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F 12.41 n1 Definition of “Dirk or Dagger” (PC 12020).
Effective 1/1/94, PC 12020(c)(24) was added to define “dirk or dagger” as follows: “A knife or other instrument with or without a hand guard that is primarily designed, constructed or altered to be a stabbing instrument designed to inflict great bodily injury or death.” CJ 12.41 has been modified to reflect this change.
Prior to this change, the CALJIC use note recognized that there was a split in authority regarding the definition of dirk or dagger. Hence, the definition proposed by CJ 12.41 contained several bracketed phrases for optional use by the trial judge since the CALJIC Committee took no position as to which definition is correct.
In People v. Pettway (91) 233 CA3d 1067, 1069-79 [285 CR 147], the court of appeal addressed the definition of a dirk. The court implicitly accepted the definition set forth in In re Conrad V. (86) 176 CA3d 775, 777-78 [222 CR 552], which concluded that a dirk or dagger is a street weapon designed and fitted primarily for stabbing which must have a locking blade, a handguard, and have a blade over 2 inches long. Although the Pettway case disagreed with Conrad V. as to what constitutes a “handguard,” it did not disagree with Conrad V.’s basic definition.
A sheathed dirk, dagger or knife which is worn openly suspended from the waist is not “concealed” within the meaning of PC 12020(a). (In re Alfredo S. (84) 162 CA3d 800, 802 [208 CR 794]; PC 12020(e).)
In People v. Wharton (92) 5 CA4th 72, 78 [6 CR2d 673], the Court of Appeal disagreed with the definition of dagger contained in In re Conrad V. (86) 176 CA3d 775 [222 CR 552], and held that it is not necessary for the weapon to have a handguard in order to be a dirk or dagger within the meaning of PC 12020(a). (Wharton 5 CA4th at 78.) However, the Court of Appeal implied that upon a proper request the defendant could obtain an instruction informing the jury that “the absence of a handguard [is] an important factor to be considered in determining whether or not the knife was a dirk or dagger.” (Wharton 5 CA4th at 79.)
[Research Note: See FORECITE BIBLIO 12.40]
F 12.41 n2 “Dirk or Dagger” to Be Strictly Construed (PC 12020).
“[T]he terms dirk or dagger are to be strictly construed.” (People v. Barrios (92) 7 CA4th 501, 505 [8 CR2d 666].) “A knife is not a ‘dirk or dagger’ if it has innocent uses and is of substantially limited effectiveness as a stabbing weapon.” (Id. at 505-06.)
[Research Note: See FORECITE BIBLIO 12.40]
F 12.41 n3 Concealed Dirk Or Dagger: Definition of “Concealed” (PC 12025).
To be “concealed” the weapon must be partially or wholly concealed inside the defendant’s clothing. Hence, merely placing the gun behind one’s back does not suffice as concealment. (This result was reached in In re Lavalle L. UNPUBLISHED (A052159).) While there are no published cases directly on point, the cases which have interpreted the meaning of “concealment” have all involved at least partial concealment within the defendant’s clothing. (In re Victor B. (94) 24 CA4th 521, 525-27 [29 CR2d 362] [dirk concealed in defendant’s clothing]; In re Robert L. (80) 112 CA3d 401, 405 [169 CR 354] [same]; People v. Fuentes (76) 64 CA3d 953, 955 [134 CR 885]; People v. Hale (74) 43 CA3d 353, 356 [117 CR 697]; People v. May (73) 33 CA3d 888, 891 [109 CR 396].) [A copy of the opinion in Lavalle L. is available to FORECITE subscribers. Ask for Opinion Bank # O-113.]
RESEARCH NOTES: See Annotation, Offense of carrying concealed weapon as affected by manner of carrying or place of concealment, 43 ALR2d 492 and Later Case Service.
[Research Note: See FORECITE BIBLIO 12.40]
F 12.41 n4 Dirk Or Dagger: Consideration Of Intended Use When Implement At Issue Has Innocent Uses.
ALERT: People v. Rubalcava (2000) 23 C4th 322 [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. (But see In re Luke W. (2001) 88 CA4th 650, 656-57 [105 CR2d 905] [unconventional pocketknife, in this case, a rectangular, credit-card like object with a variety of tools and blade, which court likened to “Swiss army knife,” is not prohibited “dirk or dagger” under PC 12020].) The pre-Rubalcava analysis is set forth below for reference purposes.
Pursuant to PC 12020(a), a “person… who carries concealed on his or her person any dirk or dagger has committed a crime.” As of 1/1/94, PC 12020(c)(24) was added to define “dirk or dagger” as follows: “A knife or other instrument with or without a handguard that is primarily designed, constructed or altered to be a stabbing instrument designed to inflict great bodily injury or death.” This definition provided by the 1993 legislation clearly designated dirks and daggers as “classic instruments of violence and their homemade equivalents.” (People v. Mowatt (97) 56 CA4th 713, 718-19 [65 CR2d 722].)
The 1995 legislation reconsidered the “dirk or dagger” question and substituted a much looser definition, encompassing both inherently dangerous stabbing weapons and instruments intended for harmless uses but also capable of inflicting serious harm: “As used in this section, a ‘dirk’ or ‘dagger’ means 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.”
Hence, under the 1994-1995 definition which treats dirks and daggers as inherently dangerous weapons regardless of the circumstances in which they are carried, it was held that the possessor’s intent was irrelevant. (See People v. Barrios (92) 7 CA4th 501 [8 CR2d 666] [prosecution may not rely on defendant’s intended use of knife]; People v. Gonzalez (95) 32 CA4th 229, 234 [38 CR2d 52] [defendant may not raise innocent intended use as defense].)
However, “the current version of [PC] 12020(c)(24), which turns on whether a knife or other instrument ‘is capable of ready use as a stabbing weapon,’ casts the issue of intent in a different light. A persuasive argument could be made that by shifting from the design of the weapon to its capability for dangerous use, the legislature opened the door for both the prosecution and the defense to introduce evidence of intended use when the implement at issue has innocent uses but may be considered dangerous under the circumstances of its possession. [Citations.]” (Mowatt, 56 CA4th 713 at 721, fn 7; 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]].) For example, in People v. Graham (69) 71 C2d 303, 328-29 [78 CR 217] a prosecution for robbery while “armed with a dangerous or deadly weapon,” the court held that when “the defendant employs an instrumentality which in the strict sense of the word does not constitute a dangerous or deadly weapon,” the jury must determine “whether the perpetrator intended to use it as a weapon.”
The same rationale should apply, with even greater force, to the current definition of dirk or dagger. Under that definition, a pencil or ball-point pen is a “dirk or dagger” since they are “instruments … capable of ready use as a stabbing weapon.” Hence, unless intended use is included as an element of the charge, every person who carries a pen or pencil in his or her pocket commits a violation of PC 12020.
The word “instrument” also appears in PC 245. The term is defined in terms of the intended use of the instrument, allowing one to properly conclude that a straight pin in an apple is a deadly weapon or instrument under PC 245 (see In re Jose R. (82) 137 CA3d 269, 275-76 [186 CR 898]); it isn’t an inherently deadly weapon, but it is an instrument that can be used toward the same end depending on its intended use.
Accordingly, the use note to CJ 12.42 is incorrect and the jury should be instructed upon intended use as an element of a PC 12020 prosecution for possession of a dirk or dagger. Failure to include this element would render the statute overbroad in violation of the state (Art. I § 15) and federal (14th Amendment) constitutional principles of due process. (See FORECITE PG VII(C)(25).)
Moreover, CJ 12.41 should be modified as set forth in FORECITE F 12.41b to include an element of knowledge and intent to use the instrument as a weapon.
F 12.41 n5 Device Requiring Assembly Before It Can Be Used As A Knife Isn’t A Dirk Or Dagger.
In People v. Sisneros (97) 57 CA4th 1454 [67 CR2d 782] the court held that the “capable of ready use” requirement of PC 12020(c)(24) excludes a device that requires assembly before it can be used as a weapon.
F 12.41 n6 Folding Pocket Knife Is Not Dirk Or Dagger.
In re George W. (98) 68 CA4th 1208 [80 CR2d 868] held that under PC 12020(c)(24) a non-locking folding knife is not a “dirk or dagger.” In order for such a knife to be a dirk or dagger the blade must be exposed and locked into position — as opposed to being closed and retracted into its handle.
F 12.41 n7 Improper To Apply Use (PC 120225.5(a)) And Great Bodily Injury (PC 12022.7(a)) Enhancement To Concealed Firearm Charge (PC 12025(a)(1)).
(See People v. Arzate (2003) 114 CA4th 390 [it is logically inconsistent to inflict great bodily injury and use a gun “in the commission” of the offense of carrying a concealed firearm in a vehicle, because at the point the gun is used it is no longer concealed].)
F 12.41a
Dirk or Dagger: Knowledge That The Instrument Is A Dirk Or Dagger
(PC 12020(a))
*Add to CJ 12.41 as additional element:
The defendant knew that the ____________(insert instrument alleged e.g., knife) was a dirk or dagger as defined elsewhere in these instructions.
Points and authorities
It is a well established principle that, except in the case of certain strict liability “public welfare” cases, the defendant must have knowledge of the facts which make his or her conduct fit the definition of the offense. (See FORECITE F 1.20a and F 3.30a.)
Hence, the jury should be instructed both that the defendant knew he or she was carrying the weapon and also knew that it had the features which make it a dirk or dagger. (See People v. Rubalcava (2000) 23 C4th 322, 333 [96 CR2d 735]; see also Bryan v. U.S. (98) 524 US 184, 194 [141 LEd2d 197, 207; 118 SCt 1939] [knowledge of legal duty required only when statute presents “the danger of ensnaring individuals in apparently innocent conduct”]; Staples v. U.S (94) 511 US 600 [128 LEd2d 608; 114 SCt 1793].)
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon or failure to adequately instruct upon a defense or defense theory violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See generally, FORECITE PG VII(C).]
F 12.41b
Dirk or Dagger: Intent To Use Instrument As A Weapon
(PC 12020(a))
SUBSEQUENT HISTORY: People v. Oskins (99) 69 CA4th 126 [81 CR2d 383] agreed with FORECITE’s previous analysis of this issue and held that an intent to use the instrument as a weapon is an element of the crime. It reversed for failure to instruct on this element. (See FORECITE F 12.41 n4.) However, People v. Rubalcava (2000) 23 C4th 322 [96 CR2d 735] overruled Oskins.
*Add to CJ 12.41 as additional element:
The defendant intended to use the ____________ (insert instrument alleged e.g., knife) as a weapon.
Points and authorities
The term dirk or dagger as defined in PC 12020(c)(24) is so broad that it can be applied to innocent instruments such as a pen or pencil carried in a pocket. (See FORECITE F 12.41 n4.) People v. Oskins (99) 69 CA4th 126, 138 [81 CR2d 383] recognized this problem:
“In a literal sense, section 12020, subdivision (a) and (c)(24) could be construed as imposing liability on anyone who conceals on his or her person a device that is capable of ready use as a stabbing weapon, whether or not the device is designed for another, innocent purpose, and possessed for that purpose. That reading would be so broad as to criminalize a large range of heretofore innocent conduct, acts that were never before regarded as criminal. The tailor who places a pair of scissors in his jacket and the carpenter who puts an awl in his pocket, each for the completely innocent purpose of using the instrument in his or her craft, would be felons. Unless the Legislature makes it clear that it intends so bizarre a result, we will not infer such a meaning.” (Oskins, 69 CA4th at 138.)
Accordingly, Oskins concluded that the prosecution must prove that the defendant “knew that he or she possessed a device ‘capable of ready use as a stabbing weapon that may inflict great bodily injury or death’ and carried it for use as a weapon.” (Oskins, 69 CA4th at 139; see also People v. Hyun DEPUBLISHED (2000) 77 CAth 385 [91 CR2d 746] [possession of bayonet must be with intent to use it as a weapon].)
Hence, the jury should be instructed both that the defendant intended to use the instrument as a weapon.
CAVEAT: People v. Oskins (99) 69 CA4th 126 [81 CR2d 383] was overruled by People v. Rubalcava (2000) 23 C4th 322, 334 fn 8 [96 CR2d 735].
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon or failure to adequately instruct upon a defense or defense theory violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See generally, FORECITE PG VII(C).]
F 12.41c
Dirk or Dagger: Substantial Concealment Insufficient
*Modify CJ 12.41 (element 2) as follows [deleted language is between << >>]:
2. he … was <<substantially>> concealed …
Points and authorities
PC 12022(a) requires that the dirk or dagger be “concealed on his or person.” There is no ambiguity in this language and hence, it should be interpreted to mean what it says. (See People v. Overstreet (86) 42 C3d 891, 895 [231 CR 213].) Moreover, even if there were ambiguity in the statute it should be resolved in favor of the defendant. (14th Amendment; U.S. v. Lanier (97) 520 US 259, ____ [137 LEd2d 432; 117 SCt 1219, 1225]; People v. Weidert (85) 39 C3d 836, 848 [218 CR 57].) Hence, there is no basis for concluding that anything short of total concealment should satisfy the statute. Nor does any case hold that less than total concealment will suffice.
Accordingly, CJ 12.41 (Element 2) incorrectly interprets the statute to only require “substantial concealment.” The above modification of CJ 12.41 is necessary under the state and federal constitutional rights to trial by jury and due process (6th & 14th Amendments) which require the prosecution to prove every element of the charge. (In re Winship (70) 397 US 358, 364 [25 LEd2d 368; 90 SCt 1068]; People v. Figueroa (86) 41 C3d 714, 724 [224 CR 719]; People v. Bobo (90) 229 CA3d 1417, 1442 [3 CR2d 747].)
