People v. Barrios
Decision Date | 17 June 1992 |
Docket Number | No. F016418,F016418 |
Citation | 8 Cal.Rptr.2d 666,7 Cal.App.4th 501 |
Court | California Court of Appeals Court of Appeals |
Parties | The PEOPLE, Plaintiff and Respondent, v. Jesus Govea BARRIOS, Defendant and Appellant. |
Defendant appeals from a judgment entered on a jury verdict convicting him of possession of a concealed dirk or dagger (Pen.Code, § 12020, subd. (a)). He contends: 1) the knife he possessed is not a dirk or dagger as a matter of law, and 2) the court incorrectly instructed the jury regarding the definition of "dirk or dagger".
On April 22, 1991, Bakersfield city police officers received a report of an intoxicated person who possibly possessed a large knife. Police detained defendant as one matching the reported description. The officers searched defendant. They found a kitchen knife concealed from view inside the waistband of his pants. When asked about the knife, defendant said he carried it for protection and that there were people "after him." He also said if anybody tried to touch him, "I'll kill them." Defendant described himself as "good with a knife."
Prior to trial, defendant moved to exclude the knife from evidence on the basis the knife was not a "dirk or dagger" as a matter of law. Relying on People v. Ferguson (1970) 7 Cal.App.3d 13, 86 Cal.Rptr. 383, and In re Quintus W. (1981) 120 Cal.App.3d 640, 175 Cal.Rptr. 30, the court denied the motion. At trial, the jury viewed a knife 1 with a fixed blade of eight or nine inches and a wooden handle of about four inches. The blade was serrated on one edge and blunt on the other. The tip was rounded coming to a point on the serrated edge. The knife did not have a handguard.
Defendant contends the court erred by determining that whether this particular knife is a "dirk or dagger" was a question of fact for the jury. Penal Code section 12020, subdivision (a) provides, in relevant part, as follows: "Any person in this state who ... possesses ... any instrument or weapon of the kind commonly known as a blackjack, slungshot, billy, sandclub, sap, or sandbag, or who carries concealed upon his or her person any explosive substance, other than fixed ammunition or who carries concealed upon his or her person any dirk or dagger, is guilty of a felony, ...."
First, we discuss three California Supreme Court cases which we are bound to apply. In People v. Forrest (1967) 67 Cal.2d 478, 62 Cal.Rptr. 766, 432 P.2d 374, the court considered whether a folding pocket knife was a "dirk or dagger" as a matter of law. The court applied the following definition from People v. Ruiz (1928) 88 Cal.App. 502, 504, 263 P. 836: (Emphasis added.)
The court noted, construing section 12020, subdivision (a) with other sections of the Penal Code, it was clear the Legislature did not intend "dirk or dagger" to include all knives. Accordingly, the court refined the test to be applied. When a knife has many possible uses, some of which are clearly innocent and utilitarian, and also has a characteristic that substantially limits its effectiveness as a stabbing instrument, it cannot be held to be a weapon primarily designed for stabbing and is not a dirk or dagger. (People v. Forrest, supra, 67 Cal.2d at p. 481, 62 Cal.Rptr. 766, 432 P.2d 374.) The court held that a knife with a folding, unfixed blade was substantially limited as a stabbing instrument and was not, as a matter of law, a dirk or dagger within the meaning of the statute. (Id.)
In People v. Bain (1971) 5 Cal.3d 839, 97 Cal.Rptr. 684, 489 P.2d 564, the court applied the Ruiz definition and the Forrest guidelines. There, the knife had a folding blade that locked into place and had handguards to prevent the hand from slipping onto the blade if used as a stabbing weapon. Reversing a jury verdict due to prosecutorial misconduct, the court held that it was ordinarily a question of fact for the jury whether such a knife, with no impediments to its effectiveness as a stabbing instrument, was a dirk or dagger. (People v. Bain, supra, 5 Cal.3d at p. 851, 97 Cal.Rptr. 684, 489 P.2d 564.) In addition, the court stated the terms "dirk or dagger" are to be strictly construed. (Id. at p. 850, 97 Cal.Rptr. 684, 489 P.2d 564.)
In People v. Grubb (1965) 63 Cal.2d 614, 47 Cal.Rptr. 772, 408 P.2d 100, the court applied a clause of Penal Code section 12020, subdivision (a) which outlaws possession "of any instrument or weapon of the kind commonly known as a blackjack, slungshot, billy, sandclub, sap, or sandbag...." The court considered whether a common baseball bat which had been altered into a smaller billy club violated the statute:
Although the court reversed a guilty verdict due to Dorado error (People v. Dorado (1965) 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361), it held possession of the altered baseball bat violated the statute.
Since Grubb, Forrest, and Bain, no California Supreme Court case has applied Penal Code section 12020, subdivision (a). Court of Appeal cases have split over the applicability of the Grubb language to concealed dirks or daggers. In People v. Ferguson, supra, 7 Cal.App.3d 13, 86 Cal.Rptr. 383 ( ), In re Robert L. (1980) 112 Cal.App.3d 401, 169 Cal.Rptr. 354 (common ice pick) and In re Quintus W., supra, 120 Cal.App.3d 640, 175 Cal.Rptr. 30, (steak knife with a blade four and five-eights inches long), the Second District held it was proper to allow the jury to consider the surrounding circumstances and the subjective intent of a knife's possessor when determining whether the concealed instrument was a dirk or dagger. In Bills v. Superior Court (1978) 86 Cal.App.3d 855, 150 Cal.Rptr. 582 (unaltered barber scissors), and People v. La Grande (1979) 98 Cal.App.3d 871, 159 Cal.Rptr. 709, (leather or wood awl seven and one-half inches long with a sharp point), the First District limited application of the Grubb language to clubbing weapons "of the kind commonly known as a blackjack, slungshot, billy...." (Pen.Code. § 12020, subd. (a).)
In re Quintus W. is typical of the Second District cases. There, the court focused on the defendant's statement that he carried a steak knife for personal protection. 2 Citing People v. Grubb, supra, 63 Cal.2d 614, 622, 47 Cal.Rptr. 772, 408 P.2d 100, the court concluded " " (In re Quintus W., supra, 120 Cal.App.3d at p. 645, 175 Cal.Rptr. 30.)
In contrast, the First District, in Bills v. Superior Court, held that the Grubb approach does not apply to dirk or dagger cases. The court noted that Grubb applied a clause from Penal Code section 12020, subdivision (a) dealing with a class of weapons separate from dirks or daggers. (Bills v. Superior Court, supra, 86 Cal.App.3d at p. 861, 150 Cal.Rptr. 582.) Unlike the very specific reference to concealed "dirks or daggers" this clause outlaws any possession of a broad range of objects "of the kind commonly known as a blackjack," etc. (Pen.Code, § 12020, subd. (a).) These clubbing instruments may be...
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