Custodio

A jury convicted defendant Regino Custodio of possessing a sharp instrument while confined in a penal institution (Pen. Code, § 4502, subd. (a); further section references are to this code) and found that he had a prior serious felony conviction within the meaning of the three strikes law (§ 667, subds. (d) & (e)) and had served two prior separate prison terms within the meaning of section 667.5, subdivision (b). He was sentenced to an aggregate prison term of eight years.

In the published part of this opinion, we reject defendant’s assertion that section 4502, subdivision (a) is unconstitutionally vague. As we shall explain, viewing the statute according to the fair import of its terms and its purpose, a person of ordinary intelligence would know what it does and does not prohibit. Considering the nature of the item found in defendant’s cell (including its tapered shape and the length and firmness of its sharp metal point) and the fact it.is not a necessary possession for an inmate, the person would know it is a sharp instrument which falls within the prohibition of section 4502, subdivision (a).

In the unpublished portion of our opinion, we find merit in only one of…