People v. Velasquez

Opinion

ASHBY, J.

While in Los Angeles county jail on a charge of attempted murder, appellant was found in possession of a handmade knife. He was convicted by a jury of violating Penal Code section 4574, and he was sentenced to state prison.

1

On the evening of February 12, 1983, Deputy Sheriff Koeth was on duty as “module officer” at the Los Angeles county jail, and it was his duty to check the prisoners. He went to appellant’s cell, and observed appellant in a kneeling position sharpening a jail-made knife, commonly called a shank, by scraping or filing it on the concrete floor of the cell. He watched appel

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lant do this for about 10 seconds, until appellant looked up, saw the officer, and quickly put the knife behind his back. The officer asked appellant to hand it over, and appellant complied. The weapon was a piece of metal torn from a bunk railing, with a sharpened tip at one end and cloth handle at the other.

Appellant testified in his own defense, admitting that he was making a knife from the railing of his bed when he was confronted by the officer. His purpose in making a knife was for “protection.” Earlier that day he had been attacked in his cell by four inmates.

2

Appellant reported the attack to the afternoon module officer, although he did not identify his attackers because “[t]hat’s not my style.” The officer told appellant to go back to his cell. Appellant replied that he wanted something done, such as a transfer. The officer told him that if appellant did not go back to his cell he would be locked up in solitary confinement.

3

Although admitting at trial that he would have been safe in solitary confinement, appellant went back to his cell and made the knife because “they didn’t do anything about it earlier.” The knife “was going to be my protection, [t] . . . . [1] And if I can’t get nobody to help me out, I’m going to do what I have to do to survive in that County Jail . . . .”

Appellant contends the trial court erred in refusing to instruct the jury on necessity as a defense. As appellant concedes, the case law under both Penal Code section 4574 and the analogous section 4502 relating to state prisons is squarely against him. The purpose of these statutes is to protect inmates and officers from assaults with dangerous weapons perpetrated by armed prisoners. Evil intent or intended use for an improper purpose is not an element of the crime. The purpose of the statutes would be frustrated if prisoners were allowed to arm themselves in proclaimed or actual fear of anticipated attack by other inmates. Accordingly, it is well-established that arming for self-defense against a future anticipated attack is no defense to the crime.