Romo

Defendant Pete Duran Romo and his codefendants, Searcy and Earl, were inmates of Deuel Vocational Institution. After a knife fight in the institution they were indicted on two charges: count one. assault with intent to commit murder in violation of Penal Code section 217; count two, possession of a deadly weapon by a state prison *591 inmate in violation of Penal Code section 4502. 1 Searcy pleaded guilty. Romo and Bari were tried.

At the trial the court instructed the jury that it could find the defendants guilty of violating Penal Code section 4501 (assault with a deadly weapon by a state prison inmate) as a lesser included offense under count one of the indictment. 2 The jury returned verdicts finding the defendants guilty of violating section 4501, as a so-called lesser included offense within count one of the indictment, and of violating section 4502. Romo alone appeals from the ensuing judgment.

Application of Penal Code Sections 4501-4502 to Youth Authority Wards in Deuel.

Certified records in evidence demonstrate that Romo had been transferred to Deuel Vocational Institution as a ward of the California Youth Authority. He contends that at the time of his offense he did…

I dissent in part and concur in part. I am unable to agree with that portion of the majority opinion which holds that Penal Code sections 4501 and 4502 do not apply to Deuel inmates. As the majority opinion points out, both sections relate to persons “confined in a state prison,” and I agree that Deuel Vocational Institution cannot be regarded as “a state prison” for all purposes. I disagree, however, that the Legislature did not intend it to be so regarded under sections 4501 and 4502.

It is true that Penal Code section 6082 does not effect that result in the case at bench. That section refers only to “faeili *599 ties . . . for the confinement ... of persons in the legal custody of the Department of Corrections. ’ ’ Defendant Romo was not one of those inmates of Deuel who are under the legal custody of the Department of Corrections. There arc, as the majority opinion states, inmates at Deuel who are, as well as those under the custody of the Youth Authority.

Penal Code section 2041, however, provides that “The provisions of Part 3 of this code [included within which are sections 4501 and 4502] apply to the Deuel Vocational Institution and to the persons confined therein so far…

Defendant Pete Duran Romo and his codefendants, Searcy and Earl, were inmates of Deuel Vocational Institution. After a knife fight in the institution they were indicted on two charges: count one, assault with intent to commit murder in violation of Penal Code section 217; count two, possession of a deadly weapon by a state prison inmate in violation of Penal Code section 4502. [fn. 1] Searcy pleaded guilty. Romo and Earl were tried.

At the trial the court instructed the jury that it could find the defendants guilty of violating Penal Code section 4501 (assault with a deadly weapon by a state prison inmate) as a lesser included offense under count one of the indictment. [fn. 2] The jury returned verdicts finding the defendants guilty of violating section 4501, as a so-called lesser included offense within count one of the indictment, and of violating section 4502. Romo alone appeals from the ensuing judgment.

Application of Penal Code Sections 4501-4502 to Youth Authority Wards in Deuel.

[1] Certified records in evidence demonstrate that Romo had been transferred to Deuel Vocational Institution as a ward of the California Youth Authority. He contends that at the…