People v. Johnson CA2/2

Filed 2/24/22 P. v. Johnson CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B317188

Plaintiff and Respondent, (Kern County
Super. Ct. No. DF012387A)
v.

ARMAH VICTOR JOHNSON,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Kern
County. John W. Lua, Judge. Affirmed as modified.

Carla J. Johnson, under appointment by the Court of
Appeal, for Defendant and Appellant.
 Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Michael P. Farrell, Assistant
Attorney General, Julie A. Hokans and Jeffrey A. White, Deputy
Attorneys General, for Plaintiff and Respondent.
******
Armah Victor Johnson (defendant) attacks his conviction
and 10-year prison sentence for possessing a sharp instrument in
a penal institution (Pen. Code, § 4502, subd. (a))1 on several
grounds. We affirm his conviction, but order his sentence
reduced to eight years.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
On August 6, 2015, defendant was an inmate at the Kern
Valley State Prison. While defendant was being searched prior to
entering the prison’s exercise yard, a guard found in defendant’s
possession a pen-shaped sliver of melted plastic with one end
“sharpened to a point.” The item was found inside a cloth sack
secreted inside the innermost of two pairs of boxer shorts he was
wearing, near defendant’s groin; the sack was attached to a
string that poked out of the waistband of the shorts.
Both the prison guard who discovered the item as well as
the guard’s supervisor opined that the item was a “sharp
instrument.” The item’s sharpened point was able to puncture a
latex glove, which is thinner than human skin, after two stabs.
Both the guard and his supervisor opined that an inmate
would have no legitimate reason to possess such an item on the
exercise yard.

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

2
II. Procedural Background
The People charged defendant with possessing a “sharp
instrument” while confined in a penal institution (§ 4502, subd.
(a)). The People alleged that defendant’s 2001 conviction for
second degree murder—which was why he was in the Kern
Valley State Prison in the first place—constituted a “strike”
within the meaning of our three strikes law (§§ 1170.12, subds.
(a)-(d), 667, subds. (b)-(j)). The People further alleged that
defendant had served two prior prison terms (§ 667.5, subd. (b))
for two prior drug-related offenses.
The matter proceeded to a jury trial. The People called two
witnesses—namely, the prison guard who found the item in
defendant’s boxer shorts and the guard’s supervisor. The defense
called no witnesses. The jury convicted defendant of the charged
offense, and in a bifurcated second phase, found all prior offense
allegations to be true.
The trial court sentenced defendant to 10 years in prison,
comprised of a base sentence of eight years (the upper term of
four years, doubled due to the prior strike) plus one additional
year for each of the two prior prison sentences.
Defendant filed a timely notice of appeal.2
DISCUSSION
In this appeal, defendant argues that (1) section 4502,
subdivision (a) is unconstitutionally vague, (2) the trial court
erred in refusing to give two pinpoint jury instructions, (3) the
prosecutor engaged in misconduct during closing argument, (4)
the trial court may not have complied with the required

2 Pursuant to an order of the Chief Justice on December 20,
2021, this matter was transferred from the Fifth District Court of
Appeal to the Second District Court of Appeal.

3
procedures during an in camera hearing pursuant to Pitchess v.
Superior Court (1974) 11 Cal.3d 531, and (5) the two prior prison
term enhancements are no longer valid due to the enactment of
Senate Bill No. 136 (2019-2020 Reg. Sess.). The People concede
that the last argument has merit, and we agree. As discussed
next, defendant’s remaining arguments are meritless.
I. Vagueness Challenge
Defendant urges that section 4502, subdivision (a) is
unconstitutionally vague—facially and as applied to him—
because it does not define the term “sharp instrument.” This
constitutional challenge is one we review de novo. (California
Cannabis Coalition v. City of Upland (2017) 3 Cal.5th 924, 934.)
Under the due process provisions of both the federal and
California constitutions, “a criminal statute must ‘“be definite
enough to provide (1) a standard of conduct for those whose
activities are proscribed, and (2) a standard for police
enforcement and for ascertainment of guilt.”’ [Citations.]”
(People v. Morgan (2007) 42 Cal.4th 593, 605 (Morgan); People v.
Superior Court (Caswell) (1988) 46 Cal.3d 381, 404; United States
v. Davis (2019) 139 S. Ct. 2319, 2325 (Davis).) For these
purposes, “[o]nly a reasonable degree of certainty [and
definiteness] is required” (Tobe v. City of Santa Ana (1995) 9
Cal.4th 1069, 1107), and we may look to “‘the common
experience[] of mankind’” in assessing whether the statute is too
uncertain or vague (Morgan, at p. 606, quoting People v. Daniels
(1969) 71 Cal.2d 1119, 1128-1129). We indulge a “‘strong
presumption’” that statutes are valid ‘“unless their
unconstitutionality clearly, positively, and unmistakably
appears.’ [Citations.]” (Morgan, at p. 605.)

4
 This strong presumption has not been rebutted here. That
is because, “[w]hen determining whether a statute is ‘sufficiently
specific to meet constitutional standards. . . [,] we look first to the
language of the statute, then to its legislative history, and finally
to decisions construing the statutory language.’” (People v.
Rubalcava (2000) 23 Cal.4th 322, 332.) These sources confirm
that a reasonable person would understand when an item
constitutes a “sharp instrument” that an inmate may not possess
under section 4502. Section 4502 itself requires that the item be
a “sharp instrument” (§ 4502, subd. (a), italics added), and
distinguishing between items that are “sharp” and those that are
not is something “[a] person of ordinary intelligence” can do.
(Caswell, supra, 46 Cal.3d at p. 404.) A beach ball is not “sharp,”
but an object with a “pointy end” is. Our Legislature’s stated
purpose for enacting this statute—namely, to “protect inmates
and correctional staff ‘from the peril of assaults with dangerous
weapons perpetrated by armed prisoners’” (People v. Custodio
(1999) 73 Cal.App.4th 807, 812 (Custodio))—reinforces this
commonly understood meaning of the word “sharp.” And
precedent confirms this plain meaning by defining a “sharp
instrument” as one “with pointed edges” (People v. Scully (2021)
11 Cal.5th 542, 602) or “capable of being used to inflict injury as a
stabbing device.” (Custodio, at p. 812.) Not surprisingly, a solid
wall of California precedent has rejected the argument that
section 4502, subdivision (a) is unconstitutionally vague on its
face. (Custodio, at pp. 810-811; People v. Steely (1968) 266
Cal.App.2d 591, 596-597; People v. Morales (1967) 252 Cal.App.2d
537, 539-541; People v. Crenshaw (1946) 74 Cal.App.2d 26, 27-
28.) The term is also not unconstitutionally vague as applied in
this case because (1) the trial court specifically instructed the

5
jury that “[a] sharp instrument is an object that must be sharp,”
and may include “[a] pointed object,” and (2) the item defendant
possessed in this case unquestionably fits this definition. (Cf.
People v. Hayes (2009) 171 Cal.App.4th 549, 557-560 [jury
instruction that defined “sharp instrument” to eliminate the
requirement that it be “sharp” is invalid].)
Defendant resists this conclusion with four arguments.
First, he argues that the United States Supreme Court’s
decision in Johnson v. United States (2015) 576 U.S. 591
(Johnson) supersedes—and hence invalidates—the precedent
against him. He is wrong. Johnson held that the so-called
“residual clause” of the statute defining a “violent felony” for
purposes of the federal Armed Career Criminal Act of 1984 was
unconstitutionally vague. (Id. at pp. 596-604.) But Johnson’s
holding was a narrow one. The residual clause pronounced that a
“violent felony” included “any felony that ‘involves conduct that
presents a serious potential risk of physical injury to another,’
[citation].” (Id. at p. 593.) What made this language
unconstitutionally vague, Johnson reasoned, was that this
assessment was to be made categorically—that is, by looking to
“the kind of conduct that [the felony at issue] involves in ‘the
ordinary case,’ and to judge whether that abstraction presents a
serious potential risk of physical injury.” (Id. at 596.) Because
the categorical approach “tie[d] the judicial assessment of risk to
a judicially imagined ‘ordinary case’ of a crime, [and] not to real-
world facts or statutory elements,” Johnson held, it left “grave
uncertainty about how to estimate the risk posed by a crime.”
(Id. at p. 597.) Johnson was careful to telegraph that “the
application of a qualitative standard . . . to real-world conduct”
was not impermissibly vague (id. at pp. 603-604), and subsequent

6
cases have reaffirmed that there are no “vagueness problem[s]
with asking a jury to decide whether a defendant’s ‘real-world
conduct’ created a substantial risk of physical violence” (Davis,
supra, 139 S. Ct. 2319, 2327; People v. Frandsen (2019) 33
Cal.App.5th 1126, 1143-1144). Section 4502 is on the
constitutional side of the line Johnson drew because it simply
requires the trier of fact to assess whether the object at issue
qualifies as a “sharp instrument” in the “real world.”
Second, defendant contends that section 4502 lists several
different types of items inmates may not possess (§ 4502, subd.
(a))3; that other statutes define some of those terms, such as
“dirks and daggers” (§ 16470); that no statute defines a “sharp
instrument” or the “risk of harm” that must be associated with
carrying a sharp instrument; and that section 4502 is accordingly
vague with respect to sharp instruments. Again, he is wrong.
The term “sharp instrument” is meant to sweep more broadly
than “dirk or dagger” in order to encompass the broader array of
homemade weapons inmates are likely to create. (People v. La
Grande (1979) 98 Cal.App.3d 871, 873 (La Grande).) That our
Legislature added a descriptive “catch-all” category (that is,
“sharp instrument[s]”) to reach these impossible-to-name items
does not automatically render that category vague. (See People v.
Rodriguez (1975) 50 Cal.App.3d 389, 398-399 [Legislature’s use of

3 Specifically, section 4502, subdivision (a), in pertinent part,
makes it a crime for “[any] person . . . at or confined in any penal
institution” to “possess[] or carr[y] upon his . . . person . . . 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 dagger
or sharp instrument, any pistol, revolver, or other firearm, or any
tear gas or tear gas weapon.” (§ 4502, subd. (a).)

7
catch-all category of “deadly weapon” to “keep pace with man’s
developing capacity to inflict serious harm, a problem
compounded by inmate ingenuity engendered by forced idleness”
does not render that category vague].) Nor is the description
“sharp instrument” itself vague, for the reasons noted above.
And defendant’s complaint that the statute does not define the
“risk of harm” is wholly irrelevant because “risk of harm” is not
an element of the offense.
Third, defendant asserts that section 4502 has no specific
intent requirement. This is true (People v. Wells (1945) 68
Cal.App.2d 476, 481-482; People v. Evans (1969) 2 Cal.App.3d
877, 881), but irrelevant. Although it is true that requiring proof
of specific intent can “save” what might otherwise be a vague
statute, the absence of such a requirement does not render an
otherwise constitutional statute vague.
Lastly, defendant posits that the term “sharp instrument”
is vague as applied here because the prison guard who took the
object from defendant accidentally dropped it on the ground
afterwards, breaking it into two pieces. We reject this argument.
The item was sharpened to a point; it is a sharp instrument. The
fact that it was dropped at some point thereafter does not change
this fact. Defendant speculates that the object may have been
broken to begin with, but he offers no evidence in support of his
speculation.
II. Instructional Issues
Defendant next argues that the trial court erred in refusing
to instruct the jury with two pinpoint instructions. In
appropriate circumstances, a trial court is required to give a
requested jury instruction that “‘pinpoints the defense theory of
the case’” unless that instruction “incorrectly states the law, is

8
argumentative, duplicative [of other instructions], or potentially
confusing [citation], or if it is not supported by substantial
evidence [citation].” (People v. Moon (2005) 37 Cal.4th 1, 30;
People v. Burney (2009) 47 Cal.4th 203, 246.) In assessing
whether substantial evidence supports a requested instruction,
we view the evidence in the light most favorable to the defendant.
(People v. Millbrook (2014) 222 Cal.App.4th 1122, 1137.) We
independently review instructional rulings. (People v. Posey
(2004) 32 Cal.4th 193, 218.)
A. Defining “dirk or dagger”
The trial court refused defendant’s request to instruct the
jury with the statutory definitions of “dirk or dagger.” This
refusal was correct. As noted above, the term “sharp instrument”
includes a larger universe of objects than the term “dirk or
dagger.” (La Grande, supra, 98 Cal.App.3d at p. 873.) As a
result, instructing the jury on the definition of “dirk or dagger”
would have been confusing because an object falling outside that
definition could still be a “sharp instrument.”
Defendant responds with two further arguments. First, he
urges that the trial court did not define the term “sharp
instrument.” This misreads the record because, as noted above,
the trial court did define that term for the jury as “an object that
must be sharp,” including “[a] pointed object.” Second, defendant
suggests that the trial court erred in allowing the prison guard
and his supervisor to opine that the item seized from him was a
“sharp object” because it was “not the officer[s’] decision to make.”
Apart from being forfeited (because defendant did not object to
the impropriety of any expert opinion below), this suggestion is
also without merit because expert witnesses may opine on the
ultimate issue in a case. (Evid. Code, § 805.)

9
 B. “Harmless use” instruction
The trial court also refused defendant’s request to instruct
the jury that it could consider whether the object he possessed
could be used in a harmless way in determining whether it was a
“sharp instrument.” This refusal was also correct. Such an
instruction is warranted only if substantial evidence supports it.
(Bench Notes to CALCRIM No. 2745.) The trial court found that
“there was no evidence . . . that defendant possessed [the] item
for a harmless purpose,” and we agree. Here, the circumstantial
evidence that defendant possessed the 5.25-inch pen-sized object
with a sharpened point for harmful purposes is overwhelming
and unrebutted by any contrary evidence. (E,g., People v. Fannin
(2001) 91 Cal.App.4th 1399, 1403-1404 [possession of object
under “suspicious circumstances” may indicate harmful
purposes]; People v. Grubb (1965) 63 Cal.2d 614, 620-621
[possession of table leg in trunk may indicate harmful purpose].)
Defendant responds that some objects that may be prohibited
under section 4502 have harmless uses (such as pens or pencils),
and posits that it is possible that the 5.25-inch sharpened object
defendant possessed could be a harmless “tool.” To be sure,
section 4502 is contextual—that is, it prohibits the possession of
some objects some of the time but not all of the time. But there
was no evidence defendant was possessing the object at issue in
this case for any harmless purpose. Defendant’s argument on
appeal that the object could possibly have been used as a “tool” in
some other hypothetical context is wholly speculative, and
speculation does not create the substantial evidence necessary to
justify the pinpoint instruction he requested. (See People v.
Ramon (2009) 175 Cal.App.4th 843, 851 [“speculation is not
substantial evidence”].)

10
III. Prosecutorial Misconduct
Defendant argues that the prosecutor committed two
instances of misconduct during closing argument. “A prosecutor’s
conduct during a criminal trial violates the federal Constitution if
it is “‘so egregious that it infects the trial with such unfairness to
make the conviction a denial of due process’” and violates the
California Constitution if it ‘“involves “‘“the use of deceptive or
reprehensible methods to attempt to persuade either the court or
the jury.”’” [Citations].”’ (People v. Collins (2021) 65 Cal.App.5th
333, 340.) In assessing whether a prosecutor has committed
misconduct during closing argument, “we must view the
statements in the context of the [prosecutor’s] argument as a
whole.” (People v. Dennis (1998) 17 Cal.4th 468, 522.) We
generally review claims of prosecutorial error for an abuse of
discretion (People v. Peoples (2016) 62 Cal.4th 718, 792-793), but
independently examine what the law is (People v. Bryant, Smith
and Wheeler (2014) 60 Cal.4th 335, 370), and “objective[ly]”
examine how a “reasonable juror” would likely interpret the
prosecutor’s remarks (People v. Tully (2012) 54 Cal.4th 952,
1043), bearing in mind that “‘“we do not lightly infer” that the
jury drew the most damaging rather than the least damaging
meaning from the prosecutor’s statements. [Citation.]”’ (People v.
Centeno (2014) 60 Cal.4th 659, 667.)
A. Alleged comment on defendant’s failure to
testify
1. Pertinent facts
During his initial closing argument, the prosecutor urged
the jury, “And so ask yourself what evidence did you hear
contrary to the testimony of [the prison guard] and [his
supervisor]?” Defendant objected, “Shifting the burden. Also

11
Fifth Amendment.” After the trial court overruled the objection,
the prosecutor continued: “The burden is entirely upon the People
to prove every element of this case. The defense has the ability to
cross-examine witnesses. That’s one of the cornerstones of the
criminal justice system. . . [The defense attorney] had some
tough questions for [the People’s witnesses.] Going down to [it],
[an] attorney[’s] questions are not evidence, and I think that’s
very important in this, because we heard a lot of questions about
safety concerns and about some sort of other purpose in
possessing a sharp instrument.”
2. Analysis
A prosecutor commits misconduct if he comments—
explicitly or implicitly—on a defendant’s failure to testify.
(People v. Mincey (1992) 2 Cal.4th 408, 446; People v. Hughes
(2002) 27 Cal.4th 287, 371-372 (Hughes).) However, a prosecutor
does not commit misconduct if he comments “‘on the state of the
evidence or on the failure of the defense to introduce material
evidence or call logical witnesses.’” (Hughes, at p. 372, quoting
People v. Hovey (1988) 44 Cal.3d 543, 572.)
The prosecutor did not commit misconduct by asking the
jury, “[W]hat evidence did you hear contrary to the testimony of
[the prison guard] and [his supervisor]?” Although this question
could, in the abstract, be viewed as obtusely commenting on the
defendant’s failure to provide that “contrary” “evidence” himself,
it is more reasonably viewed as a comment on the absence of
evidence in the record—including evidence that could have been
elicited during cross-examination of the People’s witnesses or by
calling other witnesses. Defendant urges that only he and the
prison guard were percipient witnesses to the incident itself, but
this ignores that the prosecutor was speaking to the harmfulness

12
of the object—a topic that could be the subject of expert testimony
by persons who were not witnesses to the incident itself.
Moreover, the prosecutor’s further argument clarified that what
he referred to was the absence of evidence elicited on cross-
examination—not anything only the defendant himself could
have provided.
B. Alleged comment on defendant’s exercise of his
right to a jury trial
1. Pertinent facts
During his rebuttal closing argument, the prosecutor
argued, “This is an item that was specifically designed to have a
sharp end. You don’t have two [sharp] ends. . . You have a
bulbous end that could be used as a handle and a sharp end that
could be used as a stabbing weapon. You might ask yourself why
we are here? The reason we’re here is because the defendant
demanded a right that we all have.” (Italics added.) After
defendant made a general objection to the italicized language and
the court overruled that objection, the prosecutor continued:
“The defendant demanded a right to a jury trial and that’s a right
we all have. The defendant is cloaked in innocence. And when
the People alleged that a crime happened, the defendant stands
trial. Witnesses are called. Witnesses are cross-examined. This
is the reason we’re here. The defendant was given a fair trial.
You have the evidence before you. The evidence supports and
demands a verdict of guilty.”
2. Analysis
A prosecutor commits misconduct if he urges the jury to
punish a defendant for exercising his constitutional rights,
including his right to a trial by jury. (E.g., People v. Schindler

13
(1980) 114 Cal.App.3d 178, 189; Burns v. Gammon (8th Cir. 2001)
260 F.3d 892, 895.)
The prosecutor did not commit misconduct. Although he
mentioned that defendant was exercising his right to trial by
jury, he never asked the jury—explicitly or implicitly—to punish
defendant for doing so. Instead, the prosecutor went on to
4
explain what the jury’s role was to be in evaluating the evidence.
IV. Pitchess Review
Defendant asks us to examine whether the trial court
properly conducted its in camera Pitchess hearing. Where, as
here, the trial court finds good cause to examine a custodial
officer’s personnel file for potentially discoverable information,
the court must conduct an in camera hearing at which it
examines the file and must “make a record of what documents it
examined before ruling on the Pitchess motion.” (People v. Mooc
(2001) 26 Cal.4th 1216, 1229.) The court’s ruling will be upheld
absent an abuse of discretion. (Id. at p. 1228.) Here, the trial
court found good cause to examine three officers’ records and
ordered disclosure of some of those records. We have
independently reviewed the sealed reporter’s transcript of the in
camera hearing, and conclude that the trial court properly
exercised its discretion and that no other personnel records of the
officers at issue were subject to disclosure.

4 Defendant’s argument that his counsel was constitutionally
ineffective for failing to move to strike or ask for an admonition
lacks merit because our consideration of this issue on
the merits obviates any prejudice from counsel’s allegedly
incompetence.

14
V. Sentencing
Defendant argues that the two one-year prior prison
enhancements the trial court imposed are no longer valid because
our Legislature amended section 667, subdivision (b) to limit the
one-year enhancement for prior prison terms only to terms for
“sexually violent offense[s].” (Sen. Bill No. 136 (2019-2020 Reg.
Sess.)), that he is entitled to the retroactive application of this
ameliorative amendment to his nonfinal conviction (In re Estrada
(1965) 63 Cal.2d 740, 742), and that his two prior drug
convictions are not for “sexually violent offense[s].” As the People
concede, defendant is correct. (E.g., People v. Lopez (2019) 42
Cal.App.5th 337, 339-342; People v. Winn (2020) 44 Cal.App.5th
859, 872-873.) Accordingly, the imposition of the two, one-year
enhancements pursuant to section 667.5, subdivision (b) is
stricken. (Lopez, at p. 342 [striking the prison priors but not
remanding for resentencing where the trial court imposed the
maximum sentence].)

15
 DISPOSITION
The trial court is ordered to strike the two, one-year
enhancements for prior prison terms. As modified, the judgment
is affirmed. The trial court is directed to prepare a corrected
abstract of judgment and to forward a copy to the Department of
Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.
HOFFSTADT

We concur:

_________________________, P. J.
LUI

_________________________, J.
ASHMANN-GERST

16