People v. Brown

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Opinion

BUCKLEY, J.

Defendant, Bobby Brown, appeals from his conviction of Penal Code section 4502, possession of a weapon by a prisoner. He contends he was entitled to a jury instruction regarding temporary possession for purposes of disposal. (CALJIC No. 12.06.) We disagree and will affirm.

Facts

Defendant was a prisoner in state prison, housed at the California Substance Abuse Treatment Facility, Corcoran. One day, the lieutenant received information there was going to be gang fighting in one of the yards. He went to the yard and requested that additional officers join him. While he waited for backup, he noticed defendant swaggering in a “gangster” fashion. He searched defendant and found a razor blade, which had been removed from its plastic casing (having been originally supplied as a disposable shaver) and fashioned into a weapon.

Defendant was charged and convicted of a violation of Penal Code section 4502. He was sentenced to eight years fully consecutive to the term he was currently serving.

Discussion

The sole issue on appeal is whether, under the circumstances presented here, defendant was entitled to a jury instruction informing the jury that temporary possession for disposal is not unlawful possession.

At trial, counsel for defendant requested CALJIC No. 12.06,

1

an instruction which essentially states, as arguably applicable here, that possession of

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contraband is not unlawful if the possession is “solely for the purpose of abandonment, disposal, or destruction.” In support of the request, counsel made an offer of proof that defendant would testify that he came upon the object on the ground, was concerned for his own safety and the safety of others and therefore picked it up, put it into his pocket and was proceeding to the outdoor toilet to dispose of it. Counsel also stated that he was prepared to call another witness to testify that he saw defendant pick it up. The court refused to give the instruction, ruling that the instruction has no application in a state prison.