People v. Wharton

• Citation: 5 Cal.App.4th 72,6 Cal.Rptr.2d 673
• Decision Date: 02 April 1992
• Docket Number: No. C009373,C009373
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Edward Milton WHARTON, III, Defendant and Appellant.

Page 673

6 Cal.Rptr.2d 673

5 Cal.App.4th 72

The PEOPLE, Plaintiff and Respondent, v. Edward Milton WHARTON, III, Defendant and Appellant.

No. C009373.

Court of Appeal, Third District, California.

April 2, 1992.

Certified For Partial Publication ^*

Review Denied June 17, 1992.

[5 Cal.App.4th 74] Peter Brixie, E. Katherine Dashiell, Mark E. Cutler, Executive Director, Cent. California Appellate Program, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Acting Senior Asst. Atty. Gen., Edmund D. McMurray, Supervising Deputy Atty. Gen., Jane L. Lamborn and Leslie B. Fleming, Deputy Attys. Gen. for plaintiff and respondent.

MARLER, Associate Justice.

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 60 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 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 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 pat-down 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.

                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
                

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, 134 Cal.Rptr. 885.)

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 was protruding from defendant's pocket. These facts support a finding of substantial concealment.

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, 222 Cal.Rptr. 552; 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, 489 P.2d 564 and People v. Forrest (1967) 67 Cal.2d 478, 62 Cal.Rptr. 766, 432 P.2d 374. 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, 62 Cal.Rptr. 766, 432 P.2d 374, the court found that the folding knife in question was not a dirk or dagger as a matter of law. (Id. at p. 481, 62 Cal.Rptr. 766, 432 P.2d 374.) 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 In People v. Bain, supra, 5 Cal.3d 839, 97 Cal.Rptr. 684, 489 P.2d 564, 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, 97 Cal.Rptr. 684, 489 P.2d 564.) 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 rather that the existence of a handguard is evidence that the knife was designed for stabbing.

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.)

No clear guidance concerning the necessity of handguards has been forthcoming from the Legislature which has never defined the terms "dirk" or "dagger." The legislative history of section 12020 is of little assistance. Section 12020, subdivision (a), which makes it a crime to carry any dirk or dagger concealed upon the person was originally enacted in 1953. (See Stats.1953, ch. 36, p. 653.) The provisions of this section stem from an early statute which made the mere carrying or possession of a dirk or dagger a misdemeanor, unless the person had been convicted previously of any felony or of carrying a deadly weapon, in which case the person was guilty of a felony. (Stats.1917, ch. 145, § 2, p. 221.) ¹ The Legislature simultaneously provided: "Any person who attempts to use or who with intent to use the same unlawfully against another, carries or possesses a dagger, dirk, dangerous knife, ... or any other dangerous or deadly weapon, is guilty of a felony...." (Stats.1917, ch. 145, § 5, p. 222.) A comparison of these two statutory enactments indicates that not all dangerous knives are considered to be dirks or daggers. ²

While it is clear that not all knives are dirks or daggers (People v. Bain, supra, 5 Cal.3d at p. 850, 97 Cal.Rptr. 684, 489 P.2d 564; People v. Forrest, supra, 67 Cal.2d at p. 481, 62 Cal.Rptr. 766, 432 P.2d 374) much confusion has been engendered by the Legislature's failure to define its terms. ³ "A dagger has been defined as any straight knife to be worn on the person which is capable of inflicting death except what is commonly known as a single 'pocket-knife.' Dirk and dagger are used synonymously and consist of any straight stabbing weapon, as a dirk, stiletto, etc. (Century Dict.) They may consist of any weapon fitted primarily for stabbing. The word dagger is a generic term covering dirk, stiletto, poniard, etc. (Standard Dict.)" (People v. Ruiz (1928) 88 Cal.App. 502, 504, 263 P. 836; accord People v. Forrest, supra, 67 Cal.2d at p. 480, 62 Cal.Rptr. 766, 432 P.2d 374.)

"In pure usage the dagger, always a weapon, should have a symmetrical tapering blade with two, three, or even four The question in the instant case is whether a knife must have a handguard as a prerequisite to classification as a dirk or dagger. The guard, if a knife has one, is located between the blade and the hilt or handle. (Peterson, American Knives, op. cit. supra, pp. 1, 5.) "If the guard consist of a crossbar, the two arms are called the quillons; and if there is a branch joining the guard and pommel to offer full protection for the hand, it is known as a knuckle-bow." (Id. at p. 5.) One of the functions of the quillons is to prevent the hand from slipping forward over the blade during a thrust. (Id. at p. 10.) According to Peterson, almost all daggers and fighting knives (a term which includes dirks) have guards to protect the hand. (Id. at p. 5; Peterson, Daggers and Fighting Knives of the Western World: From the Stone Age Till 1900 (1968) p. 59.)

edges and a sharp point. It is primarily designed for thrusting or stabbing. The knife, sometimes a weapon, sometimes a tool, should have a single edge for each blade, though the back can be sharpened for a short distance near the point. It is designed primarily for...