Statute prohibiting possession of a sharp instrument by a prisoner is not unconstitutionally vague.
Cite as
1999 DJDAR 7469Published
Sep. 2, 1999Filing Date
Jul. 22, 1999Summary
The C.A. 3rd has held, in the published portion of its opinion, that a statute prohibiting possession of a sharp instrument by a prisoner was not unconstitutionally vague, and a defendant's conviction for possessing the barrel of a ball point pen with a sharp piece of metal attached to it was valid.
Regino Custodio was a state prisoner. During a search of his cell, prison officials found a plastic barrel of a ball point pen with a sharp piece of metal firmly attached to it. Custodio was charged with possession of a sharp instrument by a prisoner. The prosecution also alleged that Custodio had been previously convicted of a serious felony and had served two prior prison terms. At trial, an expert testified that the sharp piece of metal attached to the barrel was very stiff and had a tapered shape so that, once it started going into something, there was nothing to stop it from going as hard as someone pushed it. Custodio testified it was a "cup pick," which prisoners use to decorate plastic items. Both the expert and a corrections officer testified that the tip of the pen was much firmer and longer than the cup picks used by other prisoners. Custodio was convicted and sentenced to an aggregate prison term of eight years.
The C.A. 3rd affirmed as modified. Penal Code Section 4502(a) provides that it is a felony for a prisoner to possess any weapons, including "any dirk or dagger or sharp instrument." That statute is intended to protect prisoners and prison staff from assaults by prisoners. Due process requires that criminal statutes be definite enough to "give the person of ordinary intelligence a reasonable opportunity to know what is prohibited," and "provide definite guidelines for the police in order to prevent arbitrary and discriminatory enforcement." Unless a statute "facially tenders a present total conflict with constitutional provisions," the problem with the statute is ordinarily cured on a case-by-case analysis. However, a statute may be declared entirely invalid if case-by-case adjudication would entail vague or uncertain future application of the statute. Viewing the statute according its fair meaning and giving effect to its goal, a person of ordinary intelligence would know what it prohibits. Such a person would know, for example, that it did not apply to a sharpened pencil, which was ordinarily used for legitimate purposes, unless that pencil was used as a weapon. Although the cup pick was an artistic tool, it was found in Custodio's cell-not in the prison craft room-and Custodio conceded that even cup picks were confiscated when found in prisoners' cells. Therefore, Custodio should have known that he could not lawfully possess the sharp object in his cell. As such, Section 4502 was neither unconstitutionally vague on its face nor vague as applied. Finally, in the unpublished portions of its opinion, the appellate court held that the trial court properly imposed a sentence under the three strikes law and refused to strike Custodio's prior conviction; but the trial court was incorrect in its calculation of his presentence credits.
—
THE PEOPLE,
Plaintiff and Respondent,
v.
REGINO CUSTODIO,
Defendant and Appellant.
No. C027999
(Super. Ct. No. CC-012258)
California Court of Appeal
Third Appellate District
(Lassen)
Filed July 22, 1999
CERTIFIED FOR PARTIAL PUBLICATION*
APPEAL from a judgment of the Superior Court of Lassen County, Robert A. Barclay, Judge. Modified and Affirmed.
James F. Wilson, under appointment of the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren and Bill Lockyer, Attorneys General, George H. Williamson and David P. Druliner, Chief Assistant Attorneys General, Robert R. Anderson, Senior Assistant Attorney General, Stan Cross and Nanette Winaker, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant Regino Custodio of possessing a sharp instrument while confined in a penal institution (Pen. Code, § 4502, subd. (a); further section references are to this code) and found that he had a prior serious felony conviction within the meaning of the "three strikes law" (§ 667, subds. (d) & (e)) and had served two prior separate prison terms within the meaning of section 667.5, subdivision (b). He was sentenced to an aggregate prison term of eight years.
In the published part of this opinion, we reject defendant's assertion that section 4502, subdivision (a) is unconstitutionally vague. As we shall explain, viewing the statute according to the fair import of its terms and its purpose, a person of ordinary intelligence would know what it does and does not prohibit. Considering the nature of the item found in defendant's cell (including its tapered shape and the length and firmness of its sharp metal point) and the fact it is not a necessary possession for an inmate, the person would know it is a sharp instrument which falls within the prohibition of section 4502, subdivision (a).
In the unpublished portion of our opinion, we find merit in only one of defendant's remaining contentions. The People concede, and we agree, the trial court erred in failing to award defendant presentence credits. Hence, we shall modify the judgment to award the appropriate credits, and affirm as modified.
FACTS During a search of defendant's cell, a correctional officer found a plastic barrel of a ball-point pen with a piece of metal like a sewing machine needle sticking out of it. An expert opined that the object was "very capable of being used as a weapon" because the metal was extremely stiff, had been affixed by melting the plastic of the pen barrel, and the entire object had a tapered shape so that "once it starts, there is nothing going to stop it from going as hard as one [] push[es] it."
Both the correctional officer and the expert testified about "cup picks," which generally are used by inmates to decorate plastic items. According to the expert, a cup pick "usually[]has a small, a pointed point that has a blunt backing on it. Might stick out an 8th to a quarter inch" and ordinarily is used by inmates to decorate plastic items.
The expert never had seen a cup pick as "firm" as the item seized from defendant's cell, and agreed that "[t]ypically cup picks have softer or less firm tips" than the item in question.
Defendant testified that he used the item for "artistic talents" to engrave his cup and sunglasses. He did not believe it was a weapon or sharp instrument.
DISCUSSION I Section 4502, subdivision (a) provides in pertinent part: "Every person who, while at or confined in any penal institution . . . possesses or carries upon his or her person or has under his or her custody or control 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 . . . ."
Defendant claims the term "sharp instrument" in this section violates due process of law because it is unconstitutionally vague on its face and as applied in his case.
"Due process requires that criminal statutes be reasonably definite. . . . In order for a criminal statute to satisfy the dictates of due process in this regard, it must meet two requirements. 'First, the provision must be definite enough to provide a standard of conduct for those whose activities are proscribed. . . . Because we assume that individuals are free to choose between lawful and unlawful conduct, "we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he [or she] may act accordingly. Vague laws trap the innocent by not providing fair warning." . . . [¶] Second, the statute must provide definite guidelines for the police in order to prevent arbitrary and discriminatory enforcement. . . .'" (People v. Bamba (1997) 58 Cal.App.4th 1113, 1120, citations omitted.)
Facial attacks on section 4502 based upon claims that it is unconstitutionally vague have been rejected over the past 50 years. (E.g., People v. Steeley (1968) 266 Cal.App.2d 591, 596-597; People v. Morales (1967) 252 Cal.App.2d 537, 539-541; People v. Crenshaw (1946) 74 Cal.App.2d 26, 27-28.) "Unless a statute facially tenders a present total conflict with constitutional provisions, any overbreadth in a statute is ordinarily cured through case-by-case analysis of the fact situations to which the statute is applied." (In re Marriage of Siller (1986) 187 Cal.App.3d 36, 49.)
While a statute imposing criminal liability "may be declared invalid in [its] entirety if piecemeal adjudication of the legality of the statute would entail the vague or uncertain future application of the statute" (In re Marriage of Siller, supra, 187 Cal.App.3d at p. 49), we see no such danger with respect to section 4502, subdivision (a).
Defendant's complaint is that the term "sharp instrument" is unconstitutionally vague on its face because it "fails to give adequate guidance to law enforcement as to the standards for enforcement." For example, he points out that officers apparently ignore an inmate's possession of a sharpened pencil even though it is a "sharp instrument" capable of being used as a weapon. Thus, he complains, the absence of a statutory definition for sharp instrument "places almost unfettered discretion in the hands of law enforcement," "permits and encourages an arbitrary and discriminatory enforcement of the law," and leaves an inmate to speculate whether a particular sharp object violates the statute. We are unpersuaded.
"In analyzing whether a statute is sufficiently definite to pass constitutional muster, we look not only at the language of the statute but also to legislative history and California decisions construing the statute." (People v. Bamba, supra, 58 Cal.App.4th at p. 1120.) By prohibiting prison inmates from possessing any instrument or weapon of the kind specified in the statute, section 4502, subdivision (a) is intended to protect inmates and correctional staff "from the peril of assaults with dangerous weapons by armed prisoners[.]" (People v. Wells (1945) 68 Cal.App.2d 476, 481.) It 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. (People v. Morales, supra, 252 Cal.App.2d at p. 541.)
Thus, viewing the statute "according to the fair import of [its] terms, with a view to effect its objects and to promote justice" (§ 4), a person of ordinary intelligence would know what is and what is not prohibited by the statute. For example, the person would understand that section 4502, subdivision (a) does not apply to a sharpened pencil--which ordinarily is used for a legitimate and necessary purpose--unless the inmate uses the pencil as a weapon. (Cf. People v. Grubb (1965) 63 Cal.2d 614, 620-621.) Accordingly, the statute is not unconstitutionally vague on its face.
Nor is the statute vague as applied in this case. Asserting that a "cup pick" is a device made by an inmate for the ordinary purpose of using it to engrave designs on plastic items, such as cups, and suggesting that the "cup pick" found in his possession "was no more dangerous than is a pen or pencil," defendant argues (1) he was required to speculate whether it was prohibited by section 4502, subdivision (a), and (2) he was prosecuted "purely on the whim of a prison guard who chose to deal with this
situation as a felony criminal offense rather than simply as an administrative matter, as apparently are the other 'cup pick' cases." Again, we disagree.
Evidence established that the sharp instrument seized from defendant's cell was capable of being used to inflict injury as a stabbing device, and that the instrument was not necessary for defendant to have in his possession. This is not a situation where a device used for artistic purposes was possessed in a prison craft room. In fact, defendant concedes that all "cup picks" found in prison cells are confiscated by the authorities.
Therefore, defendant reasonably should have known he could not lawfully possess the sharp instrument in his cell. There is no evidence to support his suggestion that the possession of a "cup pick" by an inmate does not ordinarily lead to prosecution pursuant to section 4502, subdivision (a).
Considering the nature of the item found in defendant's cell (including its tapered shape and the length and firmness of its sharp metal point) and the fact it is not a necessary possession for an inmate, a person of ordinary intelligence would know it is a sharp instrument which falls within the prohibition of section 4502, subdivision (a).
[This Part Is Not Certified for Publication]
II* As pertinent to this case, the three strikes law applies to a prior conviction for a "felony in which the defendant personally inflicts great bodily injury on any person" or "personally uses a dangerous or deadly weapon." (§ 667, subd. (d)(1), 1192.7, subds. (c)(8) & (c)(23).)
Defendant's conviction in 1993 for assault with a deadly weapon was alleged as the basis for the prior serious felony conviction allegation. (§ 667, subds. (b)-(i).)
According to defendant, the trial court committed reversible error in failing to instruct the jury that, to determine whether the prior serious felony conviction allegation was true, the jury had to determine whether defendant personally used a deadly weapon in committing the 1993 assault with a deadly weapon.
The People disagree, claiming that the jury simply had to determine whether defendant was convicted of assault with a deadly weapon, and that it was the trial court's role to determine whether defendant personally inflicted great bodily injury, or personally used the deadly weapon, thus making the conviction a serious felony within the meaning of the three strikes law.
The People are correct. (People v. Jackson (1999) 71 Cal.App.4th 108, 111-114 [not yet final]); cf. People v. Wiley (1995) 9 Cal.4th 580, 592; People v. Leever (1985) 173 Cal.App.3d 853, 871-873.)
In any event, defendant suffered no prejudice because, while testifying, defendant admitted he stabbed his brother in 1993, thus admitting he personally used a deadly weapon and personally inflicted great bodily injury. (Cf. People v. Wims (1995) 10 Cal.4th 293, 314-315.)
III* Next, defendant claims the trial court abused its discretion in refusing to strike the prior serious felony conviction
for purposes of sentencing. (§ 1385, subd. (a) [hereafter § 1385(a)].) He argues the sentence is "grossly disproportionate to the nature and circumstances of [his] misconduct," which he characterizes as a "technical violation" of section 4502, subdivision (a).
"A court's discretion to strike prior felony conviction allegations in furtherance of justice is limited. Its exercise must proceed in strict compliance with section 1385(a), and is subject to review for abuse." (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530.) "'"[T]he language of [section 1385(a)], 'in furtherance of justice,' requires consideration both of the constitutional rights of the defendant, and the interests of society represented by the People, in determining whether there should be a dismissal." At the very least, the reason for dismissal must be "that which would motivate a reasonable judge."'" (Id., at pp. 530-531, citations and italics omitted.)
In determining whether to strike a prior, the court "must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the . . . spirit [of the three strikes law], in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.)
Defendant was 39 years old at sentencing. His prior convictions are numerous and varied: theft and receiving stolen property in 1978; malicious mischief to a vehicle in 1979; resisting a public officer in 1980; misdemeanor grand theft in 1982; providing false identification to a peace officer and fighting in public in 1986; receiving stolen property in 1987; four counts of receiving stolen property in 1989; petit theft in 1991; assault with a deadly weapon in 1993; and violating section 415 by fighting in 1996. He had served three prior prison terms.
Defendant's current offense was not de minimis as he suggests. His effort to compare the inmate-made sharp instrument to a pencil or pen is unconvincing. Evidence established that the instrument seized from his cell was particularly suitable for stabbing, with its tapered body and firm needle point. The occurrence of prison violence and serious physical injury inflicted with inmate-made instruments is a serious matter of common knowledge. Hence, his possession of the sharp instrument was not "benign" as he claims.
And his suggestion that he is not a "dangerous criminal" rings hollow as his record reflects prior convictions for acts of violence.
Considering all the circumstances, the trial court did not abuse its discretion in declining to strike the prior serious felony conviction, and in sentencing defendant to a prison term of eight years.
IV* However, defendant correctly contends, and the People concede, the trial court erred in failing to award presentence credits from defendant's previously-scheduled prison release date of August 30, 1997, until his sentencing in this case on October 23, 1997. Defendant was entitled to 55 days of custody credit and 26 days of conduct credit, for a total of 81 days of presentence credit. [End of part IV.]
[End of Part Not Certified for Publication]
DISPOSITION The judgment is modified to give defendant credit for 55 days of actual custody and 26 days for good conduct, a total of 81 days of presentence credit. As modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect the modification, and to send a copy of the amended abstract to the Department of Corrections.
We concur:
SIMS , J.
NICHOLSON , J.
* Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of parts II-IV.
CERTIFIED FOR PARTIAL PUBLICATION*
APPEAL from a judgment of the Superior Court of Lassen County, Robert A. Barclay, Judge. Modified and Affirmed.
James F. Wilson, under appointment of the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren and Bill Lockyer, Attorneys General, George H. Williamson and David P. Druliner, Chief Assistant Attorneys General, Robert R. Anderson, Senior Assistant Attorney General, Stan Cross and Nanette Winaker, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant Regino Custodio of possessing a sharp instrument while confined in a penal institution (Pen. Code, § 4502, subd. (a); further section references are to this code) and found that he had a prior serious felony conviction within the meaning of the "three strikes law" (§ 667, subds. (d) & (e)) and had served two prior separate prison terms within the meaning of section 667.5, subdivision (b). He was sentenced to an aggregate prison term of eight years.
In the published part of this opinion, we reject defendant's assertion that section 4502, subdivision (a) is unconstitutionally vague. As we shall explain, viewing the statute according to the fair import of its terms and its purpose, a person of ordinary intelligence would know what it does and does not prohibit. Considering the nature of the item found in defendant's cell (including its tapered shape and the length and firmness of its sharp metal point) and the fact it is not a necessary possession for an inmate, the person would know it is a sharp instrument which falls within the prohibition of section 4502, subdivision (a).
In the unpublished portion of our opinion, we find merit in only one of defendant's remaining contentions. The People concede, and we agree, the trial court erred in failing to award defendant presentence credits. Hence, we shall modify the judgment to award the appropriate credits, and affirm as modified.
FACTS During a search of defendant's cell, a correctional officer found a plastic barrel of a ball-point pen with a piece of metal like a sewing machine needle sticking out of it. An expert opined that the object was "very capable of being used as a weapon" because the metal was extremely stiff, had been affixed by melting the plastic of the pen barrel, and the entire object had a tapered shape so that "once it starts, there is nothing going to stop it from going as hard as one [] push[es] it."
Both the correctional officer and the expert testified about "cup picks," which generally are used by inmates to decorate plastic items. According to the expert, a cup pick "usually[]has a small, a pointed point that has a blunt backing on it. Might stick out an 8th to a quarter inch" and ordinarily is used by inmates to decorate plastic items.
The expert never had seen a cup pick as "firm" as the item seized from defendant's cell, and agreed that "[t]ypically cup picks have softer or less firm tips" than the item in question.
Defendant testified that he used the item for "artistic talents" to engrave his cup and sunglasses. He did not believe it was a weapon or sharp instrument.
DISCUSSION I Section 4502, subdivision (a) provides in pertinent part: "Every person who, while at or confined in any penal institution . . . possesses or carries upon his or her person or has under his or her custody or control 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 . . . ."
Defendant claims the term "sharp instrument" in this section violates due process of law because it is unconstitutionally vague on its face and as applied in his case.
"Due process requires that criminal statutes be reasonably definite. . . . In order for a criminal statute to satisfy the dictates of due process in this regard, it must meet two requirements. 'First, the provision must be definite enough to provide a standard of conduct for those whose activities are proscribed. . . . Because we assume that individuals are free to choose between lawful and unlawful conduct, "we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he [or she] may act accordingly. Vague laws trap the innocent by not providing fair warning." . . . [¶] Second, the statute must provide definite guidelines for the police in order to prevent arbitrary and discriminatory enforcement. . . .'" (People v. Bamba (1997) 58 Cal.App.4th 1113, 1120, citations omitted.)
Facial attacks on section 4502 based upon claims that it is unconstitutionally vague have been rejected over the past 50 years. (E.g., People v. Steeley (1968) 266 Cal.App.2d 591, 596-597; People v. Morales (1967) 252 Cal.App.2d 537, 539-541; People v. Crenshaw (1946) 74 Cal.App.2d 26, 27-28.) "Unless a statute facially tenders a present total conflict with constitutional provisions, any overbreadth in a statute is ordinarily cured through case-by-case analysis of the fact situations to which the statute is applied." (In re Marriage of Siller (1986) 187 Cal.App.3d 36, 49.)
While a statute imposing criminal liability "may be declared invalid in [its] entirety if piecemeal adjudication of the legality of the statute would entail the vague or uncertain future application of the statute" (In re Marriage of Siller, supra, 187 Cal.App.3d at p. 49), we see no such danger with respect to section 4502, subdivision (a).
Defendant's complaint is that the term "sharp instrument" is unconstitutionally vague on its face because it "fails to give adequate guidance to law enforcement as to the standards for enforcement." For example, he points out that officers apparently ignore an inmate's possession of a sharpened pencil even though it is a "sharp instrument" capable of being used as a weapon. Thus, he complains, the absence of a statutory definition for sharp instrument "places almost unfettered discretion in the hands of law enforcement," "permits and encourages an arbitrary and discriminatory enforcement of the law," and leaves an inmate to speculate whether a particular sharp object violates the statute. We are unpersuaded.
"In analyzing whether a statute is sufficiently definite to pass constitutional muster, we look not only at the language of the statute but also to legislative history and California decisions construing the statute." (People v. Bamba, supra, 58 Cal.App.4th at p. 1120.) By prohibiting prison inmates from possessing any instrument or weapon of the kind specified in the statute, section 4502, subdivision (a) is intended to protect inmates and correctional staff "from the peril of assaults with dangerous weapons by armed prisoners[.]" (People v. Wells (1945) 68 Cal.App.2d 476, 481.) It 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. (People v. Morales, supra, 252 Cal.App.2d at p. 541.)
Thus, viewing the statute "according to the fair import of [its] terms, with a view to effect its objects and to promote justice" (§ 4), a person of ordinary intelligence would know what is and what is not prohibited by the statute. For example, the person would understand that section 4502, subdivision (a) does not apply to a sharpened pencil--which ordinarily is used for a legitimate and necessary purpose--unless the inmate uses the pencil as a weapon. (Cf. People v. Grubb (1965) 63 Cal.2d 614, 620-621.) Accordingly, the statute is not unconstitutionally vague on its face.
Nor is the statute vague as applied in this case. Asserting that a "cup pick" is a device made by an inmate for the ordinary purpose of using it to engrave designs on plastic items, such as cups, and suggesting that the "cup pick" found in his possession "was no more dangerous than is a pen or pencil," defendant argues (1) he was required to speculate whether it was prohibited by section 4502, subdivision (a), and (2) he was prosecuted "purely on the whim of a prison guard who chose to deal with this
situation as a felony criminal offense rather than simply as an administrative matter, as apparently are the other 'cup pick' cases." Again, we disagree.
Evidence established that the sharp instrument seized from defendant's cell was capable of being used to inflict injury as a stabbing device, and that the instrument was not necessary for defendant to have in his possession. This is not a situation where a device used for artistic purposes was possessed in a prison craft room. In fact, defendant concedes that all "cup picks" found in prison cells are confiscated by the authorities.
Therefore, defendant reasonably should have known he could not lawfully possess the sharp instrument in his cell. There is no evidence to support his suggestion that the possession of a "cup pick" by an inmate does not ordinarily lead to prosecution pursuant to section 4502, subdivision (a).
Considering the nature of the item found in defendant's cell (including its tapered shape and the length and firmness of its sharp metal point) and the fact it is not a necessary possession for an inmate, a person of ordinary intelligence would know it is a sharp instrument which falls within the prohibition of section 4502, subdivision (a).
[This Part Is Not Certified for Publication]
II* As pertinent to this case, the three strikes law applies to a prior conviction for a "felony in which the defendant personally inflicts great bodily injury on any person" or "personally uses a dangerous or deadly weapon." (§ 667, subd. (d)(1), 1192.7, subds. (c)(8) & (c)(23).)
Defendant's conviction in 1993 for assault with a deadly weapon was alleged as the basis for the prior serious felony conviction allegation. (§ 667, subds. (b)-(i).)
According to defendant, the trial court committed reversible error in failing to instruct the jury that, to determine whether the prior serious felony conviction allegation was true, the jury had to determine whether defendant personally used a deadly weapon in committing the 1993 assault with a deadly weapon.
The People disagree, claiming that the jury simply had to determine whether defendant was convicted of assault with a deadly weapon, and that it was the trial court's role to determine whether defendant personally inflicted great bodily injury, or personally used the deadly weapon, thus making the conviction a serious felony within the meaning of the three strikes law.
The People are correct. (People v. Jackson (1999) 71 Cal.App.4th 108, 111-114 [not yet final]); cf. People v. Wiley (1995) 9 Cal.4th 580, 592; People v. Leever (1985) 173 Cal.App.3d 853, 871-873.)
In any event, defendant suffered no prejudice because, while testifying, defendant admitted he stabbed his brother in 1993, thus admitting he personally used a deadly weapon and personally inflicted great bodily injury. (Cf. People v. Wims (1995) 10 Cal.4th 293, 314-315.)
III* Next, defendant claims the trial court abused its discretion in refusing to strike the prior serious felony conviction
for purposes of sentencing. (§ 1385, subd. (a) [hereafter § 1385(a)].) He argues the sentence is "grossly disproportionate to the nature and circumstances of [his] misconduct," which he characterizes as a "technical violation" of section 4502, subdivision (a).
"A court's discretion to strike prior felony conviction allegations in furtherance of justice is limited. Its exercise must proceed in strict compliance with section 1385(a), and is subject to review for abuse." (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530.) "'"[T]he language of [section 1385(a)], 'in furtherance of justice,' requires consideration both of the constitutional rights of the defendant, and the interests of society represented by the People, in determining whether there should be a dismissal." At the very least, the reason for dismissal must be "that which would motivate a reasonable judge."'" (Id., at pp. 530-531, citations and italics omitted.)
In determining whether to strike a prior, the court "must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the . . . spirit [of the three strikes law], in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.)
Defendant was 39 years old at sentencing. His prior convictions are numerous and varied: theft and receiving stolen property in 1978; malicious mischief to a vehicle in 1979; resisting a public officer in 1980; misdemeanor grand theft in 1982; providing false identification to a peace officer and fighting in public in 1986; receiving stolen property in 1987; four counts of receiving stolen property in 1989; petit theft in 1991; assault with a deadly weapon in 1993; and violating section 415 by fighting in 1996. He had served three prior prison terms.
Defendant's current offense was not de minimis as he suggests. His effort to compare the inmate-made sharp instrument to a pencil or pen is unconvincing. Evidence established that the instrument seized from his cell was particularly suitable for stabbing, with its tapered body and firm needle point. The occurrence of prison violence and serious physical injury inflicted with inmate-made instruments is a serious matter of common knowledge. Hence, his possession of the sharp instrument was not "benign" as he claims.
And his suggestion that he is not a "dangerous criminal" rings hollow as his record reflects prior convictions for acts of violence.
Considering all the circumstances, the trial court did not abuse its discretion in declining to strike the prior serious felony conviction, and in sentencing defendant to a prison term of eight years.
IV* However, defendant correctly contends, and the People concede, the trial court erred in failing to award presentence credits from defendant's previously-scheduled prison release date of August 30, 1997, until his sentencing in this case on October 23, 1997. Defendant was entitled to 55 days of custody credit and 26 days of conduct credit, for a total of 81 days of presentence credit. [End of part IV.]
[End of Part Not Certified for Publication]
DISPOSITION The judgment is modified to give defendant credit for 55 days of actual custody and 26 days for good conduct, a total of 81 days of presentence credit. As modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect the modification, and to send a copy of the amended abstract to the Department of Corrections.
SCOTLAND , P.J.
We concur:
SIMS , J.
NICHOLSON , J.
* Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of parts II-IV.
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