People v. Mitchell
Decision Date | 11 October 2012 |
Docket Number | No. D059254.,D059254. |
Parties | The PEOPLE, Plaintiff and Respondent, v. Kenyatta Quinn MITCHELL, Defendant and Appellant. |
Court | California Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
See 2 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Crimes Against Public Peace and Welfare, § 213.
Jared G. Coleman, Salt Lake City, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, William M. Wood and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
Kenyatta Mitchell was found guilty of violating former Penal Code section 12020, subdivision (a)(4), which prohibits the carrying of a concealed dirk or dagger.1 On appeal, he asserts his conviction should be reversed because (1) the statute prohibiting concealed carrying of a dirk or dagger violates the constitutional right to bear arms for self-defense, and (2) the trial court erred in failing to instruct the jury on intent to conceal. We reject these contentions.
As to sentencing, Mitchell asserts the court's findings on prior prison term and strike allegations must be set aside because he was not properly advised of his rights prior to admitting these allegations. Additionally, Mitchell argues the trial court abused its discretion by imposing a $1,000 restitution fine. In the unpublished portion of this opinion, we find no reversible error in this regard.
At about 9:00 a.m. on September 28, 2010, trolley security officer Francisco Valenzuela removed Mitchell from the trolley because Mitchell did not have a ticket to ride the trolley. Mitchell sat down on a bench at the trolley station while Valenzuela contacted a code compliance officer to issue a citation. Another security officer (Alex Colon) stood behind Mitchell to provide cover. When Mitchell leaned forward on the bench, Colon noticed the silver tip of what appeared to be a knife sticking out of the bottom of Mitchell's sweatshirt. The knife was not visible before Mitchell leaned forward.
Colon signaled to Valenzuela to alert him about the knife, and in response Valenzuela asked Mitchell to stand up and put his hands behind his back. Mitchell complied, and Valenzuela handcuffed him. Valenzuela advised Mitchell that he would be conducting a pat-down search for weapons, and asked if Mitchell had anything that would “poke” him. Mitchell denied that he had anything of this nature. During the pat-down, Valenzuela felt or saw the tip of the knife, and when he raised Mitchell's sweatshirt he observed the remainder of the knife. The knife was in between Mitchell's belt and trousers. Its total length was about 11 inches, and it had a five-inch-long, fixed blade. Mitchell told the security officers that he carried the knife for self-defense. The police were summoned and Mitchell was arrested.
At trial, Mitchell elected to represent himself and testified on his own behalf. On direct examination, Mitchell stated that he was going fishing that day and he uses the knife as a fishing tool. He claimed he was not intentionally trying to hide the knife, and he forgot that he had it. He also testified that he tried to be compliant with the security officer because he did not want to inflame the situation and he “was trying to go about [his] business and hopefully get to work on time that day.”
On cross-examination, Mitchell testified that before he left for the trolley that morning he placed the knife between his belt and pants, and he was going to the harbor to fish with a friend who had fishing equipment. Although he was now claiming that he had the knife for fishing purposes, he acknowledged that he did not have a fishing pole with him when he was stopped and he told the security officer that he had the knife for self-defense.
The jury convicted Mitchell of carrying a concealed dirk or dagger. (§ 12020, subd. (a)(4).) After the jury's verdict, Mitchell admitted a prior prison term allegation and a prior strike allegation. The court sentenced him to five years in prison, consisting of four years for the concealed-carrying offense (double the two-year middle term pursuant to his strike prior) and one year for the prison prior.
For the first time on appeal, Mitchell asserts that the statute prohibiting the carrying of a concealed dirk or dagger is unconstitutional, both facially and as applied to him. He contends that the statute violates the right to bear arms in self-defense under the Second Amendment of the federal Constitution, as interpreted by the United States Supreme Court in District of Columbia v. Heller (2008) 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637( Heller ). Although a defendant's failure to present an issue to the trial court generally forfeits it on appeal, we exercise our discretion to consider the issue to the extent it presents a pure question of law or involves undisputed facts. (See In re Sheena K. (2007) 40 Cal.4th 875, 880–881, 887–888, fn. 7, 55 Cal.Rptr.3d 716, 153 P.3d 282;Charisma R. v. Kristina S. (2009) 175 Cal.App.4th 361, 384, 96 Cal.Rptr.3d 26, disapproved on other grounds in Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532, fn. 7, 113 Cal.Rptr.3d 327, 235 P.3d 988.)
To review Mitchell's constitutional challenge, we summarize the statute and the Heller decision, and then evaluate the constitutionality of the statute on its face and as applied to Mitchell.
Section 12020 states: The statute defines a dirk or dagger as: 2 ( § 12020, subd. (c)(24).) Further, the statute provides: “Knives carried in sheaths which are worn openly suspended from the waist of the wearer are not concealed within the meaning of this section.” ( § 12020, subd. (d).)
Thus, the statute generally proscribes the concealed carrying of a knife, but provides exceptions for (1) a knife placed in a sheath and visibly suspended from the waist, and (2) a nonswitchblade folding or pocketknife if the blade is not exposed and locked. (See In re Luke W. (2001) 88 Cal.App.4th 650, 653, 105 Cal.Rptr.2d 905;In re George W. (1998) 68 Cal.App.4th 1208, 1213–1215, 80 Cal.Rptr.2d 868.) The Legislature's purpose in enacting the statute was to combat the dangers arising from the concealment of weapons. (See In re Luke W., supra, 88 Cal.App.4th at p. 653, 105 Cal.Rptr.2d 905.) (94 C.J.S. (2001) Weapons, § 21, p. 594.)
In short, the prohibition against carrying a concealed dirk or dagger is designed to give third parties the opportunity to protect themselves from the risk of a surprise attack by a person carrying a weapon. (See In re Luke W., supra, 88 Cal.App.4th at p. 653, 105 Cal.Rptr.2d 905.) The openly-displayed sheathed knife exception does not detract from the statutory purpose because the bearer's possession of the knife is visible. Similarly, the folding or pocketknife exception is consistent with the statute's objective because folded knives 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.” ( Ibid.)
The statute does not require that the defendant intend to use the concealed dirk or dagger as a stabbing instrument. ( People v. Rubalcava (2000) 23 Cal.4th 322, 331, 96 Cal.Rptr.2d 735, 1 P.3d 52( Rubalcava ).) However, “the absence of a specific intent requirement does not make the carrying of a concealed dirk or dagger a strict liability offense.” ( Ibid.) Although a ( Id. at pp. 331–332, 96 Cal.Rptr.2d 735, 1 P.3d 52.)
In addition to incorporating a knowledge element, the California Supreme Court has generally recognized that when a defendant is charged with an offense that penalizes possession of an instrument that is ordinarily usable for peaceful purposes, the defendant may justify the possession by showing the...
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