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F 12.42 n1 Intended Use Applicable To “Dirk Or Dagger” Determination (PC 12020).
ALERT: People v. Rubalcava (2000) 23 C4th 322, 334 fn 8 [96 CR2d 735] overruled People v. Oskins (99) 69 CA4th 126 [81 CR2d 383] which held that an intent to use the instrument as a weapon is an element of the crime. The pre-Rubalcava analysis is set forth below for reference purposes.
CJ 12.42, in reliance upon People v. Grubb (65) 63 C2d 614, 619-21 [47 CR 772], informs the jury that it may consider the “circumstances attending any possession” in determining whether the instrument or object at issue was the type of weapon specifically prohibited by the statute. However, there is a split in authority as to whether Grubb, which involved a billy club, applies to the determination of a dirk or dagger. In People v. Ferguson (70) 7 CA3d 13, 18-20 [86 CR 383] (butcher knife with an 8″ blade, a point and one cutting edge); In re Robert L. (80) 112 CA3d 401 [169 CR 354] (common ice pick); and In re Quintus W. (81) 120 CA3d 640, 644-45 [175 CR 30] (steak knife with 4 5/8″ long blade), the Second District held it was proper to allow the jury to consider the surrounding circumstances and subjective intent of a knife’s possessor as set forth in CJ 12.42 when determining whether the concealed instrument was a dirk or dagger. However, the First District limited application of the Grubb language to clubbing weapons “of a kind commonly known as a black jack, slung shot, billy …” in Bills v. Superior Court (78) 86 CA3d 855, 861-62 [150 CR 582] [unaltered barber scissors] and People v. LaGrande (79) 98 CA3d 871 [159 CR 709] [letter or wood awl 7 1/2″ long with a sharp point]; see also People v. Oskins (99) 69 CA4th 126 [81 CR2d 383] [overruled by People v. Rubalcava (2000) 23 C4th 322, 334 fn 8 [96 CR2d 735].) See also FORECITE F 12.41a and F 12.41b.
In People v. Barrios (92) 7 CA4th 501 [8 CR2d 666], the Fifth District discussed these two lines of cases and agreed with the First District for the following reasons: (1) the terms “dirk” or “dagger” are to be strictly construed; (2) if the knife has innocent uses and is of substantially limited effectiveness as a stabbing instrument, it cannot be held to be a dirk or dagger; (3) “‘no matter how lethal the instrument may be, we cannot hold its concealed possession is a crime unless the legislature has so provided.’ [Citation].” (Barrios 7 CA4th at 505-06.) (See also People v. Gonzales (95) 32 CA4th 229, 234 [38 CR2d 52].)
F 12.42 n2 Intended Use Instruction Required When Alleged Weapon Is A Vehicle.
The Supreme Court has noted that there are two classes of dangerous or deadly weapons. The first class is instrumentalities such as guns, dirks and blackjacks, which are weapons in the strict sense of the word as they are dangerous or deadly to others in their ordinary use so that, as a matter of law, they may be said to be dangerous and deadly weapons. (People v. Graham (69) 71 C2d 303, 327 [78 CR 217].)
Instrumentalities falling into the second class, such as ordinary razors, pocket-knives, canes, hammers, hatchets and other sharp or heavy objects, which are not weapons in the strict sense of the word and are not dangerous or deadly to others in the ordinary use for which they are designed, may not be said to be dangerous or deadly weapons as a matter of law. (Graham, 71 C2d at 327-28.) A fact finder may only conclude that such an instrumentality is a deadly or dangerous weapon if it finds that (1) the instrument could be used as a dangerous or deadly weapon and (2) the defendant intended so to use it. (Id. at 328.)
Under this definition, if it is alleged that a vehicle is a deadly weapon, the requisite factual findings as to both the capability and intended use of the vehicle must be made by the jury.
F 12.42 n3 THIS ENTRY HAS BEEN DELETED.
F 12.42a
Intended Use Must Be For Deadly Purpose
SUBSEQUENT HISTORY: In the July 1998 Pocket Part, the CALJIC Committee deleted the language addressed in FORECITE F 12.42a. (See CALJIC History CJ 12.42.)
*Modify the last phrase of CJ 12.42 to provide as follows [added language is capitalized]:
… and evidence, if any, indicating its intended use by the possessor for a [dangerous] [DEADLY] rather than a harmless purpose.
Points and Authorities
When CJ 12.42 is used in a case requiring a determination of the existence of a “deadly” weapon, the jury should be required to determine whether the intended use was for a “deadly” rather than “dangerous” purpose. (People v. Graham (69) 71 C2d 303, 328 [78 CR 217].)
F 12.42b
Determination Of Deadly Weapon: Two-Pronged Jury Finding Required
(See FORECITE F 9.02a.)