People v. Hernandez CA5

Filed 5/16/22 P. v. Hernandez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F082946 Plaintiff and Respondent, (Kings Super. Ct. No. 20CMS1688) v.

JOSE ALBERTO HERNANDEZ, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kings County. Donna L. Tartar, Judge. Elisa A. Brandes, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-

* Before Hill, P. J., Levy, J. and Poochigian, J.

INTRODUCTION Appellant and defendant Jose Alberto Hernandez pleaded no contest to possession of a weapon while an inmate in state prison (Pen. Code, §4502, subd. (a))1 and was sentenced to two years, consistent with a negotiated disposition. On appeal, his appellate counsel has filed a brief that summarizes the facts with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Defendant has filed a supplemental brief in pro. per. We affirm. FACTS2 On November 8, 2019, defendant was an inmate at Corcoran State Prison. Correction Officer Anthony Arisco conducted a search of defendant’s cell as part of a mass search of all cells. Defendant was the only occupant of his cell. The prison’s policy was to search the entire cell and toilet before it was assigned to an inmate. Officer Arisco found a plastic ring inside the toilet that was attached to a string. Arisco pulled on the string, and it was connected to a bag that contained two pieces of metal. Both pieces had been made into stabbing-type weapons. One end on each piece was sharpened to a point. One piece was about four inches long, and the other piece was five inches long. PROCEDURAL BACKGROUND On March 30, 2020, a complaint was filed in the Superior Court of Kings County charging defendant with count 1, possession of a weapon, a sharp instrument, while confined in a penal institution (§ 4502, subd. (a)), with three prior strike convictions.3

1 All further statutory citations are to the Penal Code unless otherwise indicated. 2 The following facts are from the preliminary hearing. 3 Section 4502, subdivision (a) states: “Every person who, while at or confined in any penal institution, while being conveyed to or from any penal institution, or while under the custody of officials, officers, or employees of any penal institution, possesses or carries upon his or her person or has under his or her custody or control any instrument or weapon of the kind commonly known as a blackjack, slungshot, billy, sandclub, sandbag, or metal knuckles, any explosive substance, or fixed ammunition, any dirk or