Strunk

A jury convicted Gregory John Strunk of possessing a sharp instrument while lawfully confined in a state prison. (Pen. Code, § 4502.) In a bifurcated court proceeding, Strunk also admitted the truth of a prior prison term enhancement allegation. (§ 667.5, subd. (b).) The trial court sentenced him to a total five-year consecutive term.

Strunk appeals, contending the trial court committed prejudicial error by failing to sua sponte instruct the jury on the lesser included offense of attempt, by instructing the jury under CALJIC No. 2.90 on the reasonable doubt standard, and by imposing a sentence in violation of the California Rules of Court and therefore in excess of its jurisdiction. We affirm Strunk’s conviction, but remand for resentencing.

Facts

On Wednesday, February 24, 1993, Strunk was an inmate at the R. J. Donovan Correctional Facility in San Diego County. On that date, Correctional Officer Carl A. Berner was assigned to the “Facility 2 Education Compound” as a roving guard to oversee the security and safety of instructors and inmates in the compound’s six classrooms. Two shifts of vocational welding were taught in one of the classrooms. The “A” shift used the…