Filed 3/10/14 P. v. Ritter CA5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

RONALD RITTER,

Defendant and Appellant.

F066186

(Super. Ct. No. F09101051)

O P I N I O N

THE COURT

APPEAL from a judgment of the Superior Court of Fresno County. Jane Cardoza, 

Judge.

Catherine White, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Charity 

S. Whitney, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

 

 Before Levy, Acting P.J., Gomes, J., and Poochigian, J.
2

A jury convicted appellant, Ronald Ritter, of possession of a weapon while 

confined in a penal institution (Pen. Code, § 4502, subd. (a)).1 In a separate proceeding 

Ritter admitted five prior prison term enhancements (§ 667.5, subd. (b)) and allegations 

that he had three prior convictions within the meaning of the three strikes law (§ 667, 

subds. (b)-(i)). 

On November 14, 2012, the court sentenced Ritter to an aggregate, indeterminate 

term of 30 years to life, 25 years to life on the substantive offense and five one-year prior 

prison term enhancements. 

On appeal, Ritter contends: 1) his conviction must be reversed because section 

4502 violates the equal protection clauses of the state and federal Constitutions; and 

2) the court erred in imposing one of the five prior prison term enhancements. We will 

find merit to this latter contention and modify the judgment accordingly. In all other 

respects, we affirm.

FACTS

Ritter was an inmate at Pleasant Valley State Prison in Fresno County and had 

been the sole occupant of his cell since December 15, 2008. On May 14, 2009, during a 

search of his cell, a correctional officer found a piece of metal, one and a half inches 

long, that had been sharpened to a point. The item had been taped to the underside of a 

shelf in Ritter’s cell and was capable of being used as an offensive weapon. 

DISCUSSION

The Equal Protection Claim

Preliminarily, we conclude that Ritter forfeited his right to raise his equal 

protection claim on appeal because he did not raise it in the trial court. (People v. 

 

1 All further statutory references are to the Penal Code.
3

Alexander (2010) 49 Cal.4th 846, 880, fn. 14.) However, even if this claim were 

properly before us, we would reject it.

“The Fourteenth Amendment to the United States Constitution and article I, 

section 7, subdivision (a) of the California Constitution both prohibit the denial of equal 

protection of the laws. ‘The equal protection guarantees of [both Constitutions] are 

substantially equivalent and analyzed in a similar fashion’ [citation], and they 

unquestionably apply to penal statutes [citation].

“‘“Broadly stated, equal protection of the laws means ‘that no person or class of 

persons shall be denied the same protection of the laws [that] is enjoyed by other persons 

or other classes in like circumstances in their lives, liberty and property and in their 

pursuit of happiness.’ [Citation.]” [Citation.] ... Thus, ... a threshold requirement of any 

meritorious equal protection claim “is a showing that the state has adopted a 

classification that affects two or more similarly situated groups in an unequal manner.

[Citation.]” [Citation.] “This initial inquiry is not whether persons are similarly situated 

for all purposes, but ‘whether they are similarly situated for purposes of the law 

challenged.’ [Citation.]” [Citation.]’ [Citations.]” (People v. Cruz (2012) 207 

Cal.App.4th 664, 674.)

Section 4502 prohibits an inmate from possessing certain named weapons 

including “any dirk or dagger or sharp instrument[.]” (§ 4502, subd. (a).) For inmates 

charged with possessing a dirk or dagger in prison who are tried by a jury the court must 

read the following portions of CALCRIM No. 2745: “A dirk or dagger is a knife or other 

instrument, with or without a handguard, that is capable of ready use as a stabbing 

weapon that may inflict great bodily injury or death. Great bodily injury means 

significant or substantial physical injury. It is an injury that is greater than minor or 

moderate harm.” (Bench Notes to CALCRIM No. 2745 (2013) p. 656.) CALCRIM 
4

No. 2745 does not require a similar instruction for inmates charged with possessing a 

sharp instrument that does not qualify as a dirk or dagger.

Ritter contends that because section 4502 applies to all prison inmates who 

possess a dirk or dagger and to all prison inmates who possess a sharp instrument, both 

classes of inmates are similarly situated “to merit application of some level of scrutiny to 

determine whether distinctions between the two groups justify the unequal treatment.” 

He further contends that these similarly situated inmates are treated differently because 

the court is only required to instruct on the definition of a dirk or dagger and the 

definition of great bodily injury if the state characterizes the sharp instrument as a dirk or 

dagger. Thus, according to Ritter, “section 4502 and ... CALCRIM [No. 2745] treat[]

similarly situated ... inmates differently depending on the state’s arbitrary 

characterization of the sharp item the inmate possesses, i.e., a dirk, dagger or ‘sharp 

instrument.’” In Ritter’s view, there is no rational basis for treating these groups 

differently based on the state’s characterization of the instrument possessed as a dirk or 

dagger or as a sharp instrument. Ritter is wrong.

Ritter assumes that the group of instruments designated “dirks or daggers” are 

coextensive with the group of instruments designated as “sharp instruments.”

2

 They are 

not. For purposes of section 4502, a dirk or dagger is defined as “a knife or other 

instrument, with or without a handguard, that is capable of ready use as a stabbing 

weapon that may inflict great bodily injury or death.” (CALCRIM No. 2745, italics 

added.) However, a “sharp instrument” includes instruments that have a sharp edge like a 

razor or a sharp point but that do not qualify as a dirk or dagger because, like the short, 

sharpened piece of metal found in Ritter’s possession, they may not be capable of being 

 

2 Ritter cites dictionary definitions of dirk and dagger in support of his claim that all 

dirks and daggers are sharp instruments. However, here we are concerned with the legal 

definition of these items provided by section 4502, not with their dictionary definition.
5

used as a stabbing weapon. Accordingly, we reject Ritter’s contention that inmates like 

him, who are found in possession of a sharp instrument are similarly situated to inmates 

who are found in possession of a dirk or dagger.

“The ‘similarly situated’ prerequisite simply means that an equal protection claim 

cannot succeed, and does not require further analysis, unless there is some showing that 

the two groups are sufficiently similar with respect to the purpose of the law in question 

that some level of scrutiny is required in order to determine whether the distinction is 

justified.” (People v. Nguyen (1997) 54 Cal.App.4th 705, 714.)

Since Ritter has not shown that he is similarly situated to inmates who are charged 

with possessing a dirk or dagger in violation of section 4502, we reject his equal 

protection claim on the merits as well.

The Prior Prison Term Enhancement

Ritter contends the court improperly imposed a prior prison term enhancement for 

the prison term he was serving on his 2005 conviction in Alameda County for attempted 

murder because he had not completed that term yet when he committed the instant 

offense. Respondent concedes and we agree.

When Ritter committed the instant offense in 2009, section 667.5, subdivision (b)

provided, “Except where subdivision (a) applies, where the new offense is any felony for 

which a prison sentence is imposed, in addition and consecutive to any other prison terms 

therefor, the court shall impose a one-year term for each prior separate prison term served 

for any felony; ...”

“[A] prior separate prison term for purposes of section 667.5 is defined as ‘a 

continuous completed period of prison incarceration imposed for the particular offense 

alone or in combination with concurrent or consecutive sentences for other crimes ....’

[Citations.] A prior separate prison term is defined as that time period a defendant has 

spent actually incarcerated for his offense prior to release on parole. [Citation.]” (People 
6

v. Johnson (2006) 145 Cal.App.4th 895, 908.) Ritter had not yet completed the term for 

his 2005 attempted murder conviction when he committed the underlying offense. 

Therefore, the court erred when it imposed a prior prison term enhancement based on that 

conviction.

DISPOSITION

The judgment is modified to strike the one-year sentence enhancement imposed 

for the uncompleted prison term Ritter was serving for his 2005 attempted murder 

conviction and his sentence is reduced to 29 years to life, 25 years to life on the 

substantive offense and four prior prison term enhancements. The trial court is directed 

to prepare an amended abstract of judgment that is consistent with this opinion and to 

forward a certified copy to the Department of Corrections and Rehabilitation. As 

modified, the judgment is affirmed.