People v. Mitchell

• Citation: 146 Cal.Rptr.3d 224
• Decision Date: 28 August 2012
• Docket Number: No. D059254.,D059254.
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Kenyatta Quinn MITCHELL, Defendant and Appellant.

146 Cal.Rptr.3d 224

The PEOPLE, Plaintiff and Respondent,
v.
Kenyatta Quinn MITCHELL, Defendant and Appellant.

No. D059254.

Court of Appeal, Fourth District, Division 1, California.

Aug. 28, 2012.

Background: Defendant was convicted in the Superior Court, San Diego County, No. SCD229968, Richard S. Whitney, J., of carrying a concealed dirk or dagger. Defendant appealed.

Holdings: The Court of Appeal, Haller, J., held that:

(1) statute was not facially unconstitutional;

(2) statute was not unconstitutional as applied;

(3) specific intent to conceal the knife from onlookers is not an element of the offense of carrying a concealed dirk or dagger;

(4) intentional, rather than inadvertent, commission of the act of concealment is an element of the offense of carrying a concealed dirk or dagger;

(5) record did not establish that defendant's waiver of rights before admitting prior conviction was knowing and voluntary;

(6) evidence did not support defendant's contention that he could not afford to pay $1,000 restitution fine; and

(7) evidence supported $1000 restitution fine.

Conviction affirmed; remanded for resentencing.

[146 Cal.Rptr.3d 228]Jared G. Coleman, 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.

HALLER, J.

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.

Mitchell also 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. We agree. Accordingly, we remand the case for redetermination on the priors and for resentencing.

Finally, Mitchell argues the trial court abused its discretion by imposing a $1,000 restitution fine. We find no abuse of discretion.

FACTUAL AND PROCEDURAL BACKGROUND

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 [146 Cal.Rptr.3d 229]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.

Jury Verdict and Sentence

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.

DISCUSSION I. Constitutionality of Statute Prohibiting Carrying of Concealed Dirk or Dagger

[1][2] 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;[146 Cal.Rptr.3d 230]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.

A. The Statute

Section 12020 states: “(a) Any person in this state who does any of the following is punishable by imprisonment in a county jail not exceeding one year or in the state prison: [¶] ... (4) Carries concealed upon his or her person any dirk or dagger.” The statute defines a dirk or dagger 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.” 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.) “The policy underlying the prohibition against concealed weapons is based on the protection of those persons who may come into contact with a weapon bearer. If a weapon is not concealed, one may take notice of the weapon and its owner and govern oneself accordingly, but no such opportunity for cautious behavior or self-preservation exists for one encountering the bearer of a concealed weapon. In light of this policy, the question whether a particular weapon was concealed should be considered from the point of view of one approaching the location of the weapon, and the intent of the defendant as to concealment should not be considered, since a defendant's innocent intent does not make a concealed weapon any more visible.” (94 C.J.S. (2001) Weapons, § 21, p. 594.)

[3] 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[146 Cal.Rptr.3d 231]that give the intended victim time to anticipate and/or prevent an attack.” ( Ibid.)

[4][5][6] 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 “defendant's intended...