Hayes

Defendant James Hayes appeals following a conviction for possessing/carrying a “sharp instrument” upon his person while confined in a penal institution. (Pen. Code, § 4502, subd. (a).)

As pertinent, the trial court instructed the jury, “A sharp instrument is an instrument that can be used to inflict injury and that is not necessary for the inmate to have in his possession.” This instruction allowed the jury to conclude that the instrument in question did not have to be “sharp” as that term is commonly used. Under the court’s instruction, the jury could have concluded a baseball bat was a sharp instrument. In closing argument, the prosecutor told the jury that, pursuant to aforementioned instruction, “This is a legal definition of a sharp instrument for this case” and commonsense definitions of “sharp” do not apply.

All this constitutes prejudicial error. As used in section 4502, a “sharp instrument” must be “sharp” as that term is commonly used. The court’s instruction and the prosecutor’s argument encouraged the jury to conclude otherwise.

In the published portion of the opinion, we shall reverse the judgment because the jury instruction created an ambiguity,…