(Super. Ct. No. 08F10413)
The opinion of the court was delivered by: Cantil-sakauye, J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant of possession of a sharp instrument while in prison (Pen. Code, § 4502, subd. (a)) and found true the allegation that defendant had a prior serious felony conviction (Pen. Code, §§ 667, subds. (b)-(i); 1170.12).*fn1 The court sentenced defendant to a consecutive six-year term in prison and imposed a $30 court facilities fee (Gov. Code, § 70373). On appeal, defendant contends the trial court erred in failing to instruct sua sponte on the defense of momentary possession. He also contends the retroactive imposition of the court facilities fee was unauthorized. We affirm.
On the evening in question, defendant, an inmate in Folsom State Prison, was escorted to a holding cell for an unclothed body search. Correctional Officer Mark Suetta unlocked the cell and took a quick look for contraband before placing defendant in the cell and locking it. Suetta instructed defendant to remove all of his clothing. As defendant removed his pants, Suetta saw an object fall from the area of defendant's waist to the floor. Defendant immediately put his foot over the object. The object appeared to be about six or seven inches long; it was straight, skinny and cylindrical.
Suetta asked defendant what the object was and received no answer. Defendant reached down and picked up the object; he placed it underneath his buttocks on the bench in the cell.
Suetta ordered defendant to drop the object, but defendant ignored the order. Suetta sprayed defendant with pepper spray. Defendant stood up, with his back to Suetta, and appeared to be manipulating or bending the object. Suetta gave a second order to drop the object. Again, defendant ignored the order and Suetta used pepper spray on defendant. After the second spraying, defendant dropped the object outside the holding cell.
The object was a six- or seven-inch-long piece of metal with a sharp point and tape on one end. It was bent like a boomerang. On the floor of the holding cell was a sheath or handle made out of plastic wrap.
At trial, defendant testified in his defense. He claimed the object was already in the holding cell and looked like a piece of trash. When ordered to pick it up and pass it to Suetta, defendant refused because it was not his. After Suetta sprayed him, defendant gave in and picked it up. After the second spray, he put the object through the slot in the cell door.
I. No Instruction on Momentary Possession ...