People v. Mowatt

• Citation: 56 Cal.App.4th 713,65 Cal.Rptr.2d 722
• Decision Date: 22 July 1997
• Docket Number: Nos. A072760,A074721,s. A072760
• Court: California Court of Appeals
• Parties: , 97 Cal. Daily Op. Serv. 5811, 97 Daily Journal D.A.R. 9295 The PEOPLE, Plaintiff and Respondent, v. Samuel MOWATT, Defendant and Appellant. In re Samuel MOWATT, On Habeas Corpus.

Page 722

65 Cal.Rptr.2d 722

56 Cal.App.4th 713, 97 Cal. Daily Op. Serv. 5811,

97 Daily Journal D.A.R. 9295

The PEOPLE, Plaintiff and Respondent, v. Samuel MOWATT, Defendant and Appellant In re Samuel MOWATT, On Habeas Corpus.

Nos. A072760, A074721.

Court of Appeal, First District, Division 3, California.

July 22, 1997.

Certified for Partial Publication. ^*

[56 Cal.App.4th 715] Richard J. Krech, Oakland, under appointment by the Court of Appeals, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, Christina V. Kuo, Deputy Attorney General, for Plaintiff and Respondent.

PARRILLI, Associate Justice.

A jury convicted Samuel Mowatt of exhibiting a deadly weapon, a misdemeanor, and carrying a concealed dirk or dagger, a felony. The felony conviction was Mowatt's third strike; the jury also found he had served a prior prison term. The trial court sentenced Mowatt to 26 years to life in prison and ordered him to pay a $10,000 restitution fine. On appeal, Mowatt contends the hunting knife he was charged with carrying was not a "dirk or dagger" under the applicable statutory definition. We agree. As a matter of law, an ordinary hunting knife is not "a knife or other instrument ... primarily designed, constructed, or altered to be a stabbing instrument designed to inflict great bodily injury or death," as provided by Penal Code section 12020, subdivision (c)(24) ¹ in 1994 and 1995.

Because we reverse Mowatt's felony conviction, we need not reach his claims involving three strikes issues and the restitution fine. Our disposition also moots his claim of

ineffective assistance of counsel on the "dirk or dagger" issue, which he raises both on appeal and in a habeas corpus petition, which we consolidated with the appeal. In the unpublished portion of our opinion, we find no merit in Mowatt's appellate claims of instructional error on reasonable doubt and the insanity defense.

BACKGROUND

Around 7:30 on the evening of December 8, 1994, Mowatt entered a bar in the town of Lucerne, in Lake County, and ordered a drink. There was one other customer in the bar, William Mathis, a retiree in his sixties. Mowatt, who was in his late forties, thought Mathis was staring at him in a threatening manner. Mowatt felt uncomfortable "because I was the only Indian in a Caucasian bar." He asked Mathis several times if he had a problem. Mathis said he did not and asked Mowatt if he had a problem. Mathis testified he did not speak in anger to Mowatt. Eventually, Mathis went to the restroom. Mowatt followed him, and in the restroom Mathis saw Mowatt take a knife from his jacket and put it in his back pocket.

Mathis returned to the bar and told the owner Mowatt had a knife. Mowatt came back and again asked Mathis if he had a problem. Mathis said no. Mowatt pulled out the knife and began waving it at Mathis, saying "come on." Mathis described the knife as "a little hunting knife." (When the knife was introduced into evidence, the trial court described it as "typical of what one would call a hunting knife," a little over eight and a quarter inches long altogether, with a straight four and a quarter inch fixed blade sharpened on one side, serrations along a portion of the unsharpened side, and a small guard to prevent the fingers from slipping off the handle.) Mathis picked up a bar stool and approached Mowatt, jabbing at him with the legs of the stool. Mowatt backed out of the bar, and went across the street to a store to buy some beer. There, he was arrested by an officer responding to a "911" call from the bar owner's wife.

Defense counsel objected when the prosecutor offered the knife into evidence. He asked the court to find the knife was not a "dirk or dagger" as a matter of law. The prosecutor argued "the legislature has defined what a ... dirk or dagger is, and that includes a knife designed for stabbing and designed so that it can inflict great bodily injury or death. And I think, as the Court observes this knife, it obviously fits that definition...." Defense counsel responded by referring to the case law on dirks and daggers, and essentially conceding the status of the knife was a question of fact for the jury. ² The court, after carefully examining the knife, concluded it was for the jury to decide whether it was a dirk or dagger "under the definition, the technical definition, as defined by case law...."

DISCUSSION

1. A Hunting Knife Was Not a "Dirk or Dagger" in 1994

It is a felony for anyone to "carr[y] concealed upon his or her person any dirk or dagger." (§ 12020, subd. (a).) Until 1994, case law provided the definition of "dirk or dagger" in prosecutions under section 12020. First stated in People v. Ruiz (1928) 88 Cal.App. 502, 263 P. 836, the following broad and flexible formulation was quoted and applied in numerous opinions. "A dagger has been defined as any straight knife to be worn on the person which is capable of inflicting death except what is commonly known as a 'pocket-knife.' Dirk and dagger are used synonymously and consist of any straight stabbing weapon, as a dirk, stiletto, etc. (Century Dict.) They may consist of any weapon fitted primarily for stabbing. The word dagger is a generic term covering the dirk, stiletto, poniard, etc. (Standard Dict.)" Application of this judicially derived definition was sometimes inconsistent. (See, e.g., People v. Barrios (1992) 7 Cal.App.4th 501, 504-505, 8 Cal.Rptr.2d 666 [discussing conflict between First and Second Appellate Districts on whether attendant circumstances of possession, particularly defendant's intent, were relevant to "dirk or dagger" finding and agreeing with First Appellate District that they were not]; People v. Pettway, supra, 233 Cal.App.3d at pp. 1070-1071, 285 Cal.Rptr. 147 [disagreeing with In re Conrad V. (1986) 176 Cal.App.3d 775, 778, 222 Cal.Rptr. 552, regarding status of very similar unorthodox stabbing weapons with short blades designed to protrude between fingers]; CALJIC No. 12.41 (5th ed.1988) and Use Note, pp. 66-67 [providing alternate definitions based on divergent case law].) Courts of Appeal, noting the confusion in the cases, suggested the Legislature might clarify the situation. (People v. Pettway, supra, 233 Cal.App.3d at p. 1070, fn. 1, 285 Cal.Rptr. 147 [urging Legislature "to abandon, or at least define, the arcane term 'dirk or dagger' "]; People v. Wharton (1992) 5 Cal.App.4th 72, 77, 6 Cal.Rptr.2d 673, fn. 3 ["It is hoped the Legislature will examine these problem areas and produce a clear definition of a dagger and dirk"].)

(Id. at p. 504, 263 P. 836; see, e.g., People v. Forrest (1967) 67 Cal.2d 478, 480, 62 Cal.Rptr. 766, 432 P.2d 374; People v. Bain (1971) 5 Cal.3d 839, 851, 97 Cal.Rptr. 684, 489 P.2d 564; People v. Villagren (1980) 106 Cal.App.3d 720, 725, 165 Cal.Rptr. 470; People v. Pettway (1991) 233 Cal.App.3d 1067, 1069-1070, 285 Cal.Rptr. 147.)

In 1993 the Legislature enacted the definition governing Mowatt's case: "As used in this section, a 'dirk' or 'dagger' means 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." (§ 12020, subd. (c)(24), as enacted by Stats.1993, ch. 357, § 1, p. 1792.) It is immediately apparent that the 1993 Legislature chose a considerably more restrictive definition than the courts did. Instead of including "any straight knife ... capable of inflicting death," which "may consist of any weapon fitted primarily for stabbing" (People v. Ruiz, supra, 88 Cal.App. at p. 504, 263 P. 836, italics added), the Legislature decided a "dirk or dagger" must be primarily designed as a stabbing weapon, meant to kill or to grievously wound a victim.

It has long been recognized that section 12020, subdivision (a) proscribes some weapons that are inherently dangerous, and some that are not designed for use as weapons but can be used to wound or kill. ³ "The Legislature here sought to outlaw the classic instruments of violence and their homemade equivalents; the Legislature sought likewise to outlaw possession of the sometimes-useful object when the attendant circumstances, including the time, place, destination of the possessor, the alteration of the object from standard form, and other relevant facts indicated that the possessor would use the object for a dangerous, not harmless, purpose. [Fn. and citation omitted]." (People v. Grubb (1965) 63 Cal.2d 614, 620-621, 47 Cal.Rptr. 772, 408 P.2d 100 (Grubb ) [ "weapon of the kind commonly known as a ... billy" included shortened baseball bat carried in car, but would not apply to Little Leaguer at bat]; cf. People v. Barrios, supra, 7 Cal.App.4th at The definition provided by the 1993 Legislature clearly designates dirks and daggers as "classic instruments of violence and their homemade equivalents," in the terms used by the Grubb court. While the case-law definition was broad enough to include ordinary knives with stabbing capability, the Legislature's formulation tracked the technical definition of dirks and daggers as stabbing weapons distinct from knives, which are cutting tools that may also be used as weapons. ⁴ "In pure usage the dagger, always a weapon, should have a symmetrical tapering blade with two, three, or even four edges and a sharp point. It is primarily designed for thrusting or stabbing. The knife, sometimes a weapon, sometimes a tool, should have a single edge for each blade, though the back can be sharpened for a short distance near the point. It is designed primarily for cutting but can also be used for thrusting. The dirk is a variant of the knife. In its original form it was a weapon with an evenly tapered blade sharpened on one edge. In the late 18th and early 19th centuries, however, the name was applied to all the short side arms carried by naval officers. Thus, it included true daggers and sharply curved knives almost of cutlass length." (Peterson, American Knives: The First...