal, Fourth District, Division 1, California.

Jan. 3, 1995.

Rehearing Denied Jan. 20, 1995.

J. Michael Crofts, under appointment by the Court of Appeal, San Diego, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Asst. Atty. Gen., Raquel M. Gonzales and Joyce N. Burnett, Deputy Attys. Gen., for plaintiff and respondent.

HUFFMAN, Associate Justice.

A jury convicted Gregory John Strunk of possessing a sharp instrument while lawfully confined in a state prison. (PEN.CODE, § 4502.)¹ In a bifurcated court proceeding, Strunk also admitted the truth of a prior prison term enhancement allegation. (§ 667.5, subd. (b).) The trial court sentenced him to a total five-year consecutive term.

Strunk appeals, contending the trial court committed prejudicial error by failing to sua sponte instruct the jury on the lesser included offense of attempt, by instructing the jury under CALJIC No. 2.90 on the reasonable doubt standard, and by imposing a sentence in violation of the California Rules of Court ² and therefore in excess of its jurisdiction. We affirm Strunk's conviction, but remand for resentencing.

FACTS

On Wednesday, February 24, 1993, Strunk was an inmate at the R.J. Donovan Correctional Facility in San Diego County. On that date, Correctional Officer Carl A. Berner was assigned to the "Facility 2 Education Compound" as a roving guard to oversee the security and safety of instructors and inmates in the compound's six classrooms. Two shifts of vocational welding were taught in one of the classrooms. The "A" shift used the classroom each week from 7:30 or 8 a.m. on Sunday until 11 a.m. on Wednesday. Strunk was enrolled in the "B" shift, which used the welding classroom each week from 12:30 or 1 p.m. on Wednesday afternoon and all day Thursday, Friday and Saturday. Between the end of shift "A" and the start of shift "B" only the instructor was present in the welding classroom.

Close to 1 p.m. on the date in question, Berner stopped outside the welding classroom, peered through one of its expanded metal gates and saw an inmate named Donald Dillon standing near one of the tables used for metal work. He was facing the instructor, Joe Hall, who was about 15 feet away issuing supplies to other inmates. About six feet behind Dillon, Berner saw Strunk, who was wearing protective goggles and welding gloves, working at a grinding bench by the wall with his back to him. He noticed a shower of sparks going up in the air and heard a high-pitched sound, similar to someone grinding a thin piece of metal. Based on his prison guard experience, Berner concluded Dillon was acting as a lookout for Strunk.

As Berner opened the classroom gate, he saw Dillon notice him and bend down quickly. Berner immediately headed toward Strunk. As he moved closer to Strunk, Berner heard the grinding stop and saw the sparks disappear. He observed Strunk moving his arms as if he were removing something from the "vice [sic ]." He then saw Strunk walk around the end of the grinding bench, behind the grinder's protective transparent shield, and bend down next to a welding machine by the wall. At that same time Berner heard the sound of metal hitting the concrete floor near where Strunk was kneeling down.

As Berner walked directly toward the noise, Strunk walked past him. Berner pulled out his flashlight, got on his hands and knees and looked underneath the welding machine, where he found a flat piece of metal. He reached under the machine, pulled out the metal piece, which was "too hot to hold on to for very long," and placed it in his left front pocket. Recognizing the metal to be "an inmate-manufactured weapon or a shank[,]" ³ Berner immediately questioned and searched Strunk. Because the metal was "too hot to keep close to [his] body" for more than about 10 seconds, Berner handed the metal shank to the instructor who had walked towards him. The instructor set the metal weapon down on a nearby bin to cool. Berner then returned it to his pocket and escorted Strunk to the "Facility 2 Program Office." Strunk was later transferred to Administrative Segregation (Ad-seg).

While in Ad-seg, correctional officers intercepted two notes Strunk had written for delivery to Dillon, which in effect told Dillon to keep quiet or say he did not have any knowledge of a weapon, he was waiting to use the extension cord for an electric saw and he was looking at the instructor because there were a lot of sparks and he was not wearing goggles. ⁴ Strunk was subsequently charged in this criminal action and proceeded to jury trial.

In addition to the various correctional officers who testified about the above facts, the instructor in the welding class at the time of the incident also testified, confirming Strunk was the only inmate who was using a grinder before Berner found the shank. He stated the sharp metal object could not have been left under the welding machine by someone from the earlier shift because it was too hot when found.

Berner, who was recalled twice, testified that although Dillon was aware of his presence in the welding classroom, Strunk was not. Strunk, who testified in his own defense, admitted he did not know Berner was there until after he turned around and walked past him to use an electric saw. He denied he made the knife found by Berner, claiming he was only working on his assigned project and that he had seen two inmates working earlier that day by the welding machine under which it was found. He asserted the welding machine heated up everything in its vicinity when it was in use. He further explained he wrote the notes to Dillon to clue him in about the "politics" of the matter, telling him that their stories should coincide and not bring attention to prison gangs as they had been threatened.

Dillon testified in Strunk's defense, ⁵ denying he acted as a lookout the day of the incident or that he had seen Berner enter the classroom. Although he had not received the notes written by Strunk and denied talking with Strunk since the incident, his testimony tracked the information stated in the notes.

Both Dillon's and Strunk's credibility were challenged through rebuttal and the fact of their prior convictions. The parties stipulated Strunk was lawfully confined in a state prison at the time of the incident.

DISCUSSION

I Jury Instructions

Strunk claims the trial court committed prejudicial instructional error by failing to give the jury the lesser included offense of attempt instruction and by giving CALJIC No. 2.90. The general rule is that in a criminal case the trial court must instruct on the "principles of law relevant to the issues raised by the evidence [citations] and has the correlative duty 'to refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues.' [Citation.]" (People v. Saddler (1979) 24 Cal.3d 671, 681, 156 Cal.Rptr. 871, 597 P.2d 130.) Further, " '[i]t is an elementary principle of law that before a jury can be instructed that it may draw a particular inference, evidence must appear in the record which, if believed by the jury, will support the suggested inference. [Citation.]' [Citation.]" (Ibid.) With these preliminary rules in mind, we address Strunk's instructional error contentions.

First, we summarily dispose of his argument that the trial court instructing the jury under CALJIC No. 2.90 was reversible constitutional error. Since the filing of his opening brief, the United States Supreme Court has determined that instruction defining reasonable doubt in California is constitutional. (Victor v. Nebraska (1994) 511 U.S. 1, ---- - ----, 114 S.Ct. 1239, 1242-1250, 127 L.Ed.2d 583, 590-599.)

Turning to his other instructional claim, we note that although it has long been the rule that a trial court must instruct on any necessarily included offenses or attempts (People v. Wickersham (1982) 32 Cal.3d 307, 324, 185 Cal.Rptr. 436, 650 P.2d 311), such must only be done when there is evidence sufficient to support a conviction on such as opposed to the charged offense, i.e, evidence deserving of consideration that such was lesser than or an attempt of that charged. (Id. at pp. 324-325, 185 Cal.Rptr. 436, 650 P.2d 311; see also People v. Bunyard (1988) 45 Cal.3d 1189, 1232, 249 Cal.Rptr. 71, 756 P.2d 795; People v. Leach (1985) 41 Cal.3d 92, 106, 221 Cal.Rptr. 826, 710 P.2d 893.) While the same sua sponte jury instruction rule generally applies to attempts as well as to lesser included offenses (see, e.g., § 1159), an attempt is a specific intent crime and does not fit within the definition of a necessarily included offense of a general intent crime.

In this case, Strunk was charged with violating section 4502, which provides in pertinent part:

"Every person confined in a state prison or who, ... while under the custody of prison officials, officers or employees, possesses or carries upon his person or has under his custody or control any ... sharp instrument, ... is guilty of a felony...." ⁶

To show a violation of this statute, the prosecution must prove the defendant was confined in a state prison and that he had knowledge of the prohibited object in his possession. (People v. Reynolds (1988) 205 Cal.App.3d 776, 779, 252 Cal.Rptr. 637.) While the knowledge requirement is consistent with general intent instructions, some specific instruction concerning knowledge of actual or constructive possession must also be given. (Id. at pp. 780-782, 252 Cal.Rptr. 637.) Such requirement, however, does not make it a specific intent crime.

Here, the court instructed the jury on the elements of section 4502, including the requirement of "knowing" poss...