People v. Ritter CA5

Filed 3/10/14 P. v. Ritter CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent, F066186

v. (Super. Ct. No. F09101051)

RONALD RITTER, OPINION

Defendant and Appellant.

THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Jane Cardoza, Judge. Catherine White, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Charity S. Whitney, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

 Before Levy, Acting P.J., Gomes, J., and Poochigian, J.

A jury convicted appellant, Ronald Ritter, of possession of a weapon while confined in a penal institution (Pen. Code, § 4502, subd. (a)).1 In a separate proceeding Ritter admitted five prior prison term enhancements (§ 667.5, subd. (b)) and allegations that he had three prior convictions within the meaning of the three strikes law (§ 667, subds. (b)-(i)). On November 14, 2012, the court sentenced Ritter to an aggregate, indeterminate term of 30 years to life, 25 years to life on the substantive offense and five one-year prior prison term enhancements. On appeal, Ritter contends: 1) his conviction must be reversed because section 4502 violates the equal protection clauses of the state and federal Constitutions; and 2) the court erred in imposing one of the five prior prison term enhancements. We will find merit to this latter contention and modify the judgment accordingly. In all other respects, we affirm. FACTS Ritter was an inmate at Pleasant Valley State Prison in Fresno County and had been the sole occupant of his cell since December 15, 2008. On May 14, 2009, during a search of his cell, a correctional officer found a piece of metal, one and a half inches long, that had been sharpened to a point. The item had been taped to the underside of a shelf in Ritter’s cell and was capable of being used as an offensive weapon. DISCUSSION The Equal Protection Claim Preliminarily, we conclude that Ritter forfeited his right to raise his equal protection claim on appeal because he did not raise it in the trial court. (People v.