Client #1: Melinda Sims

Transcription

1 Client #1: Melinda Sims At our meeting this afternoon, Ms. Sims and I reviewed the information she provided me the morning of June 25 when we met at the Yolo County Jail. She also provided me with some additional facts. Ms. Sims (Client) is a 42-year-old, white female who resides at 596 El Dorado Drive, Woodland, CA. On the evening of June 24, Client went to a concert with three friends. Client drove her 2004 Jeep Wrangler to see a Neil Diamond concert at the Arco Arena, a venue in Sacramento, at approximately 8:00 pm. Client consumed two beers during the concert. After the concert finished, Client and her party went to a nearby bar, The Pelican, where Client had one glass of wine. At approximately 11:00 pm, Client left the bar and drove home via Interstate 5. After taking the Main St. exit off Interstate 5, Client was stopped by a Yolo County police officer and asked for her driver s license and vehicle registration. She complied and then was asked to step out of her car and perform several tasks to determine if she was intoxicated. Client again complied and proceeded to recite the alphabet while standing on one leg. She then, upon request, paced a straight line. When she turned to walk back, the officer drew his gun and shouted Put your hands up! The officer then approached Client and demanded she place her hands behind her head and lie face down on the road. Once Client had done so, the officer patted Client down and removed from her left jacket pocket a pair of barber scissors. After being read her rights, Client was taken into custody at the Yolo County Jail. Client was charged with possession of a concealed dirk or dagger under California Penal Code Section Client was found not to be legally intoxicated. Her blood alcohol level was.03, well below the legal limit of.08. No charges related to driving under the influence were filed. After her arrest, before counsel was retained, client provided the police with a statement about why she was carrying the barber scissors. Though copies of the police record have not yet arrived at the office, Client asserts that she told the police that she carried the scissors for protection from a belligerent ex-boyfriend. She carried them in her left jacket pocket. The scissors, which Client believes were about 8 inches long from end to end, would have protruded from Client s jacket pocket by at least two inches. Client has been released on her recognizance and is awaiting trial. Please evaluate our client s case considering the following materials.

2 California Penal Code Title 2. Control of Deadly Weapons Chapter 1. Firearms Article 2 UNLAWFUL CARRYING AND POSSESSION OF CONCEALED WEAPONS Certain firearms, ammunition, explosive substances, metal plate weapons, etc; manufacture, import, sale, etc. prohibited; exceptions; definitions (a) Any person in this state who carries concealed upon his or her person any dirk or dagger, is guilty of a felony, and upon conviction shall be punishable by imprisonment in a county jail not exceeding one year or in the state prison.

3 THE PEOPLE v. LOUIS RUIZ District Court of Appeal, First District, Division 1, California. 88 Cal.App. 502, Jan. 21, TYLER, P.J. Defendant was prosecuted by information for the crime of felony. It contained two counts. The first charged him with unlawfully carrying upon his person a dirk or dagger, in that at the time and place stated he carried concealed upon his person a dirk; the second count charged that he was carrying concealed upon his person at the same time and place a dagger. It is alleged that the second count is a different statement of the offense described in the first count. It was further alleged that prior to the commission of the offense defendant had suffered two prior convictions, one for the crime of forgery, the other for petit larceny. Defendant was convicted upon the second count and sentenced to the state prison. A motion for a new trial was made and denied. This appeal is from the order and judgment. As grounds for reversal it is claimed that the verdict is unsupported by the evidence and that the court erred in the giving and refusing to give certain instructions to the jury. The evidence shows that defendant was placed in custody on the morning of September 2, 1927, by a police officer employed by the Southern Pacific Company as he was carrying a large bundle wrapped in paper. The bundle contained copper wire which defendant claimed was taken from the dumps at Niles, but which the prosecution contended was obtained from the railroad yards. On the way to police headquarters defendant stopped and removed the bundle of wire from his shoulder, at which time the weapon in question enclosed in a metal sheath was found in his possession. Defendant testified that it was wrapped in the bundle with the wire, the arresting officer testifying that it was drawn from underneath defendant s trousers. It appeared in evidence that the weapon in question was a bayonet with part of it filed off, which could be worn on the body; that it resembled a British bayonet; that there was no such thing as a British dirk; that the weapon resembled a dagger in every particular except that a dagger is more pointed and not quite so heavy. Under the first point raised, namely, that the verdict is unsupported by the evidence, it is claimed that it was not shown just what the real character of the weapon was. The objection is without merit. As above indicated, there was evidence to show that it resembled a dagger. The information charged under the first count that defendant was unlawfully carrying a dirk and in the second the weapon was described as a dagger. It was one and the same offense. 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.) Each of the names given to the weapon properly described it. The weapon itself was in evidence and the jury was in a position to judge its character. Appellant complains that the trial court erred in failing to submit instructions under both counts and that it likewise erred in failing to supply verdicts for each count. What we have already said disposes of this objection. Moreover, after the jury rendered the verdict finding the defendant guilty as charged in count two, the first count was dismissed. Defendant therefore suffered no prejudice. The order and judgment are affirmed.

4 PEOPLE v. FRANK EUGENE FORREST Supreme Court of California, In Bank. 67 Cal.2d 478, Oct. 13, PETERS, JUSTICE. Defendant appeals from a judgment granting him probation after conviction for carrying a concealed dirk or dagger in violation of section of the Penal Code, which makes the offense a felony. The sole question involved is whether the weapon defendant was carrying, an oversized pocketknife, is a dirk or dagger within the meaning of that code section. We have concluded that it was not, and for that reason the judgment must be reversed. The facts are not contradicted. Defendant and several other motorcyclists were stopped by officers of the California Highway Patrol for various equipment violations. Defendant was cited for such a violation. As he opened his jacket to obtain his driver s license, the officer noticed a knife handle sticking out of his right front pants pocket. The knife was an oversized pocketknife with its blades folded into the handle. Both officers testified that defendant s closed jacket covered the knife. He was charged and convicted of carrying a concealed dirk or dagger. The knife involved, as already indicated is constructed like an ordinary pocketknife, but is much larger. It contains two blades, one large and one small. They both fold into the handle like an ordinary pocketknife. The long blade is about six inches in length measured from the tip of the blade to the handguard. It, like many ordinary pocketknife blades, is narrow and pointed at the tip, and only one edge is sharpened. When opened like an ordinary pocketknife, the blades do not lock into place. Near the base of the larger blade and on the handle there are two small handguards. The handle is eight inches in length. Is this oversized knife a dirk or a dagger as these terms are used in section of the Penal Code? That section provides in part: Any person * * * who carries concealed upon his person any dirk or dagger, is guilty of a felony, * * * The statute does not define a dirk or dagger but a consideration of other sections of the code and the available case law indicates that, as a matter of law, a folding knife of the type here involved is not a dirk or dagger. Thus section 3024 of the Penal Code, which increases the minimum punishment for certain felonies when in the commission of the felony or at the time of arrest the felon is armed with a deadly weapon, or has such concealed upon his person, defines the term deadly weapon to include any dirk, dagger * * * any knife having a blade longer than five inches. * * * Obviously, if by the terms dirk and dagger the Legislature has intended to encompass all knives, the further reference to knives would have been unnecessary. Thus, here at least, the Legislature indicated that the terms dirk and dagger did not include all knives. The courts have only applied the section to instruments where the blades and handle are solid, or where the blade locks into place. Thus, in People v. Ruiz, 88 Cal.App. 502, 504, 263 P. 836, 837, it was properly held that a bayonet with part of it filed off was a dagger. The court said: 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

5 used synonymously and consist of any straight stabbing weapon, as a dirk, stiletto, etc. Century Dictionary. They may consist of any weapon fitted primarily for stabbing. The word dagger is a generic term covering the dirk, stiletto, poniard, etc. Standard Dictionary. In People v. Syed Shah, 91 Cal.App.2d 716, 720, 205 P.2d 1081, this language was quoted with approval and the court held that a spring blade knife was a dagger because the blade (People v. Forrest, cont d): locked into place. But even as to such a knife and Legislature has now excluded the spring blade knife from the felony section by adopting in 1957, section 653k to the Penal Code, making it a misdeameanor to carry a concealed switchblade knife, and by its definition of a switchblade knife included spring blade knives. (Stat. 1957, ch. 355, p. 999). Dirks or daggers were originally used in dueling and required blades locked into place to be effective. They are weapons designed primarily for stabbing. (Webster s Third New Internat. Dict. (1961) pp. 570, 642) This knife is not primarily designed for stabbing. Although the large blade in the knife involved here is pointed and to a minor extent tapered, the knife folds like a pocketknife, and the blade of the knife when opened does not lock in place. This severely limits its effectiveness as a stabbing weapon, because if the blade should hit a hard substance such as a bone, there is grave danger that the blade would close upon the hand of the wielder. This distinguishes it from a dirk or dagger. It was not designed primarily for stabbing. Therefore, as a matter of law, it is not a dirk or dagger as these terms are used in the statute. The Attorney General, pointing to the size of the blade, the beveled portion of the front of the blade, and the handguards, urges that this is a question of fact, and that the jury could properly find that the character of the knife is that of a stabbing weapon since it is obviously capable of inflicting death. However, the fact that the weapon can be used as a stabbing weapon and is capable of inflicting death is not determinative. Most knives, or even most pointed scissors, can be used to stab and are capable of inflicting death. Knives are ordinarily designed to be used as weapons or tools or both, and as weapons they may be designed as stabbing or cutting instruments or as both. The fact that the knife is large, part of its blade is beveled, and its handle contains handguards is not determinative where, as here, the absence of a lock on the blade so greatly limits its effectiveness as a stabbing instrument. In other words, when a knife which, like other pocketknives, has many possible uses, some of which are clearly innocent and utilitarian, also has a characteristic which in many situations would substantially limit the effectiveness of its use as a stabbing instrument, it cannot be held to be a weapon primarily designed for stabbing, and thus is not a dagger or dirk. Thus the Legislature has not included folding pocketknives within the meaning of dirk or dagger. No matter how lethal the instrument may be we cannot hold its concealed possession is a crime unless the Legislature has so provided. Chief Justice Traynor succinctly stated the applicable rule in his dissenting opinion in People v. Hallner, 43 Cal.2d 715, 723, 277 P.2d 393, 398, as follows: (W)e cannot create an offense that the Legislature failed to create. We must assume that the Legislature meant the section to be read as it was written, however unwise we

6 may think the Legislature was in not creating an offense that we may think should have been created. We cannot create such an offense by enlarging the statute, or by inserting or deleting words, nor should we do so by giving a false meaning to its words. Such a practice makes it impossible for anyone to rely on the written word of the Legislature and only adds confusion to the already difficult task of drafting statutes. The judgment is reversed.

7 THE PEOPLE v. FELIPE ALEJO FUENTES et al. Court of Appeal, Second District, Division 5, California. 64 Cal.App.3d 953, Dec. 17, ASHBY, J. In an information filed September 26, 1975, defendants Felipe Alejo Fuentes and Mario Hernandez were charged in count I with robbery in violation of Penal Code section 211. Fuentes was charged also in count II with possession of a dirk or dagger in violation of Penal Code section Both defendants waived trial by jury and were tried by the court and each was found guilty of grand theft person in violation of Penal Code section 487, subdivision 2, a lesser included offense than that charged in count I. Fuentes was also found guilty as charged in count II. Hernandez and Fuentes were committed to the California Youth Authority. About 2 a.m., August 2, 1975, Officer Robert L. Portillo who was off duty and on his way home saw Fuentes and Hernandez approach the victim, George Martinez, from behind. Fuentes struck the victim in the back of the head with a long, pointed object with a duct-taped handle. When the victim fell to the pavement, both Fuentes and Hernandez went to their knees beside him. The officer saw Fuentes remove a wristwatch and a wallet from the victim. He also saw Hernandez rummaging through the pockets of the victim. The defendants then began running, and Officer Portillo pursued them. He drew his revolver and shouted, Police. A security guard joined the pursuit and they apprehended the defendants a short distance from the site of the crime. Defendants were searched for weapons. Fuentes had the duct-taped dirk and another copper cylindrical-shaped pointed object in his waistband. The victim s wallet and wristwatch were in Fuentes pockets. Fuentes contends that there was no evidence to show that the dirk was concealed and argues that [t]here is not even a suggestion in the record that the dirk was ever anywhere but in plain sight. The dirk obviously was not in plain sight. This is not a situation where the weapon was carried openly in a sheath or attached to a belt. The dirk was in Fuentes waistband. The mere fact that some portion of the handle may have been visible makes it no less a concealed weapon. A defendant need not be totally successful in concealing a dirk to be guilty of violation of Penal Code section 12020, subdivision (a). (See People v. Hale, 43 Cal.App.3d 353, 356). Hernandez contends that the evidence was insufficient to support his conviction. We as [a]n appellate court must view the evidence in the light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Reilly, 3 Cal.3d 421, 425). In so considering the evidence, we find it to be sufficient. Hernandez was not merely present at the scene of a crime (People v. Durham, 70 Cal.2d 171), he was with Fuentes who struck the victim. Hernandez rummaged through the victim s pockets; Hernandez fled from the scene with Fuentes, attempting to avoid apprehension; and Hernandez was still with Fuentes, who had the victim s property, when they were both apprehended. The judgments are affirmed.

8 PEOPLE v. VICTOR B. Court of Appeal, Fourth District, Division 3, California. 24 Cal.App.4th 521, Mar. 31, WALLIN, J. Victor B. was declared a ward of the court (Welf. & Inst. Code, 602) after being found in possession of a dirk or dagger in violation of Penal Code section 12020, subdivision (a). He contends the trial court erred in admitting his statement to police that he carried the instrument for protection because he had not been advised of his Miranda rights. He also contends that as a matter of law the object was not a dirk or dagger. We affirm. Orange County Sheriff Deputy Jimmy Rubio investigated a complaint that a group of boys were on a bike path throwing rocks at passing vehicles. He saw five male youths on the bike trail whom he recognized as gang members. They were walking quickly away from the street towards a housing tract when Rubio ordered them to stop. In a patdown search of Victor, Rubio found an object in his left rear pocket. The object...consists of 2 three-and-one-half-inch pieces with 1 piece fitting inside the other. The assembled object has finger grips and is five and three-quarter inches long, including a metal point of one and three-eighths inches. Rubio asked Victor why he carried the object. Victor replied, For protection. Victor claims the instrument is a simple automotive repair tool, but presented no evidence regarding its use. Rubio testified the object appeared to have been altered because the metal end which would ordinarily have a hole in it similar to a sewing needle had been sharpened down to a point. * * * Victor also contends the instrument he carried, as a matter of law, was not a dirk or dagger within section 12020, subdivision (a). Although not yet more specifically defined by the Legislature, [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. Forrest (1967) 67 Cal.2d 478, 480) To be classified as a dirk or dagger, an object need not fit the common perception of a knife. Many decidedly un-knife-like objects have satisfied the definition. To be considered a dirk or dagger as a matter of law, the court in Forrest held the object must have been designed for the primary purpose of stabbing. (People v. Forrest, supra, 67 Cal.2d at p. 481.) In Forrest, the defendant used a folding knife with a nonlocking blade. The risk of the blade closing upon the wielder s hand severely limited its effectiveness as a stabbing instrument. Since the knife was not designed primarily for stabbing, it could not be considered a dirk or dagger as a matter of law. (Ibid.) In People v. Cabral (1975) 51 Cal.App.3d 707, the defendant used a bed spring from his

9 prison cell to make a handmade knife or shiv by straightening out the spring and wrapping shoe laces around one end to create a handle. The court concluded the object was a dirk or dagger as a matter of law because it served no useful purpose other than stabbing. (Id. at p. 712.) In In re Robert L. (1980) 112 Cal.App.3d 401, the court held that an ordinary unaltered ice pick concealed upon the person was a dirk or dagger as a matter of law because the Legislature intended to prohibit classic instruments of violence as well as their homemade equivalents. (Id. at p. 404.) The only evidence presented here is that the instrument started as a tire repair tool but had been altered to resemble an ice pick or other tool for stabbing. As a tire tool, its primary purpose was to repair tires. But when it was redesigned to have a sharpened point, the trial court was entitled to conclude its primary purpose was to serve as a stabbing instrument. At that point the object became a dirk or dagger within the meaning of section 12020, subdivision (a) because it no longer had any use other than as a stabbing weapon. Victor contends the object s length precludes its classification as a dirk or dagger. In re Conrad V. (1986) 176 Cal.App.3d 775 held an instrument with a blade one and one-half inches long, curved on both sides, and beveled and sharpened on the front, with no handguards to prevent the hand from slipping onto the blade, was not a dirk or dagger. In dicta the court commented that perhaps another requirement of a dirk or dagger would be a blade of a certain length. Noting that section prohibits possession on school grounds of a dirk, dagger, or knife with a blade longer than three and one-half inches and that section 653k prohibits possession of a switch blade knife with a blade longer than two inches, the court stated...the Legislature has evidenced an intent not to regulate possession of knives with a blade length under two inches despite the fact such knives are capable of causing great bodily injury or being used as deadly weapons as are many other objects which are capable of being concealed on the person. (176 Cal.App.3d at p. 778.) Victor claims that since the actual shaft of the object is less than two inches, it is not a dirk or dagger. The statute itself has no length requirement. Many people carry knives with short blades for utility purposes. Such objects are not designed primarily for stabbing. Recently, People v. Pettway, supra, 233 Cal.App.3d 1067 found a weapon with a wedge-shaped two-and-onequarter-inch blade with a handle and finger grips was a dirk or dagger as a matter of law because it was fitted for no purpose other than stabbing. (Id. at p ) The object here, like that in Pettway, features finger grips and serves no other purpose than stabbing. The judgment is affirmed.