P. v. Wiley CA3

Filed 7/11/13 P. v. Wiley CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Lassen) ----

THE PEOPLE, C068661

Plaintiff and Respondent, (Super. Ct. No. CH028162)

v.

PATRICK WILEY,

Defendant and Appellant.

A jury convicted defendant Patrick Wiley of possession of a sharp instrument by a prison inmate (Pen. Code, § 4502, subd. (a)1 (undesignated statutory references are to the Penal Code) and, in a trial by court, he was found to have a prior strike conviction for murder (§ 187). He was sentenced to a consecutive term of six years (midterm of three years doubled because of the strike) in state prison.

1 Penal Code section 4502, subdivision (a) provides in relevant part: “Any 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 . . . sharp instrument . . . is guilty of a felony . . . .”

1

On appeal, defendant contends the evidence is insufficient to support the conviction and the conviction may not be reduced to an attempt. We agree the evidence does not support the conviction, but disagree with him that we may not reduce the offense to an attempt. FACTS Craig Franklin, a correctional officer at High Desert State Prison, testified that defendant was an inmate of the prison in an administrative segregation section. When an inmate has been placed in that section, their personal property is removed from their possession and placed in individual plastic bags that are then placed in boxes that are securely taped. The boxes are placed in a storage area. Inmates may make out a prison form, called a “wish list,” specifying items of their personal property they would like to have returned to them. If the requested property is “allowable” it may be returned to the inmate. On June 22, 2010, defendant filled out a wish list requesting, among other things, two bars of soap. On July 30, 2010, Officer Franklin removed defendant’s wish list from defendant’s property bag, handed the list to defendant and had him verify that it was his, which defendant did. Franklin returned to where he had left defendant’s property bag and began going through it to determine if the items requested were allowable. He discovered that two bars of soap had been split in length. Inside one bar was rust and inside the other was a three-inch piece of metal with a sharp point (sharp instrument). Franklin asked defendant if he “used to play with” the soap, and defendant responded, “Yes.” Franklin turned the bars of soap over to Officer James McCloughlan, who investigates prison crimes. On July 30, 2010, Officer McCloughlan confronted defendant regarding the sharp instrument within the soap. Defendant admitted making the sharp piece of metal and placing it in the bar of soap. On August 23, 2010, at a prison disciplinary hearing, defendant again admitted the piece of metal was his.