People v. Pettway, A052481

Citation233 Cal.App.3d 1067,285 Cal.Rptr. 147
Decision Date28 August 1991
Docket NumberNo. A052481,A052481
CourtCalifornia Court of Appeals
PartiesThe PEOPLE of the State of California, Plaintiff and Respondent, v. Curtis T. PETTWAY, Defendant and Appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Christopher J. Wei, Laurence K. Sullivan, Deputy Attys. Gen., for plaintiff and respondent.

LOW, Presiding Justice.

We hold that a knife with a handle designed to fit in the palm of the hand, with a two-and one-fourth-inch blade protruding between the middle fingers, is a "dirk or dagger" within the meaning of Penal Code section 12020, subdivision (a) (hereafter § 12020(a)). We disagree with In re Conrad V. (1986) 176 Cal.App.3d 775, 222 Cal.Rptr. 552, which held that a similar knife was not a dagger, in part because it did not have a handguard.

Defendant Curtis T. Pettway appeals from the revocation of probation and the imposition of a three-year state prison sentence. The defendant contends that he did not violate section 12020(a) by wearing a knife with a two-and one-fourth-inch fixed blade concealed in his waistband, and therefore his probation should not have been revoked. We affirm.

In 1989 defendant pled guilty to selling a controlled substance. (Health & Saf.Code, § 11352.) The court suspended imposition of the sentence and placed the defendant on probation for three years. In October 1990 defendant was detained for urinating in the street. When the officer conducted a pat search, a knife was found on the defendant and he was arrested for carrying a concealed dangerous weapon. On January 23, 1991, the trial court revoked probation for a violation of section 12020(a). This statute makes it a felony for any person to "carr[y] concealed upon his or her person any dirk or dagger." The defendant contends that his knife is not a "dirk or dagger" and he requests that the order revoking probation be reversed.

The test on appeal is whether there is substantial evidence to support the conclusion of the trier of fact. The evidence will be viewed in the light most favorable to the judgment, but the issue will be resolved in light of the whole record. (People v. Johnson (1980) 26 Cal.3d 557, 578, 162 Cal.Rptr. 431, 606 P.2d 738.) The knife was brought into the probation revocation hearing, where it was examined by the court and found to be a dagger. In order to rule in defendant's favor it would be necessary to find that the evidence did not support the conclusion as a matter of fact or that as a matter of law the knife was not a dagger.

"Dirk or dagger" is not defined in the code itself. The following definition, however, has been widely followed. "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." (People v. Ruiz (1928) 88 Cal.App. 502, 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. Villagren (1980) 106 Cal.App.3d 720, 725, 165 Cal.Rptr. 470.) 1

"As is the usual practice in interpreting criminal statutes, the term 'dirk or dagger' is to be strictly construed." (People v. Bain (1971) 5 Cal.3d 839, 850, 97 Cal.Rptr. 684, 489 P.2d 564.) The test of a dirk or dagger for the purposes of section 12020(a) is whether the instrument is designed primarily for stabbing, and not whether the instrument can be used for stabbing or is capable of inflicting death. (Bills v. Superior Court (1978) 86 Cal.App.3d 855, 860, 150 Cal.Rptr. 582.) Depending on its characteristics, an instrument may be a dagger as a matter of law or it may be a dagger as a matter of fact for the trier to find. (In re Quintus W. (1981) 120 Cal.App.3d 640, 644-645, 175 Cal.Rptr. 30.) A pounded bedspring with a pointed tip was held a dirk or dagger as a matter of law because it was designed, and could only be used, to stab. (People v. Cabral (1975) 51 Cal.App.3d 707, 712, 124 Cal.Rptr. 418.) However, a knife that had blades that did not lock into place was not a dagger because its effectiveness as a stabbing weapon was severely limited by this attribute. (People v. Forrest, supra, 67 Cal.2d at p. 481, 62 Cal.Rptr. 766, 432 P.2d 374.) A knife is not, as a matter of law, a dagger if it has characteristics substantially limiting its stabbing effectiveness. (Ibid.)

The weapon in this instance has a wedge-shaped, two-and one-quarter-inch fixed blade. Although one side is sharper than the other, both sides are narrowed to an edge that is thinner than at the center. The blade meets at a tapered point. The handle is on the same plane as the blade and is positioned so that it fits into the palm of the hand with the blade protruding from between the middle fingers. The handle is covered with a corrugated plastic that helps ensure a secure grip by the wielder. Furthermore, the handle has indentations for the fingers that would hold the knife in place. (A photocopy of the knife is attached as Appendix A.)

Defendant contends that his knife is not a dirk or dagger because there is no handguard, the blade is short and is only sharpened on one side. Defendant relies upon criteria established in In re Conrad V., supra, 176 Cal.App.3d at page 778, 222 Cal.Rptr. 552. The court in Conrad V. stated that in addition to being a straight weapon designed and fitted primarily for stabbing, a knife must have a locking blade, a handguard, and perhaps a blade of a certain length. The Conrad V. court determined that a weapon similar to that at issue here was not a dirk or dagger since it did not have a handle or handguard, had a blade of one and one-half inches, and it was sharpened on only one side; consequently it lacked the minimal characteristics of knives classified as dirks or daggers. (Ibid.) Defendant asserts that his knife is virtually identical to the one pictured in Conrad V., and for the same reasons it is not a dirk or dagger.

. Although the knives are very much alike, Conrad V. is distinguishable. The blade in Conrad V. was one and one-half inches long, while the blade in the case at bar is two and one-quarter inches long. The blade in this instance is almost as long as the entire instrument in Conrad V. Conrad V. relies on Penal Code section 626.10, prohibiting weapons of a certain length on school grounds, for the proposition that the Legislature evidenced an intent not to regulate knives with a blade of under two inches. (In re Conrad V., supra, 176 Cal.App.3d at p. 778, 222 Cal.Rptr. 552.) Because of its length, this knife would not be exempt from regulation even if the Conrad V. court was correct that the Legislature intended not to regulate knives under two inches. A belt buckle knife with a blade of two and one-half to three inches has been found to be a dirk or dagger as a matter of law. (People v. McClure (1979) 98 Cal.App.3d Supp. 31, 32-33, 160 Cal.Rptr. 83.)

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  • People v. Aubrey
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    ...is a dirk or dagger has long been deemed to be an element of the offense defined by section 12020(a) (see People v. Pettway (1991) 233 Cal.App.3d 1067, 1072, 285 Cal.Rptr. 147) and, thus, a question of fact for the jury (People v. Bain (1971) 5 Cal.3d 839, 850-851, 97 Cal.Rptr. 684, 489 P.2......
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