Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County Super. Ct. No. 05CF3683, William R. Froeberg, Judge.
Marleigh A. Kopas, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Steve Oetting, Supervising Attorney General, and Robin Derman, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
O’LEARY, J.
Patrick Anthony Martinez appeals from his conviction for felony possession of a weapon, a sharp instrument, while confined in a penal institution. (Pen. Code, § 4502, subd. (a).) He was sentenced under the “Three Strikes” law (§§ 667 & 1170.12) to a term of 26 years to life in prison. The sharp instrument Martinez possessed was a “razor-comb,” a device he made by attaching the blade from his jail-issued razor to a comb. On appeal, Martinez contends: (1) the trial court unconstitutionally construed section 4502 to be a “strict liability” offense—arguing the requisite mens rea for conviction is knowledge his possession of the razor comb was unlawful, not simply knowledge he possessed the device; (2) the term “sharp instrument” is unconstitutionally vague; (3) the trial court erred by excluding evidence of his innocent reason for possessing the razor comb (i.e., personal grooming); and (4) the trial court abused its discretion by denying Martinez’s motion to strike his prior strike offenses. We find his contentions are without merit and affirm his conviction.
All further statutory references are to the Penal Code.
FACTS
Martinez was incarcerated at the Orange County Jail. Orange County Sheriff Deputies conducted a search of Martinez’s cell. When initially told to exit his cell, Martinez hesitated. Martinez, who was dressed in boxer shorts and a T-shirt, attempted to grab his pants from his bunk, but eventually left without the pants at the direction of the deputies. During the search, the deputies discovered in Martinez’s pants pocket a comb with an exposed razor blade attached to the end sticking up about one-half inch. Deputies were able to use the blade to slice through a one-half inch thick magazine. Martinez admitted to deputies he had attached the blade from his jail-issued razor to his jail-issued comb, but he did not believe it was a violation of jail rules to have done so.
At trial, Martinez admitted he was an inmate confined in the Orange County Jail and he possessed the comb with a razor blade attached. Martinez testified was allowed to possess a razor in jail, but admitted he modified the razor by attaching it to his comb, making a razor-comb. Martinez sought to introduce testimony he possessed the razor-comb for the purpose of cutting his hair. The court excluded the testimony concluding Martinez’s reason for possessing the razor-comb was not relevant.
A jury convicted Martinez, as charged, on one count of possession of a sharp instrument while confined in a penal institution. (§ 4502, subd. (a).) In a bifurcated bench trial on enhancement allegations, the trial court found true all charged enhancement allegations, i.e., Martinez had suffered three serious and violent felony convictions under the Three Strikes law and served a prior prison term within the meaning of section 667.5, subdivision (b). The court denied Martinez’s motion to strike at least two of his strike priors, and sentenced him to a term of 26 years to life in prison.
DISCUSSION
A. Constitutional Issues
1. Mental State
Martinez contends his due process rights were violated by jury instructions making section 4502 a strict liability offense. He contends the requisite mental state for the offense is actual knowledge that possession of the particular sharp instrument in jail was unlawful. We disagree.
Section 4502, subdivision (a), 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 (Custodio).) It provides in pertinent part that “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 . . . .” (Italics added.)
Section 4502, subdivision (a), 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 (Wells I), disapproved on other grounds in People v. Barnum (2003) 29 Cal.4th 1210, 1219, fn. 1.) 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.” (Custodio, supra, 73 Cal.App.4th at p. 812.)
A long, and uniform, line of California cases have held section 4502 is a strict liability crime—the only mental state required for conviction is the defendant’s knowledge the prohibited item is in his or her possession. (People v. Strunk (1995) 31 Cal.App.4th 265, 272 (Strunk).) The statute’s prohibition is absolute and the intention with which the weapon is carried is not an element of the offense. (See Wells I, supra, 68 Cal.App.2d at pp. 478-479, and cases cited therein; see also People v. Evans (1969) 2 Cal.App.3d 877, 881; People v. Steely (1968) 266 Cal.App.2d 591, 595; People v. Marcus (1955) 133 Cal.App.2d 579, 581.) As explained in People v. Wells (1968) 261 Cal.App.2d 468, 478-479 (Wells II), “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.]”
In accordance with the foregoing authorities, the trial court instructed the jury on the issue of mental state with Judicial Council of California Criminal Jury Instructions (2006-2007) CALCRIM No. 250, “The crime charged in this case requires proof of the union, or joint operation, of act and wrongful intent. In order to be guilty of the crime of possessing a sharp instrument while confined in jail, a person must not only commit the prohibited act, but must do so intentionally or on purpose. The act required is explained in the instructions for each crime. However, it is not required that he intend to break the law.” (Italics added.) As to the elements of the offense, the court instructed the jury with CALCRIM No. 2745, “To prove the defendant is guilty of this crime, the People must prove that: 1. The defendant was present at or confined in a penal institution; 2. The defendant possessed or had under his control a sharp instrument; 3. The defendant knew he possessed or had under his control a sharp instrument; AND 4. The defendant knew that the object was a sharp instrument.”
Martinez argues that for section 4502, subdivision (a), to qualify as a constitutionally permissible malum prohibitum (or regulatory) offense, the penalty must be relatively light. He cites People v. Simon (1995) 9 Cal.4th 493, 521 (Simon), but his reliance on Simon is misplaced. In Simon, supra, 9 Cal.4th 493, the Supreme Court had before it statutes that made criminal the sale or purchase of securities by means of oral or written communications which either contain false or misleading statements or omit material facts. Despite the lack of specific language in the statutes concerning scienter, the court concluded the statutes did not describe strict liability crimes, i.e., merely making a statement that turned out to be false was not sufficient, the defendant’s “knowledge of the falsity or misleading nature of a statement or of the materiality of an omission, or criminal negligence in failing to investigate and discover them, are elements of the criminal offense . . . .” (Id. at p. 522.)
In assessing whether the statutes could constitutionally impose strict liability, Simon, supra, 9 Cal.4th 493, considered the harshness of the penalties, concluding a prison sentence of two, three, or five years was a harsh penalty not normally handed out for a public welfare offense lacking a mens rea requirement. Martinez urges that similarly here, “[t]he infliction of criminal punishment in the form of a prison sentence of years (in this case, a life term) upon someone unaware he has violated a law is hardly in accordance with the ‘relatively light’ penalties permissible in malum prohibitum crimes.” But, we must stress that Martinez’s punishment of 26 years to life is not the sentence mandated by section 4502, but is the sentence imposed for his being a recidivist under the Three Strikes law. The punishment for violating section 4502, subdivision (a), is two, three, or four years. Certainly, possession of a sharp instrument within a jail presents a more serious and immediate threat to health and safety of the jail population than a violation of a securities statute presents to the general public. In light of the danger possession of a razor-comb in a jail presents, and the potential harm that such an instrument could do, the penalties for a violation of section 4502 cannot be viewed as unduly harsh.
We reject Martinez’s assertion that to prove a violation of section 4502, subdivision (a), the prosecution is required to establish he knew possession of a sharp instrument or other weapon in jail was prohibited and he intended to violate this prohibition. The crime requires proof of a defendant’s “knowledge of actual or constructive possession” of a sharp object while confined in a penal institution (Strunk, supra, 31 Cal.App.4th at p. 272; see also People v. Jurado (1972) 25 Cal.App.3d 1027, 1030-1031), but knowledge the possession is illegal is unnecessary. (See In re Jorge M. (2000) 23 Cal.4th 866, 877 [“‘“The only knowledge required is knowledge of the character of the object possessed; knowledge that the possession is illegal is unnecessary.”’”].)
2. Vagueness: Definition of “Sharp Instrument”
Next, Martinez argues section 4502, subdivision (a), is unconstitutionally vague because a reasonable person must guess at the meaning of “sharp instrument.” We disagree.
In Custodio, supra, 73 Cal.App.4th 807, the court addressed and rejected the same constitutional arguments. In that case, defendant had in his cell a sharp instrument made from the plastic barrel of a ballpoint pen with a piece of metal, like a sewing machine needle, sticking out of it that could be used as a weapon. Defendant claimed the device was a “cup pick,” which he used for artistic reasons, and he did not believe it was a weapon or sharp instrument. (Id. at pp. 809-810.) The court rejected the defendant’s contention section 4502, subdivision (a), violated due process because the term “‘sharp instrument’” was unconstitutionally vague on its face and as applied. (Id. at pp. 810-811.)
The court in Custodio concluded section 4502, subdivision (a), was not vague on its face. “[V]iewing the statute ‘according to the fair import of [its] terms, with a view to effect its objects and to promote justice’ [citation], 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. [Citation.] Accordingly, the statute is not unconstitutionally vague on its face.” (Custodio, supra, 73 Cal.App.4th at p. 812.)
Nor was the statute vague as applied. Despite defendant’s claim he had an innocent (purely artistic) purpose in possessing the cup pick, the “[e]vidence 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. . . . [¶] Therefore, defendant reasonably should have known he could not lawfully possess the sharp instrument in his cell. . . . [¶] 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).” (Custodio, supra, 73 Cal.App.4th at pp. 812-813.)
We are similarly unimpressed by Martinez’s claims he could not have reasonably known the razor-comb he possessed was a prohibited sharp instrument. Although he was permitted to have a razor and permitted to have a comb, he altered the razor by affixing its blade onto the comb making a sharp cutting device. Considering the device was capable of slicing through a one-half inch thick magazine, it goes without saying it could easily be used to inflict a serious, if not mortal wound upon a person. An incarcerated person could hardly be surprised to learn such an item is prohibited.
B. Exclusion of Evidence
Martinez contends the court erred by precluding him from admitting evidence of his innocent purpose in possessing the razor-comb. The California Constitution, Article I, section 28, subdivision (d), provides for the admission of all relevant evidence. Because section 4502, subdivision (a), is a strict liability crime and the only mental state required is the defendant’s knowledge the prohibited item was in his or her possession, evidence of his reasons for having the razor-comb was not relevant and was properly excluded.
Martinez has filed a request for judicial notice of various documents filed in other court proceedings in which he is involved, which he asserts demonstrate he possessed the razor-comb for grooming purposes. The documents include declarations from other jail inmates concerning the use of razor-combs to cut hair. Because Martinez’s intent in possessing the razor-comb is not relevant, the request for judicial notice is denied.
C. Instructional Error
Martinez separately argues the trial court failed to properly instruct the jury that section 4502, subdivision (a), is a specific intent crime and the prosecution must prove “he intended to possess the [razor-comb] in violation of the law and to use it as a weapon.” 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.) As we have discussed, knowledge that possession of a sharp instrument was unlawful was not an element of the crime and, therefore, failure to instruct was not error.
D. Sentencing
Lastly, Martinez complains the court abused its discretion in failing to dismiss one or more of his strikes for sentencing purposes. We find no abuse of discretion.
“[A] court’s failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard.” (People v. Carmony (2004) 33 Cal.4th 367, 374.) “In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ‘“[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve the legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.”’ [Citations.] Second, a ‘“decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’”’ [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. at pp. 376-377.)
Martinez had a lengthy criminal record including roughly 22 convictions dating back some 20 years, and many of those offenses were violent offenses. The strike convictions were serious and violent felonies including burglary and sexual assault. The court commented Martinez’s current offense demonstrated his propensity to commit violent antisocial acts even while incarcerated. The court also noted the serious nature of Martinez’s prior strikes and his lengthy record. Finally, the court took into consideration the fact that Martinez had been involved in 41 jail incidents during the time he had been in custody for this offense, and 16 of those incidents were classified as major. Under the circumstances, we cannot say the trial court abused its discretion when it concluded Martinez was “an exemplar of the revolving-door career criminal to whom the Three Strikes law is addressed.” We find no abuse of discretion.
DISPOSITION
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., BEDSWORTH, J.