Filed 3/29/16 P. v. Ramos 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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,

Plaintiff and Respondent,

v.

JOSE RODRIGUEZ RAMOS,

Defendant and Appellant.

 B265180

 (Los Angeles County

 Super. Ct. No. BA219022)

APPEAL from an order of the Superior Court of Los Angeles County. 

William C. Ryan, Judge. Affirmed.

California Appellate Project, Jonathan B. Steiner, Executive Director, and 

Richard B. Lennon, Staff Attorney, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Noah P. 

Hill, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________
2

Jose Rodriguez Ramos (appellant) was convicted of a possessing a weapon while 

in prison (Pen. Code, § 4502, subd. (a).)1 The trial court found true the allegations that 

appellant had suffered two prior convictions for serious felonies. (Former §§ 667, subds.

(b)-(i), 1170.12, subds. (a)-(d).) Pursuant to the “Three Strikes” law, appellant was 

sentenced to 25 years to life. The trial court ordered that the sentence run consecutive to 

a sentence appellant was already serving. (People v. Ramos (Oct. 31, 2002, B156047) 

[nonpub. opn.] (Ramos I).)

In his first appeal, appellant argued that “(1) there was insufficient evidence that 

appellant, who had just been searched and handcuffed, knowingly possessed the weapon; 

(2) the trial court abused its discretion by failing to strike one of appellant’s prior 

convictions; and (3) appellant’s sentence of 25 years to life constitutes cruel and unusual 

punishment under the circumstances of this case and must be modified.” (Ramos I, 

supra, B156047, at p. 2.) We affirmed the judgment.

Now, in his second appeal, appellant challenges the denial of his Proposition 362

petition for recall and resentencing. 

We find no error and affirm.

FACTS3

“I. Prosecution Evidence

“On May 21, 2001, Los Angeles County Deputy Sheriff Daniel Perez was working

in the module housing high-profiled inmates in the Los Angeles County men’s jail. He

 

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

Section 4502, subdivision (a) provides: “Every person who, while at or confined 

in any penal institution, . . . possesses or carries upon his or her person or has under his or 

her custody or control . . . any dirk or dagger or sharp instrument . . . is guilty of a felony 

and shall be punished by imprisonment in the state prison for two, three, or four years, to 

be served consecutively.”

2

Proposition 36 is the Three Strikes Reform Act of 2012. (Teal v. Superior Court

(2014) 60 Cal.4th 595, 596.)

3 We have utilized the statement of facts from Ramos I to establish the background 

of this case.
3

and other officers were engaged in searching the inmates in their cells prior to taking

them to the roof for recreation. The officers performed a strip search of the inmates and

checked the inmates’ clothing. After the men were dressed, they were handcuffed

through an opening in the cell door. The inmates’ hands were behind their backs.

“Deputy Perez observed appellant as he stepped out of his cell. Instead of

following the path he should have taken, appellant walked the other way, which was

unusual. Appellant stopped at a cell and then came back and quickly exited after all the

other inmates were almost out of the module. Deputy Perez did not see anything being

passed to appellant, and he did not see appellant put anything in his pocket.

“Deputy Perez testified at appellant’s trial that repeat searches of the inmates are

randomly conducted in the hallway outside the module. The inmates are ordered to stop

there and face the wall. Deputy Perez approached appellant and saw a bulge in his right

front pocket. Deputy Perez put his hand in appellant’s pocket and extracted a metal

shank. Appellant looked at it and looked away without saying anything.

“Deputy Perez testified that he would never place a shank in an inmate’s pocket so

that the inmate would get additional time in prison. He stated that the officers were very 

concerned about their own security, and that such an action would endanger himself and

other officers. Deputy Perez said that neither he nor the other officers present (Deputies

Miguel Campos, Armando Barrera, and Miranda) put the shank in appellant’s pocket.

Deputy Perez never threatened appellant and did not say, ‘Asshole, I’m going to get you’

to appellant. Deputy Perez stated that it was county jail policy not to test shanks for

fingerprints.

“Deputy Armando Barrera also saw appellant exit his cell on the morning of

May 21, 2001. He saw appellant walk to the rear in the opposite direction of the ‘traffic,’

which was unusual. He saw Deputy Perez withdraw the shank from appellant’s pocket. 

He did not plant the shank on appellant. 

“Deputy Campos saw appellant exit his cell and go towards the back cells as all of

the other inmates began walking out. Appellant took approximately 10 steps in the

wrong direction, from the center of the line to the back. Appellant then followed behind
4

the others. He saw the shank after Deputy Perez pulled it from appellant’s pocket.

Neither he nor Deputy Miranda planted the shank on appellant. Deputy Campos heard no

conversation between Deputy Perez and appellant.

“II. Defense Evidence

“Appellant testified in his defense. He admitted having two convictions for 

assault with a weapon. When he was allowed out of his cell on the day in question, he 

walked towards the front of the hallway. He did not walk against traffic. In the hallway, 

facing the wall, he was aware of officers at his back. He did not understand what they 

were saying in English. After the officers were finished talking, they sat appellant on a 

bench in the hallway and cuffed him to the bench. The officers showed him a piece of 

metal and asked him what it was. He told them he did not know. The object was similar 

to the shank in the People’s exhibit. Appellant never had the object in his pocket and did 

not know where it came from. He thought someone might have slipped the object in his

pocket. He was never aware of its presence.

“Steven Mattson (Mattson) testified that he was also an inmate going to the roof to

exercise that day. His cell was three cells farther away from the exit door than

appellant’s cell. While the men were still near their cells, he heard Deputy Perez say to

appellant: ‘You are a little asshole. I’m going to get you.’ Ramos asked Deputy Perez

why he was giving him a hard time. Mattson asked Ramos what was up, and Ramos

replied: ‘I don't know, dude. He’s got a hard-on for me or something.’ He saw Deputy

Perez pat down appellant in the hallway. Mattson acknowledged being a convicted felon

‘a couple of times.’

“Adolfo Bojorquez was another fellow inmate of appellant's who was on his way 

to the roof that day. He saw all the deputies walk up to appellant in the hallway. One of 

the deputies was holding something, but Bojorquez could not see what it was. He 

believed it was impossible for appellant to have anything in his pocket because of the 

thorough prior search. Deputies plant objects on inmates they do not like. Bojorquez 

refused to answer the prosecutor’s questions as to whether or not he murdered a Long 

Beach police officer and shot another officer numerous times.
5

“III. Rebuttal

“Deputy Perez was doubtful that inmate Mattson was one of the inmates who went

to the roof the day of the incident. After Mattson testified, Deputy Perez verified on the

jail computer that Mattson had been housed in the discipline area module on the day of

the incident. This module is on the other side of the jail from the area where appellant

was housed. The officer in charge of custody of records at the jail testified that Mattson

was in the ‘high-power’ disciplinary module from April 21, 2001, through May 23, 2001, 

and he produced two reports reflecting this.” (Ramos I, supra, B156047, at pp. 2–4)

IV. The Petition For Recall and Resentencing

Appellant filed his Proposition 36 petition on July 9, 2014. CT 15) 

The People opposed the petition, arguing that appellant was ineligible for 

Proposition 36 relief because he was armed with a deadly weapon during the commission 

of the current offense, and because he was a violent, unrepentant criminal who posed a 

danger to public safety.

For the hearing, the People submitted the Ramos I opinion and the transcripts of 

the trial testimony of Deputy Perez, Deputy Barrera and Deputy Campos.

The trial court denied the petition on the ground that appellant was armed with a 

deadly weapon during the commission of the current offense and therefore was not 

eligible for recall and resentencing. 

This timely appeal followed.

DISCUSSION

Proposition 36 “created a postconviction release proceeding whereby a 

[defendant] who is serving an indeterminate life sentence imposed pursuant to the three 

strikes law for a crime that is not a serious or violent felony and who is not disqualified, 

may have his or her sentence recalled and be sentenced as a second strike offender unless 

the court determines that resentencing would pose an unreasonable risk of danger to 

public safety. [Citation.]” (People v. Yearwood (2013) 213 Cal.App.4th 161, 167–168.) 

A defendant is disqualified if, “[d]uring the commission of the current offense, the 

defendant used a firearm, was armed with a firearm or deadly weapon, or intended to 
6

cause great bodily injury to another person.” (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd.

(c)(2)(C)(iii), 1170.126, subd. (e)(2).)4

A defendant will be considered armed with a deadly weapon if the weapon was

available for use, either offensively or defensively. In other words, he or she is armed if 

the weapon was under his or her immediate dominion and control. (People v. Osuna

(2014) 225 Cal.App.4th 1020, 1029 (Osuna); People v. White (2014) 223 Cal.App.4th 

512, 524 (White).) As held in recent appellate decisions, a defendant who was armed 

with a deadly weapon while committing the third strike offense of unlawfully possessing 

that weapon is ineligible for recall and resentencing. (Ibid; Osuna, at pp. 1032–1040; 

People v. Blakely (2014) 225 Cal.App.4th 1042, 1054 (Blakely); People v. Brimmer

(2014) 230 Cal.App.4th 782, 798 (Brimmer); People v. Hicks (2014) 231 Cal.App.4th 

275, 284 (Hicks).)

Appellant does not dispute that he is ineligible if we were to follow Osuna, White, 

Blakely, Brimmer and Hicks. On appeal, his argument is that those cases were wrongly 

decided because they misinterpreted the controlling statutes. Thus, the sole issue on 

appeal is statutory interpretation.

“In interpreting a voter initiative such as [a proposition], we apply the same 

principles that govern the construction of a statute. [Citations.]” (People v. Canty (2004) 

32 Cal.4th 1266, 1276.)

Under the established rules of statutory construction, “we begin by examining the 

language of the statute (or regulation) itself, giving the words their ordinary and usual 

 

4

Section 1170.126 was added by Proposition 36. Section 1170.126, subdivision (e) 

provides: “An inmate is eligible for resentencing if: [¶] (2) The inmate’s current 

sentence was not imposed for any of the offenses appearing in clauses (i) to (iii), 

inclusive, of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or 

clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2) of subdivision (c) of 

Section 1170.12.” Sections 667, subdivision (e)(2)(C)(iii) and 1170.12, subdivision 

(c)(2)(C)(iii) both provide that a defendant shall be sentenced as a second strike offender 

unless the prosecutor pleads and proves that “[d]uring the commission of the current 

offense, the defendant used a firearm, was armed with a firearm or deadly weapon, or 

intended to cause great bodily injury to another person.”
7

meaning. [Citation.] We seek to avoid any interpretation that renders part of the statute 

‘“meaningless or inoperative”’ or that makes any language mere surplusage. [Citations.]

When the language is clear, we apply the language without further inquiry. [Citations.] 

‘In determining legislative intent, courts look first to the words of the statute itself: if 

those words have a well-established meaning . . . there is no need for construction and 

courts should not indulge in it.’ [Citation.] [¶] Only if the language is ambiguous and 

susceptible of more than one reasonable meaning do we consider ‘a variety of extrinsic 

aids, including the ostensible objects to be achieved, the evils to be remedied, the 

legislative history, public policy, contemporaneous administrative construction, and the 

statutory scheme of which the statute is a part.’ [Citation.]” (Aleman v. Airtouch 

Cellular (2012) 209 Cal.App.4th 556, 568–569.)

First, appellant argues that the phrase “[d]uring the commission of the current 

offense, the defendant used a . . . deadly weapon” is not implicated unless the deadly 

weapon facilitated the current offense. (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. 

(c)(2)(C)(iii).) He contends that “[h]aving a gun available does not further or aid in the 

commission of the crime of possession of a firearm” (Osuna, supra, 225 Cal.App.4th at 

p. 1032) and, as a consequence, a weapon possession offense in which a defendant was 

armed with a deadly weapon does not implicate sections 667, subdivision (e)(2)(C)(iii) 

and 1170.12, subdivision (c)(2)(C)(iii). In other words, he contends the arming must be 

tethered to the current offense. This very argument was rejected in Osuna. It noted that 

the statutes require “a temporal nexus between the arming and the underlying felony, not 

a facilitative one.” (Osuna, at p. 1032.) This is because “‘[d]uring’ is variously defined 

as ‘throughout the continuance or course of’ or ‘at some point in the course of.’ 

[Citation.]” (Ibid.) This interpretation comports with the plain language of the statutes, 

and we adopt it.

5

 

5 Appellant complains that Osuna does “not explain why the definition of ‘during,’ 

which indeed includes a temporal requirement, means only a temporal connection; they 

just assume so.” This is untrue. Osuna examined the dictionary definition of “during” 

and gave effect to its plain meaning. (Osuna, supra, 225 Cal.App.4th at p. 1032.)
8

Coming at this first argument from a different direction, appellant urges us to 

conclude that we should harmonize Proposition 36 with firearm enhancements, such as 

section 12022, subdivision (a)(1). It provides that “a person who is armed with a firearm 

in the commission of a felony or attempted felony shall be punished by an additional and 

consecutive term of imprisonment pursuant to subdivision (h) of Section 1170 for one 

year, unless the arming is an element of that offense.” (§ 12022, subd. (a)(1).) Case law 

establishes that for a defendant to be subject to additional punishment for being armed 

with a firearm in the commission of a felony, the arming must have a facilitative nexus, 

i.e., the arming must have furthered the commission of the underlying felony. (Osuna, 

supra, 225 Cal.App.4th at p. 1031; People v. Bland (1995) 10 Cal.4th 991, 1002.) 

According to appellant, the electorate must have intended the phrase “during the 

commission of the current offense” in sections 667, subdivision (e)(2)(C)(iii) and 

1170.12, subdivision (c)(2)(C)(iii) and the phrase “in the commission of a felony” in 

section 12022, subdivision (a)(1) to mean the same thing. But the language is different, 

and we agree with Osuna, which stated, “By including as a disqualifying factor an 

inmate’s mere intent, during commission of the current offense, to cause great bodily 

injury to another person, the electorate signaled its . . . intent that disqualifying conduct 

not be limited to what is specifically punishable as an offense or enhancement. 

Apparently recognizing the maxim expressio unius est exclusio alterius—the expression 

of some things in a statute necessarily means the exclusion of other things not expressed 

[citation]—voters rendered ineligible for resentencing not only narrowly drawn 

categories of third strike offenders who committed particular, specified offenses or types 

of offenses, but also broadly inclusive categories of offenders who, during commission of 

their crimes—and regardless of those crimes’ basic statutory elements—used a firearm, 

were armed with a firearm or deadly weapon, or intended to cause great bodily injury to 

another person.” (Osuna, supra, 225 Cal.App.4th at p. 1036.)6

 

6 Notably, Hicks stated: “Subdivision (e)(2) of section 1170.126 allows 

resentencing if ‘[t]he inmate’s current sentence was not imposed for any of the offenses 

appearing [in the cited statutes].’ One of those statutory provisions . . . does not identify 
9

Second, appellant argues that “[t]he plain language of [sections 667, subdivision 

(e)(2)(C)(iii) and 1170.12, subdivision (c)(2)(C)(iii)] suggest[s] that the factors listed in 

subdivision (iii) must attach to the current offense as an addition and not just be an 

element of the current offense.” He apparently contemplates that he is eligible because 

being armed with a deadly weapon was an element of his current offense, and therefore it 

does not disqualify him. We disagree for two reasons. Arming is not an element of his 

current offense under section 4502, subdivision (a). Even if it was, we do not perceive 

how that would assist his cause. The plain language of the relevant statutes indicates it is 

triggered if a defendant was armed during the commission of the current offense, and 

there is no qualifier.

As a corollary, appellant posits that sections 667, subdivision (e)(2)(C)(iii), 

1170.12, subdivision (c)(2)(C)(iii) and 1170.126, subdivision (e)(2) “are not meant to 

exclude crimes in which one of the factors is an element of the offense, and therefore, 

would render every commission of the particular offense ineligible.” He again suggests 

that if arming is an element of a defendant’s current crime, then the defendant is eligible 

under Proposition 36. His argument is purely academic because arming is not an element 

of his current offense. In any event, his interpretation violates the plain language of the 

statutes, which is triggered so long as there was arming during the commission of the 

current offense.

Third, appellant suggests that “[n]one of the subdivisions related to the current 

offense disqualifies defendants who are serving sentences for the mere commission of 

 

specific offenses but, instead, identifies circumstances of the offense—that is, using a 

firearm, being armed with a firearm or deadly weapon, or intending to cause great bodily 

injury. [Citations.] . . . [¶] The eligibility criteria here refer to something that occurs 

‘[d]uring the commission of the current offense,’ that being ‘the defendant used a 

firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily 

injury to another person.’ [Citations.] By referring to those facts attendant upon 

commission of the actual offense, the express statutory language requires the trial court to 

make a factual determination that is not limited by a review of the particular statutory 

offenses and enhancements for which a petitioner’s sentence was imposed.” (Hicks, 

supra, 231 Cal.App.4th at pp. 284–285.)
10

possession of a concealed dirk or dagger. Applying basic principles of statutory 

construction to that omission leads to the conclusion that the simple violation of [section 

4502] is not covered.” The meaning of this statement is unclear. If appellant is 

suggesting that he is not ineligible because section 4502, subdivision (a) is silent on the 

topic, we reject the suggestion because the relevant statute under Proposition 36 is section 

1170.126, subdivision (e)(2), and its incorporation of sections 667, subdivision 

(e)(2)(C)(iii) and 1170.12, subdivision (c)(2)(C)(iii) by reference. If appellant is 

suggesting that he is not ineligible because sections 667, subdivision (e)(2)(C)(iii) and 

1170.12, subdivision (c)(2)(C)(iii) do not specifically state that they apply to a defendant 

who possessed a concealed dirk or dagger, we reject the suggestion because they broadly 

apply to a defendant who was armed with a deadly weapon, and there is no dispute that 

appellant was armed with a deadly weapon. 

Fourth, appellant notes that the statutes refer “to being armed ‘during the 

commission of the current offense,’” and then he states that this “qualifying language 

only makes sense if there is another offense to which the arming attaches.” In essence, 

appellant urges that under sections 667, subdivision (e)(2)(C)(iii) and 1170.12, 

subdivision (c)(2)(C)(iii), there must be an arming offense separate from the current 

offense, whatever that might be. We decline to accept appellant’s interpretation. We 

must interpret a statute in a reasonable and commonsense manner. (Klajic v. Castaic 

Lake Water Agency (2001) 90 Cal.App.4th 987, 997.) Because sections 667, subdivision 

(e)(2)(C)(iii) and 1170.12, subdivision (c)(2)(C)(iii) do not refer to an arming offense 

separate from the current offense, it would be unreasonable to construe them as requiring 

a separate arming offense to be triggered. Insofar as this fourth argument is a rehash of 

appellant’s first argument regarding the need for a facilitative nexus, our reasoning on the 

first argument applies here, too.

Fifth, appellant maintains that if the electorate that voted for Proposition 36 had 

intended to exclude all possession-of-weapon crimes from its reach, it would have said 

so. We find this argument unpersuasive given that it is based on a false premise. Case 

law establishes that “‘[a] defendant has actual possession when [a] weapon is in his 
11

immediate possession or control. He has constructive possession when the weapon, 

while not in his actual possession, is nonetheless under his dominion and control, either 

directly or through others. [Citations.]’ [Citation.]” (People v. Osuna, supra, 225 

Cal.App.4th at p. 1029.) Thus, a person in actual possession of a weapon is armed, but a 

person in constructive possession may not be. (Id. at p. 1030.) Under Proposition 36, not 

all possession-of-deadly-weapon crimes are disqualifying because a defendant can be in 

constructive possession without being armed.7 Regardless, there is no need for us to 

consider extrinsic aids when interpreting Proposition 36 because, as we have already 

indicated, the meaning of the relevant statues is unambiguous. 

Sixth, appellant says Osuna, White, Blakely, Brimmer and Hicks “make no sense 

in light of the fact that the statutory punishment for a violation of section 4502 is one of 

the lesser range of sentences in the Penal Code. Obviously, the electorate and their 

legislators do not see this crime as one of the more dangerous crimes that require lengthy 

detention. Yet, under these courts’ interpretations, the vast majority of defendants who 

knowingly possess a gun or other weapon would be barred from the benefits of 

Proposition 36.” Impliedly, he suggests that because a violation of section 4502, 

subdivision (a), by itself, does not give rise to a lengthy sentence, the electorate could not 

have intended that a defendant who was armed during a violation of section 4502, 

subdivision (a) would be ineligible under Proposition 36. This logic does not hold. 

Because the plain language controls, we need not look to legislative history when 

construing Proposition 36. That observation aside, there is nothing in the record to 

indicate that the electorate specifically considered section 4502 when voting for 

Proposition 36. What it considered, and what is at issue here, is whether a current third 

 

7 White explained: “[W]hile the act of being armed with a firearm—that is, having 

ready access to a firearm [citation]—necessarily requires possession of the firearm, 

possession of a firearm does not necessarily require that the possessor be armed with it. 

For example, a convicted felon may be found to be a felon in possession of a firearm if he 

or she knowingly kept a firearm in a locked offsite storage unit even though he or she had 

no ready access to the firearm and, thus, was not armed with it.” (White, supra, 223 

Cal.App.4th at p. 524.)
12

strike offense can be recalled and a defendant resentenced if he or she was armed with a 

deadly weapon during that current offense.8 

Seventh, appellant posits that “had the intent been to render ineligible for a 

sentence recall anyone who had a weapon available at the time of the offense, 

irrespective of whether such availability furthered the crime, it would have been much 

easier to make such an exclusion clear by so stating. . . . Drafters attempting to make a 

broader exclusion would not use a term such as ‘arming’ which has been construed to 

also require a facilitative nexus.” This argument is not based on a rule of statutory 

construction, so we could pass on it without comment. Nonetheless, we wish to respond 

with the following points. Sections 667, subdivision (e)(2)(C)(i)-(ii) and 1170.12, 

subdivision (c)(2)(C)(i)-(ii) refer to specific offenses, such as certain drug and sex 

offenses. With respect to sections 667, subdivision (e)(2)(C)(iii) and 1170.12, 

subdivision (c)(2)(C)(iii), the drafters chose to create broad categories of disqualification 

for Proposition 36 relief. We find it indisputable that the design of the statutes was 

intentional. Regarding the use of arming language, there is nothing about it that requires 

second guessing. Contrary to what appellant suggests, the drafters used different 

language in Proposition 36 (“during the commission of”) than in firearm enhancement 

statutes (“in the commission of”), and we therefore decline to construe Proposition 36 to 

coincide with firearm enhancement law. 

Eighth, appellant argues that Proposition 36 was intended to release persons who 

pose little or no risk to the public, a defendant who carries a concealed dirk or dagger in 

prison qualifies as one of those low risk persons, and therefore Proposition 36 does not 

 

8

Further to this point, we note that Blakely aptly stated: “In enacting section 

1170.126 as part of Proposition 36, the issue before the voters was not whether a 

defendant could or should be punished more harshly for a particular aspect of his or her 

offense, but whether, having already been found to warrant an indeterminate life sentence 

as a third strike offender, he or she should now be eligible for a lesser term.” (Blakely, 

supra, 225 Cal.App.4th at p. 1054.)
13

make such a defendant ineligible.

9

 We cannot accept this argument. As our Supreme 

Court noted, dirks “have been held to be deadly weapons as a matter of law; the ordinary 

use for which they are designed establishes their character as such. [Citations.]” (People 

v. Aguilar (1997) 16 Cal.4th 1023, 1029.) A defendant who has carried a concealed dirk 

or dagger in prison during the commission of a third strike offense would pose a risk to 

the public if that defendant was released. More importantly, this argument fails because 

the plain language of the statutes is clear, and there is no reason for us to consider 

anything other than that language.10

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

__________________________, J.

ASHMANN-GERST

We concur:

_____________________________, P. J.

BOREN

____________________________, J.

CHAVEZ

 

9

There is no dispute that the shank found on appellant’s person qualified as a dirk 

or dagger.

10 In his reply brief, appellant expounds upon his eighth argument by stating: 

“Having a weapon readily available for use, even in a jail setting, is generally not 

considered dangerous. It only becomes dangerous when it might facilitate a crime, when 

it might be used for violence.” We disagree. It is always dangerous for a third strike 

felon to be armed with a deadly weapon.