People v. Aubrey, A081058

Citation83 Cal.Rptr.2d 209,70 Cal.App.4th 1088
Decision Date22 March 1999
Docket NumberNo. A081058,A081058
CourtCalifornia Court of Appeals
Parties, 99 Cal. Daily Op. Serv. 2089, 1999 Daily Journal D.A.R. 2656 The PEOPLE, Plaintiff and Respondent, v. Henry Calvin AUBREY III, Defendant and Appellant.

Gerald William McGee, under appointment by the Court of Appeal, Eureka, for appellant.

Daniel E. Lungren, Attorney General; George Williamson, Chief Assistant Attorney General; Ronald A. Bass, Senior Assistant Attorney General; Catherine A. Rivlin, Supervising Deputy Attorney General; Kenneth C. Young, Deputy Attorney General, for respondent.

SEPULVEDA, J.

Appellant Henry Calvin Aubrey III was charged with one felony count of carrying a concealed "dirk or dagger." (Pen.Code § 12020, subds. (a), (c)(24)). 1 The information also alleged that, under California's "Three Strikes" law (§ 667, subds. (b)-(i)), appellant had one " strike" prior felony conviction. 2 In a bifurcated trial, the jury found appellant guilty as charged and found true the allegations about the prior " strike." Appellant filed a motion for a new trial on the ground that defense counsel was ineffective for conceding that the objects in appellant's possession met the statutory definition of "dirk or dagger." After an evidentiary hearing was held with new counsel for appellant, the motion was denied. The trial court sentenced appellant to state prison for the midterm of two years (§ 18), doubled pursuant to sections 667, subdivision (d), and 1170. 12, subdivisions (b) and (c), for a total term of four years.

On appeal, Aubrey contends that his trial counsel was ineffective, that the instructions were erroneous, and that presentence conduct credits should have been awarded. We affirm, but remand for calculation of presentence credits.

I. FACTUAL AND PROCEDURAL BACKGROUND
A. Trial Evidence.

On March 18, 1997, Ben Guidotti worked the night shift at Flying J, Inc., a gas station and convenience store. At approximately 2 a.m., appellant entered the store and asked Guidotti to call the police to arrest appellant. At first Guidotti declined, but he made the call when appellant attempted to steal a package of cigarettes. During the 30 to 45 minutes between the call and the arrival of the police, Guidotti observed appellant from all angles. At no time did Guidotti see a knife. Appellant appeared to be intoxicated, but not "stumbling drunk." Guidotti noticed that James R. Bingham, a customer, had fallen to the floor of the store, and it appeared to Guidotti that appellant had caused the fall.

Police Sergeant James D. Manos was dispatched to the Flying J at approximately 2:05 a.m. on March 18, 1997, on the basis of a disturbing the peace call. No mention was made of a knife or other weapon. Throughout the evening, the police had received calls stating that appellant was acting aggressively and was in several fights.

Upon reaching a well illuminated parking lot, Manos observed appellant confronting Bingham. Appellant's hands were in a "fighting stance" and he was intoxicated, but "not falling down drunk." No knife or other weapon was visible. Manos ordered appellant to "knock it off" and "calm down." Initially, appellant acted aggressively toward the officer. Eventually, he reluctantly complied with the orders and was handcuffed without physical resistance.

As Manos started putting the handcuffs on appellant, Bingham said, " 'Watch out. He's got some knives on him.' " After completing the handcuffing process, Manos lifted up appellant's sweatshirt and removed two knives from his person. The knives were in a single sheath which was attached to appellant's belt and placed inside appellant's pocket. Appellant's sweatshirt covered the handles of the knives.

At trial, Manos described the knives as follows: "A little bit scratched, not too bad. They're not rusted, not real sharp on the edges like for skinning or anything. Appear to be more for a stabbing instrument or throwing." According to Manos, the knives could be legally purchased and used to practice knife throwing.

We have examined the knives and the sheath. The knives are flat, nine inches long, approximately one-inch wide, and approximately one-eighth of an inch thick. They are all metallic and well-balanced, with a "blade" that is symmetrically tapered to a point on one end. There is no separate "handle" as such, but the non-blade end of the knife has curved edges in which the thumb and index finger nest comfortably when the knife lies in the palm of the hand. The tapered "blade" is sharpened over a length of approximately three inches on both edges. Each knife has imprinted on one side a small emblem in the shape of a knife with the words "On Target" and a small target symbol within the outline of the emblem. The knives fit neatly into a nine-and-a-half-inch sheath, which has a two-and-a-half-inch slot through which a belt could easily pass. The sheath appears to have been designed with slots to hold three knives of the size and shape of those that were in evidence.

The centerpiece of the defense was that the knives were not "purposely concealed." Bingham testified for the defense that he saw the handle and the top part of the blade of a knife on appellant's person when Manos handcuffed appellant, and that the knife was either in a sheath or attached to appellant's belt. Also, defense counsel arranged for the jury to view appellant wearing the sweatshirt and moving his arms and body.

B. Closing Argument and Jury Instructions.

During closing argument, Deputy Public Defender James Steinberg laid out the defense theory of the case as follows: "There are two substantial issues which you need to deal with in this case: One is the issue of concealment, and the other is the issue of purpose or purposefulness. [p] Now, I think it would be difficult and unpersuasive to suggest that these ugly things couldn't stab somebody.... Of course, they're something that could stab somebody and inflict great bodily injury. I don't think that's what they were designed for. Sergeant Manos described them as throwing knives. I guess that's what people buy them for. I know that some of you are sensitive to the verbal nature of a--of a weapon of a type like that, which you don't really use it for hunting, you don't really use it for whittling, it's just for essentially a martial arts or something which could, in fact, be used aggressively. It has that potential. [p] Sure, I don't expect any of you are going to look at that and say 'Oh, that's just a little something or other.' But the fact of the matter is that the character of the weapon, once you get over the fact that it is technically a dirk or dagger, really doesn't make any difference.... [p] ... Okay. So what I am going to ask you to do is try not to be hung up on the fact that these aren't weapons that most people necessarily would ordinarily carry. The fact is they're legal. The fact is you can carry them. [p] What we're dealing with here is the law, so I do want you to remember these weapons are legal, and overcome any bad feelings or revulsion you might have about the fact that these aren't the kinds of weapons you might have in your house, or the kind of weapons that you or your relatives might employ. That is absolutely irrelevant. It is irrelevant, because as long as it can be used for stabbing, it's considered to be a dirk or dagger." Defense counsel continued, "No matter how reprehensible his behavior was that night, no matter how ugly these knives are, if he doesn't purposefully conceal them, if you have a reasonable doubt as to that, he, by law, is entitled to a verdict of not guilty."

At the request of defense counsel, the jury was instructed with CALJIC No. 4.45, 3 which describes the defense of "accident"; CALJIC No. 12.41, 4 which sets forth the elements of the offense of carrying a concealed dirk or dagger and provides the statutory definition of the latter terms; and a special instruction 5 stating that the prosecution has the burden of proof as to concealment and the other elements of the charged offense. Defense counsel did not request CALJIC No. 12.42, 6 regarding "intended use" as determinative of the character of the concealed instrument as a "weapon," or any comparable special instruction. On the issue of "criminal intent," the court apparently rejected the prosecutor's request for the definition of "specific intent" set forth in CALJIC No. 3.31, and instead gave CALJIC No. 3.30, which defines the concept of "general intent." 7

On June 3, 1997, appellant was found guilty of a violation of section 12020(a). After a further hearing on June 4, 1997, the jury found true the allegation that on or about May 18, 1987, appellant was convicted of a violation of section 245, subdivision (a)(1), assault with a deadly weapon, with great bodily injury.

C. Motion for New Trial.

On July 9, 1997, the court appointed conflict counsel Glenn Brown to investigate a possible motion for new trial. On October 8, 1997, conflict counsel filed a motion for new trial, claiming that trial counsel had failed to present a potentially meritorious defense and that appellant was thus denied effective assistance of counsel and a fair trial.

At a hearing on appellant's new trial motion on October 31, 1997, Steinberg testified as follows: He had served as a public defender for 20 years. After reviewing the applicable statute, statutory history, case law, knives and all the other evidence, he made a tactical decision that no reasonable jury would decide the knives were not dirks or daggers under the statute. The best defense was that they were not purposely concealed. Steinberg thought it would ruin the credibility of the defense to argue that the knives were not the type of stabbing weapons outlawed by the current statute. He believed that the defense was best served by minimizing the amount of time the knives were viewed by the...

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