Filed 5/13/16 P. v. Fadden 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
                                                                                           F070463
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. MF006708A)
                   v.

BARRETT JUSTON FADDEN,                                                                   OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. Kenneth C.
Twisselman II, Judge.

         John F. Schuck, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Eric L. Christoffersen and Sally Espinoza, Deputy Attorneys General, for
Plaintiff and Respondent.
                                                        -ooOoo-




         *Before    Levy, Acting P.J., Kane, J., and Detjen, J.
                                       INTRODUCTION
       In People v. Fadden (Jan. 4, 2007, F049795), an unpublished opinion, this court
affirmed defendant Barrett Juston Fadden’s conviction for possession of a weapon while
confined in a penal institution (Pen. Code, § 4502, subd. (a)).1 On November 4, 2014,
pursuant to the resentencing provision of Proposition 36, the Three Strikes Reform Act of
2012 (Proposition 36), the trial court heard and denied defendant’s petition for
resentencing. We affirm the trial court’s ruling.
                                FACTS AND PROCEEDINGS
       Defendant was a prison inmate in September 2004, serving a sentence of 13 years
4 months following convictions for two counts of carjacking (§ 215, subd. (a)) and two
counts of child endangerment (§ 273a, subd. (a)).2 Defendant had to pass through a metal
detector as he was being processed for admission to the California Correctional Institute
in Tehachapi after being transferred from Calipatria State Prison. Defendant removed a
metal ring from his finger but still set off the metal detector. When told he would be X-
rayed, defendant removed a package from his anal cavity. Guards unwrapped the
package and found six razor blades and some papers. The blades were one and one-half
inches long and five-sixteenths of an inch wide. They appeared to be taken from
disposable razors.
       Defendant testified at trial the package contained only paper, not razor blades.
Defendant also claimed the ring was stuck on his finger, which caused the metal detector
to go off twice. The papers defendant hid were his prison records showing he was a
carjacker. Because it took weeks for prison documentation to reach Tehachapi from
Calipatria, defendant brought the papers to prove to other inmates he was not a child
molester.

       1Unless   otherwise indicated, all statutory references are to the Penal Code.
       2The facts and proceedings are derived from defendant’s appeal and our opinion in
People v. Fadden, supra, F049795, relevant portions of the trial proceedings in that appeal, and
the hearing based on defendant’s petition for resentencing.

                                                 2.
          In ruling on the resentencing petition, the trial court stated it was taking judicial
notice of the preliminary hearing transcript, the reporter’s transcript from trial, and this
court’s opinion in People v. Fadden, supra, F049795. Officer Jeff Cable explained
defendant underwent an unclothed body search, nothing was found, and defendant went
through a metal detector. Cable testified at the preliminary hearing that he performed the
body search of defendant. At trial, Cable did not remember if he had performed the
unclothed body search.
          Cable explained that when he performs a body search, he first has the inmate strip
down. Cable then looks at the inmate’s hands, has the inmate raise his arms, and looks
underneath the inmate’s arms and inside his mouth. Cable also looks behind the inmate’s
ears. Cable checks the inmate’s hair if it is long, and also checks the inmate’s anal
cavity.
          At trial Cable explained defendant set off the metal detector and then removed a
ring and went through the metal detector again. The metal detector alarm sounded again.
Defendant told Sergeant John Beckett he had six razor blades, but did not say where they
were secreted. Beckett sent Officers Cable and Michael Bojan to retrieve the razor
blades.
          Defendant was taken to a utility room where there was a portable toilet for
defendant to use while he removed from his body anything he was carrying. Defendant
was squatting when he removed a bindle from his anus that was about four inches long
and one inch in diameter. Bojan described defendant as fumbling around as he retrieved
the bindle. At the preliminary hearing, Bojan said they spent about five minutes total in
the utility room. Bojan further explained defendant sat on the portable toilet, placed his
right hand behind him, and dropped the bindle into the toilet.
          After exchanging the metal restraints defendant was wearing with flex restraints,
defendant went through the metal detector a third time and the alarm did not sound.
Bojan put on latex gloves and proceeded to unwrap the bindle with Cable watching.


                                                 3.
After cleaning off fecal matter, he untied a knot at the end of the cylindrical bindle and
then undid two more layers. The three layers were made from the fingers of latex gloves.
There was a layer of toilet paper wrapped around three sheets of paper. Inside one of
these sheets of paper were six razor blades. The blades were one-and-a-half inches long
and five-sixteenths of an inch wide. Photographs of the unraveled bindle were admitted
into evidence.
       Beckett explained razor blades were not permitted because inmates use them as a
weapon against staff and each other. Inmates use them as slashing instruments and also
manufacture them into sturdier weapons. Inmates are only allowed to use a razor to
groom themselves in the shower, and it is removed from the inmate upon leaving the
shower.
                                       DISCUSSION
       Defendant contends he was not armed because the razor blades found in his
rectum were not available for immediate use. Defendant argues he was fumbling while
trying to remove the bindle, and his possession of the razor blades did not pose an
immediate threat to anyone. We disagree.
       On November 6, 2012, the voters approved Proposition 36, which amended
sections 667 and 1170.12 and added section 1170.126. Proposition 36 changes the
requirements for sentencing a third strike offender to an indeterminate term of 25 years to
life imprisonment. Under the original version of the three strikes law, a recidivist with
two or more prior strikes who was convicted of any new felony was subject to an
indeterminate life sentence. Proposition 36 restricted the three strikes law by reserving
the life sentence for cases where the current offense is a serious or violent felony, or the
prosecution has pled and proved an enumerated disqualifying factor. In all other cases,
the recidivist is sentenced as a second strike offender. (People v. Yearwood (2013) 213
Cal.App.4th 161, 167-168.)




                                              4.
       In addition to reforming three strikes sentencing for defendants convicted after the
effective date of Proposition 36, the initiative also added section 1170.126 to provide for
retroactive reform of existing three strikes sentences imposed before the effective date of
the initiative. Section 1170.126 “provides a means whereby, under three specified
eligibility criteria and subject to certain disqualifying exceptions or exclusions, a prisoner
currently serving a sentence of 25 years to life under the pre-Proposition 36 version of the
Three Strikes law for a third felony conviction that was not a serious or violent felony
may be eligible for resentencing as if he or she only had one prior serious or violent
felony conviction.” (People v. White (2014) 223 Cal.App.4th 512, 517 (White), review
den. Apr. 30, 2014, S217030.)
     In White, supra, 223 Cal.App.4th 512, the court rejected an argument very similar to
defendant’s. It held the defendant there was ineligible for resentencing under section
1170.126 because “the record of conviction,” which consisted of the trial evidence and
appellate record, established he had a firearm in his possession and was personally armed
in the commission of the underlying offenses, even though he was not charged with an
arming enhancement. (White, supra, at pp. 525–526.) White further held the prosecution
was not required to plead and prove charges and/or enhancements supporting facts to
disqualify him from resentencing under Proposition 36. (White, at pp. 526–527.)
       A series of cases have reached the same conclusion as White and hold that the
superior court may review the documents contained in the entire record of the qualifying
conviction, including prior appellate opinions, to determine if the defendant is ineligible
for resentencing, and the prosecution is not required to plead and prove any of the
disqualifying factors set forth in section 1170.126. (People v. Chubbuck (2014) 231
Cal.App.4th 737, 740, 747; People v. Brimmer (2014) 230 Cal.App.4th 782, 798–800;
People v. Guilford (2014) 228 Cal.App.4th 651, 660; People v. Elder (2014) 227
Cal.App.4th 1308, 1314–1317; People v. Blakely (2014) 225 Cal.App.4th 1042, 1063;
People v. Osuna (2014) 225 Cal.App.4th 1020, 1030-1032, 1038-1039.)


                                              5.
       The court in White further noted the California Supreme Court has explained in
People v. Bland (1995) 10 Cal.4th 991, 997, that arming is established by the availability
and ready access of the weapon. (White, supra, 223 Cal.App.4th at p. 524.) The
Supreme Court has rejected the argument that possession of extra razors and razor blades
while in custody is not inherently deadly and involves the implied threat of violence even
where there is no evidence the defendant displayed the contraband in a provocative or
threatening manner. (People v. Tuilaepa (1992) 4 Cal.4th 569, 589.)
       Defendant was convicted of section 4502 which prohibits possession, among other
things, of sharp instruments. Sections 4502 and 4575 create strict liability for possession
of proscribed weapons and devices. A plain razor blade’s potential for use as a deadly
weapon does not depend on an intended violent use. In determining the potential of a
proscribed item to cause great bodily injury or death, we do not consider the percentage
chance of great bodily injury or death. (See People v. Savedra (1993) 15 Cal.App.4th
738, 745.)
       Defendant argues that because he fumbled in removing the bindle containing razor
blades from his rectum, and because they were so carefully wrapped, the razor blades
were not available for his immediate use. These factual contentions lack merit. Although
Officers Cable and Bojan spent approximately five minutes in the utility room where the
portable toilet was located, Bojan described defendant squatting down, placing his hand
behind himself, and removing the bindle. This process was brief. Defendant was being
watched by two guards as he removed the bindle; he had already told Sergeant Beckett he
had secreted the six razor blades. The procedure as described by Bojan happened without
undue delay, and any fumbling by defendant is attributable to defendant’s apparent
nervousness under the circumstances.
       The time it took for Bojan to open the bindle was likely caused by him having to
clean off the fecal matter and then cautiously unravel it. It is unlikely defendant would
feel so constrained in removing the bindle to quickly acquire the razor blades to use as


                                             6.
weapons. Sergeant Beckett testified razor blades could be manufactured into weapons.
He also testified the blades by themselves are used by inmates to slash other inmates and
prison staff. As we read the facts, defendant had immediate, if not instant, access and
availability to the razor blades within the meaning of People v. Bland, supra, 10 Cal.4th
991 and its progeny. The trial court did not err in denying defendant’s motion for
resentencing.
                                     DISPOSITION
       The trial court’s denial of defendant’s petition for resentencing pursuant to
Proposition 36 is affirmed.




                                             7.
