George W., In re, B120937
| Court | California Court of Appeals |
| Citation | 80 Cal.Rptr.2d 868,68 Cal.App.4th 1208 |
| Decision Date | 30 December 1998 |
| Docket Number | No. B120937,B120937 |
| Parties | , 99 Cal. Daily Op. Serv. 46, 98 Daily Journal D.A.R. 11 In re GEORGE W., a Person Coming Under the Juvenile Court Law. The PEOPLE, Plaintiff and Respondent, v. GEORGE W., Defendant and Appellant. |
Page 868
The PEOPLE, Plaintiff and Respondent,
v.
GEORGE W., Defendant and Appellant.
[68 Cal.App.4th 1209] Lisa M. Bassis, under appointment by the Court of Appeal, Los Angeles, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and M. Susan Sullivan, Deputy Attorney General, for Plaintiff and Respondent.
JOHNSON, J.
This case arises from a probation search of appellant's, George W., home conducted by Pasadena police officers as a routine sweep of gang related probationers. He appeals from a juvenile court order of wardship (Welf. & Inst.Code, § 602) based on a finding he carried a concealed dirk or dagger on his person in violation of Penal Code section
Page 869
12020, subdivision (a). 1 The juvenile court ordered camp community placement subject to previously imposed terms and conditions of probation.Appellant contends the probation search was arbitrary and constituted a form of harassment. Therefore he argues the court erred in failing to grant his motion to suppress evidence of a folding knife and other contraband recovered during the search. In the alternative, he argues the evidence was [68 Cal.App.4th 1210] insufficient to establish the knife recovered in the search was a " dirk or dagger" within the meaning of section 12020, subdivision (c)(24). Finally, appellant claims the juvenile court abused its discretion in ordering camp community placement rather than continuing him on probation.
We need not address each of appellant's contentions because we conclude the record evidence does not establish the knife at issue in this case fell within the statutory definition of "dirk or dagger." Accordingly, we reverse.
On a quarterly basis the probation department furnished the Pasadena Police Department with a list of gang affiliated probationers who had search conditions. Police officers who specialized in gang related matters would conduct searches of the probationers' homes in a coordinated effort covering a few days.
In this instance the probation department supplied a list of 40 gang affiliated probationers. Appellant's name was on the list. He had been placed on probation on April 8, 1997, after he was adjudged a ward of the court for carrying a concealed firearm. As part of his probation the court had imposed a search and seizure condition. This search condition permitted a search by any law enforcement officer, at any time, with or without a warrant.
On January 14, 1998, at approximately 7:30 p.m. Pasadena Police Officer Edward Armstrong and three other uniformed officers went to appellant's house to conduct a probation search. The officers knocked on the door and announced their intention to conduct a probation search. Appellant's younger sibling answered the door and let the officers into the house. Appellant was asleep on the couch in the living room. Officer Armstrong did a pat-down search of appellant and found a folding knife in his right front pants pocket. The officer asked to search appellant's bedroom. According to Officer Armstrong, appellant directed them to a bedroom in which the officers discovered a pair of brass knuckles, a bullet and a partially smoked marijuana cigarette.
Appellant testified at the suppression hearing. He denied the contraband items found in the bedroom were his. He claimed he usually slept in the living room. Appellant explained the bedroom was used by his younger brothers and sister, as well as by his father when his father visited. The trial court denied appellant's motion to suppress the evidence found in the probation search.
The officer described the folding knife found in appellant's pants pocket at the adjudication portion of the hearing. It was a black "Gerber" knife. It [68 Cal.App.4th 1211] had a steel blade with a single honed edge. The blade was three and a half to four inches long. The blade locked into place when opened. To fold the knife closed one had to push a release lever to permit the blade to retract into the handle.
Defense counsel argued appellant's intended use of the knife was relevant to the determination whether it met the definition of "dirk or dagger." In response, the court questioned what possible use the knife might have if not "to threaten or stab someone?" Through an offer of proof defense counsel explained appellant used the knife in his work at the Pasadena Civic Auditorium to open boxes and cut plastic bands which secured groups of chairs.
The court examined the knife and expressed the opinion the knife was "a deadly-looking knife just on its appearance to the average lay person." The court concluded the knife was intended to stab someone, was a "dirk or dagger" within the meaning of the
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law, and sustained the count of the petition alleging appellant carried a concealed "dirk or dagger" on his person. The court dismissed the other counts of the petition relating to the other contraband found in the bedroom of appellant's home.The court continued appellant as a ward of the court and committed him to camp community placement for a maximum period of five years and four months.
THE RECORD CONTAINS INADEQUATE EVIDENCE TO SUPPORT A FINDING THE KNIFE APPELLANT CARRIED CONCEALED ON HIS PERSON FIT WITHIN THE APPLICABLE STATUTORY DEFINITION OF "DIRK OR DAGGER."
Section 12020, subdivision (a) makes...
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