People v. Herrera CA3

Filed 10/14/14 P. v. Herrera CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE, C073169

Plaintiff and Respondent, (Super. Ct. No. 11F05197)

v.

JOSHUA SAMUEL HERRERA,

Defendant and Appellant.

A jury found defendant Joshua Samuel Herrera guilty of assault with a deadly weapon while confined in prison (Pen. Code, § 4501; count one)1 and possession of a

1 Further statutory references are to the Penal Code unless otherwise indicated.

1

sharp instrument while confined in prison (§ 4502, subd. (a); count three).2 In a bifurcated proceeding, the trial court found that defendant had suffered a June 2006 robbery conviction. Defendant was sentenced to prison for eight years (twice the middle term) consecutive to the term he was then serving. Defendant contends his count one conviction must be reversed because (1) there was insufficient evidence that he was confined in prison “by order made pursuant to law” within the meaning of section 4504, subdivision (a), and (2) the jury was not instructed to determine whether he was so confined by such order. Defendant also claims the trial court imposed a $240 restitution fine in violation of ex post facto principles. We modify the judgment and affirm. FACTS At California State Prison, Sacramento on September 7, 2010, two “northern Hispanic inmates,” defendant and codefendant Michael Rodriguez, got into a fight with an African American inmate, Phaynes Reeda. Correctional officers saw defendant and Rodriguez punching Reeda and “getting the better” of him in the fight. Reeda was “covered in blood,” with blood on his neck and back, and “there was a puddle below his feet.” Defendant and Rodriguez were the aggressors in the fight, lunging toward Reeda as he backed away. Officers did not see anything in defendant’s hands. Defendant and Rodriguez were told repeatedly to get down on the ground. Officers used pepper spray and a nonlethal 40-millimeter baton round before the duo went to the ground. As the fighting stopped and defendant started to get on the ground, he made a throwing motion and one or two weapons landed on the floor in front of a cell. Two prison-made weapons were found on the floor near the cell. One weapon bore a