Quintus W., In re, Cr. 38633

• Decision Date: 18 June 1981
• Docket Number: Cr. 38633
• Citation: 175 Cal.Rptr. 30,120 Cal.App.3d 640
• Court: California Court of Appeals Court of Appeals
• Parties: In re QUINTUS W., a Person Coming Under the Juvenile Court Law. The PEOPLE, Plaintiff and Respondent, v. QUINTUS W., a Minor, Defendant and Appellant.

Page 30

175 Cal.Rptr. 30

120 Cal.App.3d 640

In re QUINTUS W., a Person Coming Under the Juvenile Court Law.

The PEOPLE, Plaintiff and Respondent, v. QUINTUS W., a Minor, Defendant and Appellant.

Cr. 38633.

Court of Appeal, Second District, Division 5, California.

June 18, 1981.

Hearing Denied Aug. 12, 1981.

Quin Denvir, State Public Defender, under appointment by the Court of Appeal, and Ernest Martinez, Deputy State Public Defender, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Shunji Asari and William R. Pounders, Deputy Attys. Gen., for plaintiff and respondent.

HASTINGS, Associate Justice.

Quintas Alfred W. appeals from a juvenile order of wardship (Welf. & Inst. Code, § 602) upon a finding that he was guilty of carrying upon his person a dirk or dagger in violation of Penal Code section 12020, subdivision (a), a misdemeanor. The court ordered that appellant may not be held in physical confinement for a period to exceed one year and that he was to be placed on home probation in his mother's home. He appeals, contending (1) that the kitchen knife found on his person was not a "dirk or dagger" within the meaning of Penal Code section 12020; (2) that his extrajudicial statements regarding his intended use of the kitchen knife were immaterial and should have been excluded; (3) that his extrajudicial statements were improperly admitted since the corpus of the crime was not independently proven; and (4) that the minute orders must be modified to reflect that the court found the offense to be a misdemeanor.

At approximately 3:30 p. m., on May 5, 1980, Officer Voge saw appellant writing on the wall of a building and stopped his police car. Appellant looked in the officer's direction, then began to walk away. Voge told appellant to stop and place his hands behind his neck. (It was stipulated that the officer had probable cause to detain appellant and reasonable cause to conduct a search.) During a patdown search, the officer recovered from appellant's right rear pocket a white handled steak knife with a blade 45/8 inches long. As the knife was taken from him, he said, "Hey, man, that's my knife. I carry it for protection. There are some dudes trying to jack me up."

Appellant argues that the trial court erred in finding that "the unaltered kitchen knife" was a "dirk or dagger" within the meaning of Penal Code section 12020.

Although the code does not define "dirk or dagger," the courts have provided a general definition which has been consistently followed. In Bills v. Superior Court, 86 Cal.App.3d 855, 859, 150 Cal.Rptr. 582, the court noted: "In six appellate decisions we find this quote: '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.)' (Citations.)"

As appellant correctly points out, not every knife is "a dirk or dagger." However, that determination is a question for the trier of fact to determine. (People v. Bain, 5 Cal.3d 839, 851, 97 Cal.Rptr. 684, 489 P.2d 564.)

In his argument, appellant incorrectly seizes upon and emphasizes that portion of the definition which states: "They may consist of any weapon fitted primarily for stabbing;" converts the permissive word "may" into the mandatory word "shall;" magnifies the use of the word "primarily" and asserts that the "logical and reasonable test" of a dirk or dagger must be "whether it is a weapon designed primarily for stabbing."

The prevailing definition, relevant to knives, is that a dagger is any straight knife to be worn on the person which is capable of inflicting death, except the pocketknife. (See People v. Bain, supra; People v. Shah, 91 Cal.App.2d 716, 720, 205 P.2d 1081 (7 spring-blade knife was a dagger because blade locked in place); People v. Ruiz, 88 Cal.App. 502, 504, 263 P. 836 (partially filed bayonet was a dagger)). Bain involved a folding knife with a pointed five-inch-long blade with dull beveled sides that could be locked into position when opened manually. Because the knife could be folded, and because a pocket knife is not a dirk or dagger, the court held it to be a close question of fact whether the knife was a dirk or dagger. In People v. Ferguson, 7 Cal.App.3d 13, 86 Cal.Rptr. 383, the court held that an ordinary kitchen butcher knife, having a wooden handle and an eight-inch blade, had the characteristics of "a stabbing and cutting weapon," and thus, the determination of whether it was a dirk or dagger was properly left for the jury to determine. The court in People v. Villagren, 106 Cal.App.3d 720, 165 Cal.Rptr. 470, also held that the jury properly found that a "hunting knife" with a 43/8th inch-long relatively straight blade was a dirk or dagger.

In In re Robert L., 112 Cal.App.3d 401, 404, 169 Cal.Rptr. 354, the court, in concluding that the trial court was justified in its determination that an ice pick fell within the statutory proscription, relied upon principles set forth in People v. Grubb, 63 Cal.2d 614, 47 Cal.Rptr. 772, 408 P.2d 100, wherein it was observed that "The Legislature's understandable concern with the promiscuous possession of objects dangerous to the lives of members of the public finds manifestation in section 12020 (P) 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. (Citation.) (P) Thus we hold that the statute embraces instruments other than those specially created or manufactured for criminal purposes; " (Id. at pp. 620-621, 47 Cal.Rptr. 772, 408 P.2d 100.)

In contrast, in People v. Forrest, 67 Cal.2d 478, 62 Cal.Rptr. 766, 432 P.2d 374, it was held that an oversized two-bladed pocketknife was not a dirk or dagger as a matter of law because the blades did not lock into place, thus severely limiting its effectiveness as a stabbing instrument. And in Bills v. Superior Court, supra, 86 Cal.App.3d 855, 150 Cal.Rptr. 582, the court concluded that a pair of unaltered barber scissors could not be a dirk or dagger because "scissors are never designed...