People v. Rojas CA1/3

Filed 5/24/24 P. v. Rojas CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIRST APPELLATE DISTRICT DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, A167867 v. ELVIS ALI ROJAS, (Del Norte County Super. Ct. Defendant and Appellant. No. CRPB225095)

A jury convicted Elvis Ali Rojas of possession of a weapon in state prison. (Pen. Code, § 4502, subd. (a).) On appeal, he argues his conviction must be reversed because the trial court failed to sua sponte instruct the jury on how to evaluate circumstantial evidence (CALCRIM No. 224). We remand to correct a clerical error in the abstract of judgment but otherwise affirm. BACKGROUND Rojas is an inmate at the Pelican Bay State Prison, where he is serving a lengthy sentence for various offenses, including assault with a deadly weapon committed by a prisoner with an enhancement for great bodily injury. (Pen. Code, §§ 4501, 12022.7.) In June 2022, correctional officers conducted a random search of a “day room,” a recreational area for inmates. During such a search, inmates are ordered to lie on the ground and are systematically taken, a couple at a time,

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to be searched in another room. Once searched, inmates are placed in a concrete yard until remaining inmates can be searched. Approximately 15 to 20 officers, including Officer Daniel Forkner, participated in the search. Upon entering the day room, Forkner noticed an “inmate-manufactured weapon” — “rolled plastic sharpened to a point on one end and a handle on the other end with a string attached” — on the floor. He motioned to Officer Alma Garza, who was recording the search, and had her record him picking up the weapon so they would know its exact location.1 When reviewing the footage, Forkner saw an inmate “reach into his waistband” and retrieve the weapon. The inmate — whom Forkner did not recognize — placed the weapon on the floor, where Forkner later found it. With the video playing for the jury, Forkner pointed out the person on the video who had the weapon and testified, “[h]e has a gray ball cap on, glasses, he has a black ponytail, white T-shirt, gray athletic shorts, and brown work boots.” He testified only one inmate in the day room fit that description. The video showed Forkner picking up the weapon after the inmate who left it had already been taken away to be searched. After reviewing the footage, Forkner went into the concrete yard to find the inmate. He testified only one inmate in the yard matched the description — Rojas. Forkner took photos of Rojas after detaining him, and the photos were shown to the jury. Forkner identified Rojas in court as the person on the video. Garza’s testimony was consistent with that of Forkner. She recounted recording the search and Forkner finding a weapon. She also testified she reviewed the footage with Forkner, saw an inmate place the weapon on the