People v. Oskins, B117298

Citation69 Cal.App.4th 126,81 Cal.Rptr.2d 383
Decision Date12 January 1999
Docket NumberNo. B117298,B117298
CourtCalifornia Court of Appeals
Parties, 1999 Daily Journal D.A.R. 385, 99 Daily Journal D.A.R. 434 The PEOPLE, Plaintiff and Respondent, v. William S. OSKINS, Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Marc J. Nolan and April L. Sylvester, Deputy Attorneys General, for Plaintiff and Respondent.

EPSTEIN, J.

Penal Code section 12020 makes it illegal to possess any of a long list of weapons. (All unlabeled statutory references are to the Penal Code.) Among them is a "dirk or dagger." Subdivision (c)(24) of the statute defines those terms 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." The principal issue in this case is what, if any, mens rea is required for violation of this portion of the statute.

William S. Oskins appeals from his judgment of conviction by jury trial of possession of a dirk or dagger in violation of section 12020, subdivision (a). He argues that his conviction must be reversed because the trial court excluded evidence as to his intent and because the jury was not required to find that he acted with the necessary mens rea. He also argues that section 12020, subdivision (a) is unconstitutionally overbroad if it criminalizes wholly innocent conduct.

We agree with appellant's arguments regarding the mens rea requirements of section 12020, subdivision (a) as amended in 1995. It follows that appellant should have been allowed to present evidence of his intent with respect to the instrument he possessed, and that the jury should have been instructed on the mens rea necessary for a violation of that statute. Since evidence on that issue was excluded and a necessary instruction was refused, we reverse. It is unnecessary to reach appellant's other arguments.

FACTUAL AND PROCEDURAL SUMMARY

While on patrol at 2 p.m. on July 31, 1997, Los Angeles Police Officer Brien Pogue saw a gray van with the rear license plate obscured by a hinged portion of the left rear door. Officer Pogue stopped the van, which appellant was driving, and ordered appellant and his female passenger to exit. During a pat-down search, Officer Pogue located a knife in appellant's rear pants pocket. It had a two-and-one-half inch stainless steel blade, sharpened on one side, with serrations on a portion of the other side and a handguard. The blade was wrapped in cardboard and packaging tape.

Appellant was arrested and charged with possession of a concealed dirk or dagger in violation of section 12020, subdivision (a). It was alleged that he had suffered three prior convictions within the meaning of section 667.5, subdivision (b) and section 1203, subdivision (e)(4).

The defense theory of the case was that appellant, who was employed as a mechanic, had been using the knife as a tool for work on a car. A friend, Betty Jones, telephoned appellant and asked if they could go to lunch. After he finished the repairs on the car, appellant put the knife and a pair of needlenose pliers in his pants pocket and drove to meet Ms. Jones. Appellant and Ms. Jones picked up food and were returning to another friend's house when they were stopped by the police. Appellant had forgotten that he had the knife in his pocket.

At trial, counsel for appellant sought to call Mike Rose, who employed appellant as a mechanic. The offer of proof was that Mr. Rose had purchased the knife for use in the repair of automobiles. Counsel for appellant The prosecutor objected to these witnesses and to any "testimony on the subject of the purpose for which the knife is used and the other legitimate purposes for the knife, whatever they are, repairing car batteries or cutting cables, or whatever that is, because that is not relevant in these proceedings. [p] The code is very clear that it is possession that is at issue, not possession for any type of illegitimate purpose or possession for use as a weapon. That is not at issue."

also offered the testimony of Dana Holle, who would testify that on the date of his arrest, appellant had been using the knife to repair a car battery at 11:30 a.m.

The trial court agreed with the prosecutor. It reasoned: "[T]he problem is that the Legislature has defined the dirk or dagger because prior to the enactment of this section which defines this, [12020](c)(24), every time there is a dirk or dagger, there would be a challenge. And so you wind up with opinions by the court of appeal that actually had drawings of the instrument because the status as a dirk or dagger was subject to dispute. And so the Legislature, apparently in response to this, passed a specific definition [of] 12020(c)(24). [p] The problem, as I see it, is that the issue is not in the legality of the device but in the concealability of it. Something that would be perfectly legal if it were not concealed is made illegal by being concealed. That appears to be what the case is in this matter.... [p] This knife is not an illegal device. It is a legal device. What makes it a crime in this case is that it was concealed and the statute specifically says if it were not concealed, it would not be illegal. That is the problem. And so since it is not the legality of the device that is in issue, testimony on its use, its legal use, is irrelevant. [p] If this were a baseball bat and your client were a Little League coach, certainly testimony would be relevant that he is carrying this bat to a game. But this is a concealed dirk and so the only issue is, is it a dirk according to the definition of section [12020] (c)(24). Was it concealed. So the definition the jury will have as an instruction and can look at the device, and they will either as a question of fact agree, disagree, and then decide whether it was concealed." The trial court offered appellant's counsel an opportunity to do further legal research on the issue and offered to reconsider its decision to exclude the testimony of Mr. Rose and Ms. Holle. The court also informed counsel that it would reconsider the issue at the close of the prosecution case. Counsel for appellant did not raise the issue again.

During its deliberations, the jury sent out a question: "Was the law broken if the defendant forgot he had the weapon in his pocket after leaving the job site, or was it broken as soon as he put the weapon in his pocket?" Counsel for appellant asked the court to respond that the law was not broken if appellant forgot he had the weapon and that it was not broken when he put the knife in his pocket because he was at work, not in a public place. The trial court and counsel reviewed the text of section 12020 and found no exception for possession of a concealed dirk or dagger in the workplace or at home. The trial court indicated that it wished to conduct additional research, because the response to the jury's question turned on whether concealing a weapon is a crime, no matter where it occurs.

The prosecutor pointed out that the Legislature had made a distinction between public and private places in drafting section 12031 on concealed firearms. She argued that if the Legislature intended to make the same distinction with respect to dirks or daggers, it would have used the same language in section 12020, subdivision (c)(24). She also argued that the evidence did not establish that the location where appellant was working on the car was not a public place. The court recessed to allow time for additional research.

Both counsel for appellant and the prosecutor reported that they had not found cases on point. The trial court cited People v. Gonzales (1995) 32 Cal.App.4th 229, 38 Cal.Rptr.2d 52, for the proposition that the offense turns on the design of the knife and that the intent of the person carrying it is not relevant. The trial court also cited People v. Barela (1991) 286 Cal.Rptr. 458, 234 Cal.App.3d Supp. 15 which held that the exception to the offense of carrying a concealed Counsel for appellant responded that there was no evidence as to where the work on the car was taking place. The trial court pointed out that the knife was given to appellant by Mr. Rose, his employer. The prosecutor argued that the answer to each of the jury's questions should be "Yes." The trial court agreed and informed the jury that the answer to each of its questions was "Yes."

deadly weapon at a business location is limited to the owner of the business.

The jury resumed deliberations after receiving the trial court's answer, and reached a verdict finding appellant guilty of carrying a dirk or dagger in violation of section 12020, subdivision (a).

The prior conviction allegations were tried to the jury and found to be true. The trial court sentenced appellant to a total term of five years in state prison, two years on count 1, and one year for each of the three prior convictions within the meaning of section 667.5, subdivision (b). He has filed a timely appeal.

DISCUSSION

Section 12020, subdivision (a) makes it a felony-misdemeanor offense to carry a concealed dirk or dagger. Section 12020, subdivision (c)(24) defines dirk or dagger. The statute did not define "dirk or dagger" until it was amended in 1993. Since then, the statutory definition has been revised several times. It is the 1995 amendment which is relevant here. Until the Legislature adopted a definition, courts applied a broad judicial formulation: " '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...

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