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The People v. Ernest Jacinto Velasco

April 29, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ERNEST JACINTO VELASCO, DEFENDANT AND APPELLANT.



Trial Court: Monterey County Superior Court No. SS090915 Trial Judge: Hon. Timothy P. Roberts

The opinion of the court was delivered by: Duffy, J.

CERTIFIED FOR PUBLICATION

Monterey County Super.Ct.No. SS090915

Defendant Ernest Jacinto Velasco appeals from a judgment of conviction entered on a jury verdict. The jury convicted him of possessing a shank in prison. On appeal, defendant claims that the state violated his constitutional rights when prison guards failed to gather and thereafter preserve other evidence they noticed when they found the shank.

We will affirm the judgment.

PROCEDURAL BACKGROUND AND FACTS

I. Procedural Background

A jury convicted defendant of one count of possessing a weapon while in penal custody. (Pen. Code, § 4502, subd. (a).) The jury found true two allegations that he had two prior convictions within the meaning of the "Three Strikes" law. (Id., §§ 667, subds. (b)-(i); 1170.12, subd. (c)(2).) The trial court sentenced him to a prison term of 25 years to life, to be served consecutive to the terms he was already serving for convictions of attempting to murder two peace officers and inflicting great bodily injury on one of them.

II. Facts

A. Prosecution Case

Defendant is an inmate at the Salinas Valley State Prison in Soledad and is subject to a protocol that stops inmates from entering the recreation yard until correctional officers have screened them for weapons. Inmates wear only boxer shorts and undershirts during the inspection procedure. Officers inspect their outer clothing, which the inmates carry, and return it to them. Next, the inmates undergo weapons screening, a test that consists of an officer's search of their person with a hand-held metal detector. After passing that inspection, the inmates may enter the yard and don their outer clothing.

On November 26, 2008, Correctional Officer Frank Colburn screened defendant for weapons as defendant prepared, in his minimal dress, to enter the recreation yard. The metal detector detected an object. Officer Colburn and a correctional officer named Sandquist patted defendant down. Officer Colburn felt "a foreign object in the front of his boxer shorts." He handcuffed defendant, escorted him away, and radioed Sergeant Mike Kircher.

When Sergeant Kircher arrived at the location to which Officer Colburn had escorted defendant, Officer Colburn explained the circumstances and Sergeant Kircher asked defendant what his shorts contained. Defendant replied, "It's a weapon." Sergeant Kircher directed Officer Colburn to extract the item, an "inmate-manufactured stabbing device," namely a sharp and pointed shank that appeared to be steel.

The shorts had been modified, evidently to accommodate the shank. Officer Colburn discovered that defendant's boxer shorts "had an inmate-manufactured pocket sewn in the front behind the fly on the interior of the shorts." This ...


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