In re Luke W.

• Decision Date: 23 April 2001
• Docket Number: No. A090906.,A090906.
• Court: California Court of Appeals Court of Appeals
• Parties: In re LUKE W., a Person Coming Under the Juvenile Court Law. The People, Plaintiff and Respondent, v. Luke W., Defendant and Appellant.

105 Cal.Rptr.2d 905

88 Cal.App.4th 650

In re LUKE W., a Person Coming Under the Juvenile Court Law.

The People, Plaintiff and Respondent, v. Luke W., Defendant and Appellant.

No. A090906.

Court of Appeal, First District, Division 5.

April 23, 2001.

Joseph Shipp, under appointment by the Court of Appeal, Sebastapol, for defendant and appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Catherine A. Rivlin, Supervising Deputy Attorney General, Michael E. Banister, Deputy Attorney General, for plaintiff and respondent.

JONES, P.J.

Luke W. appeals from an order sustaining a supplemental petition (Welf. & Inst. Code, § 602) that alleged he possessed a concealed dirk or dagger. (Pen.Code, § 12020, subd. (a).) He contends the knife found in his possession is not a statutorily prohibited dirk or dagger.

BACKGROUND

Appellant was declared a ward of the juvenile court and placed on probation under home supervision after the court sustained a petition alleging he possessed marijuana for sale and possessed psilocybin.

Four months later Lafayette Police Officer Dan Hoffman saw appellant walking in the company of a man Hoffman knew to be on parole. Hoffman knew appellant and knew he was on probation and subject to a search condition. He stopped appellant and asked if he possessed any illegal substances or weapons. Appellant replied he did not. Hoffman searched appellant and found a small, rectangular object in appellant's pocket.¹ It resembled a thick credit card and contained knobs and grips. When Hoffman pulled on one of the grips, a knife "came out."

Hoffman asked appellant why he was carrying the object. Appellant replied, "Well, you never know what can happen; it's for my protection."

Appellant disputed telling Hoffman he carried the object for protection. According to appellant's testimony, Hoffman initiated the subject by asking him, "Are you using that for protection?" Appellant replied, "Well, yes, I guess you could use it for protection."

DISCUSSION

Appellant contends the device seized by Officer Hoffman was not a statutorily proscribed "dirk or dagger."

The supplemental petition alleged that appellant violated Penal Code section 12020, subdivision (a),² which forbids, inter alia, carrying "any dirk or dagger" concealed on one's person. (§ 12020, subd. (a)(4).)

The definition of "dirk or dagger" as used in section 12020 has been the subject of frequent legislative attention in the last decade. (See People v Rubalcava (2000) 23 Cal.4th 322, 328-332, 96 Cal. Rptr.2d 735, 1 P.3d 52; In re George W. (1998) 68 Cal.App.4th 1208, 1212-1214, 80 Cal.Rptr.2d 868 (George W.)) In 1993 section 12020 was amended to define "dirk or dagger" as "a knife or other instrument with or without a handguard that is primarily designed, constructed, or altered to be a stabbing instrument designed to inflict great bodily injury or death." (Stats. 1993, ch. 357, § 1.)

In 1995 "dirk or dagger" was redefined as "a knife or other instrument with or without a handguard that is capable of ready use as a stabbing weapon that may inflict great bodily injury or death." (Stats.1995, ch. 128, § 2.)

In 1996 Assemblymember Diane Martinez, the author of the 1995 legislation, published a letter in the Assembly Journal expressing concern that the broad definition of dirk or dagger in the 1995 statute had the unanticipated result of including folding knives and pocketknives. (George W., supra, 68 Cal.App.4th at p. 1213, 80 Cal.Rptr.2d 868.) She wrote that the California District Attorneys Association, which sponsored the 1995 legislation, "sought to eliminate the `primarily designed' language [of the 1993 statute] which had given rise to prosecutorial problems and to substitute language aimed at preventing surprise knife attacks by prohibiting the carrying of concealed knives that are particularly suited for stabbing and that are readily accessible to the user.

"According to a police training video prepared by the [district attorney] who drafted the `capable of ready use' language [in the 1995 statute], folding knives are not 'dirk or daggers,' unless they are carried in an open and locked position. This is due to the fact that, when folded, they are not `capable of ready use' without a number of intervening machinations that give the intended victim time to anticipate and/or prevent an attack.

"Thus, the definition of `dirk or dagger' [in the 1995 statute sponsored by Assembly member Martinez] was not intended to prohibit folding knives. I believe this is consistent with the intent of the Legislature." (George W., supra, 68 Cal.App.4th at p. 1213, 80 Cal.Rptr.2d 868, internal quotation marks omitted.)

In 1997 an amendment to section 12020 was introduced to enact the definition intended in the 1995 statute and to alleviate concerns of hunting knife manufacturers and sportsmen. The purpose of the amendment was "to expressly exclude from the definition of `dirk or dagger' folding knives and pocket knives, which are not switchblades, and which are carried in a closed, secured state. Under the proposed amendment folding knives and pocket knives could only fit the definition of `dirk or dagger,' that is, of `being capable of ready use as a stabbing weapon that may inflict great bodily injury or death,' if `the blade of the knife is exposed and locked into position.'" (George W., supra, 68 Cal.App.4th at p. 1213, 80 Cal.Rptr.2d 868.) A report to the Assembly Committee on Public Safety explained that the proposed amendment was an attempt to codify Assembly member Martinez's 1996 letter. (George W., supra, at p. 1214, 80 Cal.Rptr.2d 868.)

Under the 1997 amendment, which controls the present case, "dirk or dagger" is defined as "a knife or other instrument with or without a handguard that is capable of ready use as a stabbing weapon that may inflict great bodily injury or death. A nonlocking folding knife, a folding knife that is not prohibited by Section 653k [i.e, a switchblade], or a pocketknife is capable of ready use as a stabbing weapon that may inflict great bodily injury or death only if the blade of the knife is exposed and locked into position." (Stats. 1997, ch. 158, § 1.)

At the parties' request we have examined the object seized by Officer Hoffman. It is three and three-eighths inches wide, two and one-eighth inches high, and one-eighth inch thick. At first glance it closely resembles an audio cassette tape. The upper left corner of the front side bears the word "VISA," underlined with an abstract curved line. The diagonally opposed lower corner of the front side contains the numbers "007" immediately followed by the silhouette of a handgun. Superimposed thereon is the phrase "Tomorrow Never Dies."

Embossed in black along the top of the back side is a three inch ruler and embossed along the bottom of the back side is a five and one-half centimeter ruler.

Viewed from the front side, the object contains a compass and round magnifying glass in the upper right. They do not protrude from the surface of the object. On the middle of the left end are two knobs, approximately one-eighth inch square, which also fit flush with the object. If one knob is pulled, one inch long plastic tweezers emerge from the object. A one inch long plastic toothpick emerges by pulling on the other knob.

Again viewed from the front, there is a one-fourth inch ridged circle generally in the center of the object, one-fourth inch from the top. There is a like corresponding circle on the back side. By placing one's thumb on the front circle and forefinger on the back circle and pulling, a shiny silver metal hooked can/bottle opener emerges; it is not attached to the case. The can opener contains a small squared extension that may be used as a screwdriver. The can opener clicks into place when it is fully retracted into its slot. Midway down the right side of the object, approximately one-half inch from the outer edge, is another one-fourth inch ridged circle, also with a corresponding circle on the back side. By placing the thumb and forefinger of one hand on these circles and pulling, while holding the left end of the object with the other hand, a knife emerges. Like the can opener, it is a separate, unattached item. The total length of the knife is approximately three and one-eighth inches: two and one-fourth inches of blade, which is approximately one inch wide at its widest, and three-fourths inch of plastic butt. The upper and lower sides of the blade are curved and taper to a sharp point. The bottom side of the blade is partially serrated. The knife also clicks into place when it is fully retracted into its slot.

Given its size and variety of tools, this object is similar in function, albeit not in appearance, to the familiar Swiss Army pocketknife.

Appellant contends the object fits the definition of knives excluded from the statutory definition of "dirk or dagger" because it is a pocketknife whose blade is carried in a retracted, unexposed state. The People rebut that it is not a pocketknife because it does not have a blade that folds into an attached handle, the common definition of "pocketknife." (Webster's New Collegiate Diet. (1981) p. 879.)

The primary duty of a court when interpreting a statute is to give effect to the intent of the Legislature, so as to effectuate the purpose of the law. (People v. Woodhead (1987) 43 Cal.3d 1002, 1007-1008, 239 Cal.Rptr. 656, 741 P.2d 154 (Woodhead).)...