5 Cal.App.4th 72, C009373, People v. Wharton

CourtCalifornia Court of Appeals
Citation5 Cal.App.4th 72,6 Cal.Rptr.2d 673
Date02 April 1992
PartiesPeople v. Wharton
Docket NumberC009373

Page 72

5 Cal.App.4th 72

6 Cal.Rptr.2d 673

THE PEOPLE, Plaintiff and Respondent,

v.

EDWARD MILTON WHARTON III, Defendant and Appellant.

C009373

California Court of Appeal, Third District

April 2, 1992

[Opinion certified for partial publication. [*] ]

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[Copyrighted Material Omitted]

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COUNSEL

Peter Brixie, E. Katherine Dashiell and Mark E. Cutler under appointments by the Court of Appeal, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Acting Assistant Attorney General, Edmund D. McMurray, Jane L. Lamborn and Leslie B. Fleming, Deputy Attorneys General for Plaintiff and Respondent.

OPINION

MARLER, J.—

Defendant was charged with carrying a dirk or dagger concealed upon his person (Pen. Code, § 12020, subd. (a); hereafter all undesignated sections references are to the Penal Code) and it was alleged he served a prior prison term within the meaning of section 667.5, subdivision (b). A jury convicted defendant of the section 12020 offense, and the trial court found true the prior prison term allegation. Defendant was placed on three years' probation and ordered to serve sixty days in the county jail as a condition of probation.

On appeal, defendant contends there is insufficient evidence to support his conviction and that the court erred in instructing the jury. He also contends

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he is entitled to two days of conduct credit. Defendant's latter contention has merit. We shall modify the judgment accordingly but affirm in all other respects.

Factual and Procedural Background

On December 16, 1988, Butte County Deputy Sheriff Rubinhoff was dispatched to a particular alleyway in Oroville to investigate a landlord-tenant dispute. As he drove into the alleyway, he saw a car that was traveling toward him stop suddenly. The vehicle then "peeled" backward at a "high rate of speed." Deputy Rubinhoff pursued the car, which was driven by defendant.

After defendant stopped his car and got out, Deputy Rubinhoff asked him for identification. As defendant was getting his wallet, the deputy noticed the tip of a silver-colored object in defendant's left rear pants pocket. Because he thought the object could be a knife, Deputy Rubinhoff conducted a patdown search which disclosed that defendant had a knife with a double- edged blade in his pocket. According to Deputy Rubinhoff, defendant stated, "That is my dagger knife," and defendant's companion Neva Kennedy stated defendant carried the knife for protection.

Discussion

I

Section 12020, subdivision (a) provides in pertinent part: "Any person in this state ... who carries concealed upon his or her person any dirk or dagger, is guilty of a felony, ..."

Defendant contends there is insufficient evidence of concealment because the tip of the knife was protruding from his pocket. We disagree. Only substantial concealment is required. (People v. Fuentes (1976) 64 Cal.App.3d 953, 955 [134 Cal.Rptr. 885] [dirk with handle protruding from waistband found to be a concealed weapon].) "A defendant need not be totally successful in concealing a dirk to be guilty of violation of Penal Code section 12020, subdivision (a)." (People v. Fuentes, supra, 64 Cal.App.3d at p. 955.)

Here, the jury was permitted to examine the knife, which our perusal discloses is approximately seven and three-eighths inches long. The jury was apprised that only one and one-half to two inches of the blade were protruding from defendant's pocket. These facts support a finding of substantial concealment.

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Defendant also contends there is insufficient evidence to support his conviction because the knife in the present case is not a dirk or dagger as a matter of law. The knife has a rigid, sharp-pointed blade, which is approximately three and one-half inches long and sharpened on both sides. The blade is attached to a handle that does not have a handguard to prevent the hand of the user from slipping onto the blade if the weapon is used for stabbing. Relying primarily on In re Conrad V. (1986) 176 Cal.App.3d 775 [222 Cal.Rptr. 552], defendant contends the absence of a handguard precludes a finding that the knife is a dirk or dagger.

In In re Conrad V., supra, the court found that a weapon that was similar to a push dagger (see Peterson, American Knives: The First History and Collectors' Guide (1958) p. 64) was not a dirk or dagger as a matter of law because it did not have a handguard and because its blade was only one and one-half inches long and sharpened on one side. (176 Cal.App.3d at p. 778; but see People v. Pettway (1991) 233 Cal.App.3d 1067 [285 Cal.Rptr. 147].) In support of its holding that dirks or daggers must have handguards, the court in In re Conrad V. relied on two Supreme Court opinions, People v. Bain (1971) 5 Cal.3d 839 [97 Cal.Rptr. 684] and People v. Forrest (1967) 67 Cal.2d 478 [62 Cal.Rptr. 766]. In those cases, however, the Supreme Court was concerned with whether a folding knife could be a dagger and did not address directly whether dirks and daggers must have handguards.

In People v. Forrest, supra, 67 Cal.2d 478, the court found that the folding knife in question was not a dirk or dagger as a matter of law. (Id. at p. 481.) The court noted the fact that the knife was large with a beveled blade and its handle contained handguards was not determinative where the absence of a lock on the blade so greatly limited its effectiveness as a stabbing instrument. (Ibid.) The absence of a lock presented a grave danger that the blade would close upon the hand of the wielder. (Ibid.) The court stated that "when a knife which ... has many possible uses, some of which are clearly innocent and utilitarian, also has a characteristic which in many situations will substantially limit the effectiveness of its use as a stabbing instrument, it cannot be held to be a weapon primarily designed for stabbing, and thus is not a dagger or dirk." (Ibid.)

In People v. Bain, supra, 5 Cal.3d 839, the Supreme Court concluded that it was a question of fact for the jury to determine whether a folding knife with a blade that locks in place and a handle with a handguard was a dirk or dagger. (Id. at pp. 851-852.) Although both Forrest and Bain mention that the knives in question had handguards, neither case held that the presence of handguards was a prerequisite to finding that a knife is a dirk or dagger, but

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rather that the existence of a handguard is evidence that the knife was designed for stabbing.

No clear guidance concerning the necessity of handguards has...

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