Bills v. Superior Court

• Decision Date: 30 November 1978
• Citation: 86 Cal.App.3d 855,150 Cal.Rptr. 582
• Court: California Court of Appeals Court of Appeals
• Parties: Ray Anthony BILLS, Petitioner, v. The SUPERIOR COURT of the State of California IN AND FOR the COUNTY OF SOLANO, Respondent. PEOPLE of the State of California, Real Party in Interest. Civ. 43946.

Page 582

150 Cal.Rptr. 582

86 Cal.App.3d 855

Ray Anthony BILLS, Petitioner, v. The SUPERIOR COURT of the State of California IN AND FOR the COUNTY OF SOLANO, Respondent.

PEOPLE of the State of California, Real Party in Interest.

Civ. 43946.

Court of Appeal, First District, Division 3, California.

Nov. 30, 1978.

Isenberg, Moulds, Samuel & Rodda, Rosemary Metrailer, Sacramento, for petitioner.

Eric R. Uldall, Deputy Dist. Atty., Fairfield, for respondent.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Gloria F. DeHart, Laurence K. Sullivan, Deputy Attys. Gen., San Francisco, for real party in interest.

WHITE, Presiding Justice.

Petitioner, Ray Anthony Bills, was arrested in the City of Fairfield on January 20, 1978 sometime after midnight. After his preliminary examination, petitioner was held to answer the information accusing him of a "Violation of Section 12020 of the Penal Code of California" in that he "did willfully, unlawfully and feloniously possess an instrument or weapon of the kind commonly known as a pair of scissors." Petitioner's motion to set aside the information (Pen. Code, § 995) was denied. We stayed petitioner's imminent jury trial and issued an alternative writ of prohibition to address the question of whether a pair of scissors constitutes a dirk or dagger or any other instrumentality within the purview of Penal Code section 12020. We have decided that an unaltered pair of barber scissors is not a "dirk or dagger" because it is not a weapon fitted primarily for stabbing. Accordingly, we issue the peremptory writ of prohibition.

Shortly after midnight on January 20, 1978, Officers Colonbomi and Fernandez of the California Highway Patrol were transporting a prisoner. As was their custom, they traveled Highway No. 80. Petitioner, a 20-year old black pre-medical student, was en route from the University of California at Davis to his family's home in Vallejo. Officer Colonbomi drove off the freeway into Fairfield to get gas for the car he was driving. As he left the freeway, Colonbomi observed petitioner standing on the left side of the road. As the police car returned on Travis Boulevard to the freeway, petitioner was again observed by Colonbomi. Approximately two or three minutes later, after the police car had returned to the freeway, Colonbomi heard a police communication transmitted from the Fairfield Police Department that four black males had "skipped out" on a cab fare in the City of Fairfield. At the preliminary hearing, Officer Colonbomi testified that the communication gave a description of the suspects as four individuals, all black males, one with a pullover watch cap and some type of backpack. However, at the special hearing of petitioner's Penal Code 1538.5 motion, a radio card was introduced that was a record of the description sent to Officer Colonbomi at his request after petitioner was stopped. This description reads two to three subjects, with notations indicating a description of "Age 18, race black, sex male, height 5'10 , weight 160, place of birth, green jacket." There is no notation on the card regarding a watch cap or backpack.

Officer Colonbomi testified at the preliminary hearing that the Fairfield Police Department broadcast related that the petty theft took place off Travis Boulevard approximately 10 to 15 minutes prior to his observing defendant. There is some indication in the record that the petty theft occurred approximately three miles from where Officer Colonbomi first observed petitioner.

Upon hearing the communication, Colonbomi radioed to see if any other officers were closer to the location; when the call was not answered, Colonbomi and Fernandez turned around and returned to stop petitioner. Contact with petitioner was made near the Travis Boulevard exit from the freeway.

Colonbomi stopped petitioner and asked him for identification. Petitioner produced a driver's license. As this was taking place, California Highway Patrol Officers Nolan and Felter arrived. Officer Colonbomi turned the investigation over to Felter who ran a radio check on petitioner with the identification. As Colonbomi was standing near petitioner, he observed some metallic object in petitioner's right glove. The observation of the metallic object was made approximately within one minute after Colonbomi first observed petitioner. Colonbomi asked petitioner to take his gloves off. As soon as the gloves came off, Colonbomi recognized the metallic object to be a pair of scissors.

Shortly after that, the warrant check indicated that there was an outstanding warrant from Oakland on petitioner, with $85 bail for violation of Vehicle Code sections 4454, registration card in vehicle, 5204, registration tab for car license, and 12815, license lost or destroyed. The warrant indicated "Day serve only." Petitioner was then arrested.

We are in agreement with the parties herein that subdivision (a) is the only relevant provision. Penal Code section 12020, subdivision (a) reads in pertinent part: "Any person in this state . . . who carries concealed upon his person any dirk or dagger, is guilty of a felony, and upon conviction shall be punishable by imprisonment in the county jail not exceeding one year or in a state prison . . . ."

The code does not define "dirk or dagger." In six appellate decisions we find this quote: "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 '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 the dirk, stiletto, poniard, etc. Standard Dict." (People v. Ruiz (1928) 88 Cal.App. 502, 504, 263 P. 836; People v. Bain (1971) 5 Cal.3d 839, 851, 97 Cal.Rptr. 684, 489 P.2d 564; People v. Forrest (1967) 67 Cal.2d 478, 480, 62 Cal.Rptr. 766, 432 P.2d 374; People v. Cabral (1975) 51 Cal.App.3d 707, 712, 124 Cal.Rptr. 418; People v. Ferguson (1970) 7 Cal.App.3d 13, 18, 86 Cal.Rptr. 383; People v. Shah (1949) 91 Cal.App.2d 716, 720, 205 P.2d 1081.)

The weapon in Ruiz was a filed down bayonet enclosed in a metal sheath resembling a dagger in every detail except that a dagger is more pointed and not so heavy. In Shah, a seven-inch long switch blade pocketknife with the blade locked in place until released by a button, was held to be a dirk or dagger. Forrest involved an oversized two-bladed pocket knife with pointed tips. Because it was not primarily designed for stabbing in that the blades did not lock in place, Peters, J., held the knife was not a dirk or dagger as a matter of law. In Ferguson, the defendant was carrying an ordinary wooden handled kitchen knife with an eight-inch long steel blade with a point and one cutting edge. The court reasoned that because the butcher knife had the characteristics of a stabbing and cutting weapon, a jury properly determined that the defendant was armed with a dirk or dagger at the time of a burglary. In Bain, Peters, J., reasoned that a jury question was presented by a folding knife with a blade pocketed in the open position. The pointed five-inch long blade had dull beveled sides, the blade locked into place when manually opened, preventing the hand from slipping onto the blade when used as a stabbing weapon. It was held to be a close question of fact whether the knife was a "dirk or dagger." Finally, in Cabral, it was held as a matter of law that a jail hand made an eight and one-half inch long piece of rigid wire with a sharpened point, a three and one-fourth inch handle fashioned from shoestrings was a "dirk or dagger." It resembled a homemade ice pick made from a bedspring.

In the instant case we are concerned not with a knife but a pair of unaltered barber scissors. In his testimony at petitioner's preliminary hearing the detecting officer described them as "long shaped type closed scissors, the barber type with the hook on the end where you can get a little leverage."

The Attorney General accurately argues that the Ferguson court reaffirms the principle derived from the Ruiz and Shah cases that the test of a "dirk or dagger" is its capability for use as a stabbing weapon. We have certainly had no difficulty in recognizing that a pair of barber scissors is capable of being used as a stabbing weapon and as such could inflict a fatal wound. However, it does not appear to us that a pair of barber scissors as constructed has the characteristics of a stabbing weapon. In People v. Forrest, supra, 67 Cal.2d 478, 481, 62 Cal.Rptr. 766, 432 P.2d 374, the Supreme Court held that the absence of a lock on a folding blade was a characteristic which would substantially limit its effective use as a stabbing instrument. The court reasoned that because it could not hold that an oversized folding...