APPEAL from a judgment of the Superior Court of Sacramento County, Patricia C. Esgro, Judge. Reversed. (Super. Ct. No. 06F03231).
The opinion of the court was delivered by: Sims, Acting P. J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Defendant James Hayes appeals following a conviction for possessing/carrying a "sharp instrument" upon his person while confined in a penal institution. (Pen. Code, § 4502, subd. (a).*fn2)
As pertinent, the trial court instructed the jury, "A sharp instrument is an instrument that can be used to inflict injury and that is not necessary for the inmate to have in his possession." This instruction allowed the jury to conclude that the instrument in question did not have to be "sharp" as that term is commonly used. Under the court's instruction, the jury could have concluded a baseball bat was a sharp instrument. In closing argument, the prosecutor told the jury that, pursuant to aforementioned instruction, "This is a legal definition of a sharp instrument for this case" and common-sense definitions of "sharp" do not apply.
All this constitutes prejudicial error. As used in section 4502, a "sharp instrument" must be "sharp" as that term is commonly used. The court's instruction and the prosecutor's argument encouraged the jury to conclude otherwise.
In the published portion of the opinion, we shall reverse the judgment because the jury instruction created an ambiguity, exploited by the prosecutor to argue a legally incorrect theory that the jurors could find defendant guilty without finding the item was "sharp." In the unpublished portion of the opinion, for guidance on remand, we shall explain there was no evidentiary error. We need not address defendant's contention regarding jury selection.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with possessing and carrying upon his person a sharp instrument on November 29, 2005, while confined in a penal institution, in violation of section 4502. Two prior convictions were alleged--a 1992 murder and a 1992 attempted murder. Trial of the prior convictions was bifurcated.
The trial evidence included the following:
A prison correctional officer testified that defendant was confined in state prison when, on November 29, 2005, the officer searched defendant's cell, which defendant shared with another inmate. The officer then told defendant to strip for a search. When defendant handed over his boxer shorts, the officer discovered in the shorts a black object tied with string to the fly of the boxers. The officer described the object (which was admitted into evidence) as a "weapon" of hard plastic, about three or three and one-half inches long, rounded on one end, and sharpened to a point on the other end. The officer viewed the object as a weapon because it was sharpened to a point, could be gripped in the hand with the point protruding, and would not be detected by metal-detecting wands.*fn3
On cross-examination, when questioned as to whether the object was sharp or pointed, the officer said it "comes to a point." Defense counsel pursued the matter:
"Q: . . . You testified today in court you thought it was a sharp object; is that right?
"A: It comes to a point. Yes, sir.
"Q: And that's kind of my point. It comes to a point, but it's not sharp really, is it?
"A: Cutting sharp? Like a knife? Is that what you're indicating?
"Q: Not so much edge cutting, but how about point cutting?
"A: I don't understand how a point cuts.
"Q: You think it has a sharp point where it penetrates easily, like a sharp object?
Defense counsel held up a Bic pen, and the officer testified the pen's point was "[s]imilar" to the point of the object in question.
On re-direct, when asked if the point was sharp like a dart, the officer said, "It's a sharp point. Yes, sir." On the witness stand, the officer put on latex gloves, touched the object's point to his hand, and said it felt sharp.
On re-cross, the officer said the object was not a dart. He admitted the object did not penetrate the latex glove but opined it would have, had he put more pressure on it.
On further re-direct, the prosecutor had the witness hold up one layer of glove and push the object into it, which resulted in the glove appearing partially shredded.
Another officer testified he was present during the cell search, saw the object, and considered it a weapon because it could be gripped in the hand and "because of the sharpness of the point itself," which could be used to "penetrate something." On the witness stand, the officer held the object in his hand in the manner of a "stabbing weapon" that could stab someone's throat or arm. On cross-examination, the officer admitted he did not use the word "sharp" in his written report, which merely described the item as a black plastic weapon. He also admitted the point of the item was rounded slightly at the tip, like the Bic pen. On re-direct examination, the officer said he thinks the object is a sharp instrument.
Defendant testified he made the object, by melting down a piece of a CD case, in order to fashion a screwdriver he could use to work on his radio. He used the object as a screwdriver on his radio and cassette player. He then remolded the object with the intent to use it to clean his toenails. He did not get a chance to try it on his nails before it was confiscated. Defendant put the object in his underwear because he knew it might be considered contraband -- not because it was sharp, but because it was an altered object and might look like a weapon. Defendant thought it would be confiscated but did not think he could be charged with a felony for having it. Defendant gave his opinion that the object is not sharp enough or long enough to be considered a weapon, but he answered, "Maybe. Yeah," when asked if it might look like a weapon to a correctional officer because it has a sharp point. The object could puncture something if pressed with enough force, but so could a pen or pencil, which inmates are allowed to have.
In discussions concerning jury instructions, defendant proposed a jury instruction, stating in part that in order to be a sharp instrument ...