People v. Munster
| Decision Date | 29 November 2016 |
| Docket Number | D068629 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. CRUZ MUNSTER, Defendant and Appellant. |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, Louis R. Hanioan, Judge. Affirmed.
Stephen M. Vasil, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
Cruz Munster was convicted by a jury of one count of carrying a concealed dirk or dagger. (Pen. Code, § 21310; all statutory references are to this code.) He was sentenced to local imprisonment for the midterm of two years. (§ 1170, subd. (h).) He appeals, contending he is entitled to reversal for prejudicial instructional and evidentiary error.
Munster was charged with the offense after being stopped on the street by a patrolling police officer, who noticed that Munster had something protruding within his jacket sleeve toward the cuff area. The officer asked Munster if he had any weapons on him, and Munster responded that he had a knife. The officer pulled from Munster's sleeve an eight-inch bamboo handled, bamboo capped fixed blade knife. On appeal, Munster argues that the instructions given to the jury erroneously defined the statutory terms "dirk or dagger" by incorrectly describing an exception to those terms created under section 16470, a "pocketknife." After discussions between the court and counsel about what kind of a knife was found, the trial court added descriptive language to the pattern instruction (CALCRIM No. 2501), stating that a "pocketknife" cannot be used as a stabbing weapon unless the user performs "several intervening manipulations." (In re Luke W. (2001) 88 Cal.App.4th 650, 655-656 (Luke W.).) Munster claims that his due process rights and Sixth Amendment right to competent counsel were compromised when the jury received this definition of an element of the offense, because it was attributable either to ineffective assistance of trial counsel or to the trial court's independent misstatement of the statutory criteria. (People v. Hajek (2014) 58 Cal.4th 1144, 1220 (Hajek) [].)
Munster also contends the trial court abused its discretion in denying his motion to exclude testimony from the arresting officer, who described the nature of his patrol dutieswhile assigned to the gang suppression detail, and who stated he was already acquainted with Munster before the encounter that led to the arrest. As will be discussed, we find no prejudicial instructional error nor harmful evidentiary error. We affirm.
On a fall afternoon in 2013, Munster and a friend were walking along a city street. San Diego police officer Aziz Brou, from the gang suppression team, and a fellow officer were on duty in the area. They were driving around in their patrol car to observe neighborhood conditions and to try to talk to people and witnesses if crimes occurred. Officer Brou had previously talked to Munster, and when he saw him, the officers parked the car and got out to make contact. As Brou walked up to Munster, he started making conversation and extended his hand for a handshake. Although Munster started to comply, he pulled back and said he did not want to shake hands. Brou noticed Munster was holding things in his fist and asked about them. Munster replied, "It's just bud," which Brou understood to refer to marijuana. Brou asked Munster to unclench his hand, and when he did, Brou saw a blue cigarette lighter and a leafy substance inside a white plastic wrapper.
As Brou was taking the lighter and bindle from Munster's hand, he noticed something was protruding within the left forearm area of Munster's jacket, near the cuff. Brou asked Munster if he had any weapons, and looking towards his left forearm, Munster said he had a knife. Brou asked Munster to turn around so he could remove the knife from his jacket sleeve, and Munster cooperated. Once Brou patted down the jacketsleeve, he felt something and pulling up the sleeve, was able to remove an eight-inch cylindrical bamboo object. This closed bamboo cylinder could be pulled apart into two pieces, one piece being a six-inch long sheath and the other, a bamboo handle with a two and three-quarter inch knife blade fixed in it. Munster was arrested and charged.
"The question of what constitutes a dirk or dagger has bedeviled courts for decades." (People v. Sisneros (1997) 57 Cal.App.4th 1454, 1456 (Sisneros).) Section 21310 and its predecessor statutes make it a crime to carry on the person a concealed dirk or dagger. Section 16470 now provides the applicable definition of dirk or dagger as (§ 16470, italics added; see Luke W., supra, 88 Cal.App.4th 650, 653; In re George W. (1998) 68 Cal.App.4th 1208, 1213-1215.)
As this court outlined in People v. Mitchell (2012) 209 Cal.App.4th 1364, 1371 (Mitchell), the Legislature's purpose in enacting this prohibition "was to combat the dangers arising from the concealment of weapons," and to enable third parties to protect themselves from exposure to the risk of a surprise attack. (Id. at pp. 1371, 1375.) There, we relied on Luke W., supra, 88 Cal.App.4th 650, 653 for the proposition that "thefolding 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.' " (Mitchell, supra, at p. 1371.) For example, in Sisneros, supra, 57 Cal.App.4th 1454, the court concluded that "the 'capable of ready use' requirement excludes from the definition of dirk or dagger a device carried in a configuration that requires assembly before it can be utilized as a weapon." (Id. at p. 1457; § 16470.)
We previously denied Munster's separately filed motion for judicial notice on appeal, submitting legislative history materials. (Evid. Code, §§ 452, 453, 459, subd. (a).) The trial court was not asked to take judicial notice of this information concerning the predecessor statute to section 16470, documenting the creation of certain exceptions to the "dirk or dagger" definition, including a "pocketknife." The gist of this information was thoroughly discussed in cases such as Luke W., supra, 88 Cal.App.4th 650, 652-654 and In re George W., supra, 68 Cal.App.4th 1208, 1214. It is clear from the 1995 and 1997 amendment history, as relevant to sections 16470 and 21310, that the exceptions from the dirk/dagger definition were first expanded, then narrowed, to accommodate different considerations about the dangerous quality of a weapon's ready availability for use. (People v. Castillolopez (2016) 63 Cal.4th 322, 328-329.) The 1997 amendment clarified that a folding knife or pocketknife would qualify as a dirk or dagger only if the blade was exposed and locked into position. (Ibid.; Luke W., supra, at pp. 653-654; § 16470.)
Whether a challenged instruction accurately conveys the legal requirements for proving a particular offense is a question of law subject to independent review. (People v. Posey (2004) 32 Cal.4th 193, 2l8.) On appeal, Munster has several interrelated claims based on the sentence the trial court added to CALCRIM No. 2501, reading "Although they may not have folding blades, pocket knives are small knives obviously designed to be carried in a pocket in a closed state, and which cannot be used until there have been several intervening manipulations." (Italics added.) This language tracks the analysis in Luke W., supra, 88 Cal.App.4th 650, 656, concerning types of knives, as quoted in the "Related Issues" notes to CALCRIM No. 2501.
For a conviction, the jury was required to find that Munster concealed a knife qualifying as a dirk or dagger that was capable of ready use as a stabbing weapon, because its "blade was exposed and locked into position." (§ 16470.) Here, only the "exposed" element is disputed, as this was a fixed blade knife. Officer Brou demonstrated for the jury how the bamboo cylinder could be pulled apart by placing one hand on each end and then pulling in opposite directions, to reveal the knife blade fixed in the handle. However, the bamboo cap was on the knife when found in the sleeve. In closing argument, defense counsel asked the jury to draw inferences that this was a pocketknife that did not qualify as a dirk or dagger because it was found in a closed state. In rebuttal, the prosecutor argued the evidence showed Munster was carrying a stabbingweapon, rather than a small pocketknife that could not be used until there were several intervening manipulations of it.
Munster contends the court misunderstood the arguments his trial counsel was trying to make about the proper interpretation of the pocketknife exception...
To continue reading
Request your trial