M.
Filed 5/15/13 In re Joshua M. CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
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Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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as specified by rule 8.1115(b). This
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purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE
OF CALIFORNIA
FIFTH APPELLATE DISTRICT
>
In re JOSHUA M., a Person Coming Under The Juvenile Court Law. | |
THE PEOPLE, Plaintiff and Respondent, v. JOSHUA M., Defendant and Appellant. | F065178 (Super. Ct. No. JJD065905) |
THE COURT
APPEAL from
a judgment of the Superior Court of
County. Hugo J. Loza, Commissioner.
Arthur L.
Bowie, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Senior Assistant Attorney General, Stephen G. Herndon and
Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
On December
27, 2011, a petition was filed pursuant to Welfare and Institutions Code
section 602 alleging 14-year-old appellant, Joshua M., feloniously
12020, subd. (a)(4)).
name="_ftnref2" title="">[1] At the conclusion of a contested jurisdiction
hearing on April 25, 2012, the juvenile court found the allegation true beyond
a reasonable doubt. At the
juvenile court granted Joshua’s motion to treat the felony adjudication as a
misdemeanor pursuant to section 17, subdivision (b). We reject Joshua’s contention on appeal that
there was insufficient evidence before the juvenile court that he possessed a
dirk or dagger.
FACTS AND PROCEEDINGS
On December
22, 2011, at 5:30 p.m., Detective Hector Rodriguez of the Tulare County
Sheriff’s Department was working with the gang violence suppression unit and
contacted Joshua at the corner of Avenue 404 and Muller Road in Cutler. Joshua was with three other people. Rodriguez asked the group if anyone had any
weapons. Joshua replied that he had a
sharp screwdriver in one of his pockets.
While
conducting a pat-down search of Joshua, Rodriguez found what initially appeared
to be a screwdriver. Upon closer
inspection, Rodriguez determined the object was a current tester, five inches
long with a clear yellow handle that was partly broken. The current tester was received into evidence
as People’s exhibit no. 1.
Rodriguez testified that a current
tester is usually connected by a wire to something else that registers whether
or not there is an electrical current.
This object had no wire, Joshua had no wires on his person, and there
was no other device attached to the object.
When Rodriguez asked Joshua if he was doing electrical work, Joshua
replied that he was not. Joshua told
Rodriguez that he was a Northern gang associate and Southern gang members were
his enemies. Joshua later admitted that
he needed the tester for protection from Southern gang members.
Rodriguez explained that the object
found on Joshua could be used as a stabbing weapon, and a month or two earlier,
he had investigated a stabbing where a similar type of weapon was used. The tip of the instrument in that crime came
within an inch of the victim’s lung. Had
the instrument hit the victim’s lung, it would have caused great bodily
injury. In Rodriguez’s opinion, the
object he found on Joshua was a stabbing weapon capable of causing great bodily
injury.
Joshua’s mother testified that she
had a loose headlight on her Chevy Tahoe and Joshua would fix it when it went
out. On December 22, 2011, Joshua’s
grandmother brought out a toolbox and Joshua started fixing the headlight to
his mother’s vehicle. When shown the
object taken from Joshua, his mother said she had seen it before because it was
an electricity tester Joshua had used.
The tester had an attached cable.
The last time Joshua’s mother saw the tester, it was not broken.
Joshua’s grandmother testified that
she gave Joshua a box of tools to fix the headlight to his mother’s vehicle and
Joshua had used a current tester during the repair. The grandmother testified that the wire was
missing from the tester but Joshua attached a cord to it in order to use it.
Joshua testified that he and his mother
went to his grandmother’s house to fix the headlight to his mother’s
vehicle. A wire was disconnected from
the headlight so Joshua used the electric tester. The tester is connected to a wire and light
bulb. Joshua had all of those items, but
placed the tester in his pocket and the other items back into the tool
box. Joshua did not plan to keep the
tester in his pocket and forgot to put it back into the tool box. Joshua did not believe the tester could be
used for protection.
Joshua told the detective he was a
Northern associate because he was stopped with friends who were Northerners and
felt he had no other choice than to state that gang as his affiliation. Joshua was not afraid of Southern gang
members. Joshua had other friends who
were Northerners and who were unaffiliated with any gang.
At the conclusion of the
prosecution’s case, defense counsel made a motion pursuant to Welfare and
Institutions Code section 701.1 to dismiss the allegation, arguing there was
insufficient evidence that the tester could be used to commit great bodily
injury, or any type of injury. Defense
counsel also argued that the object was not much different from a fountain pen
or a ballpoint pen and therefore could not qualify as a dirk or dagger. Defense counsel stated she was not suggesting
that “the [c]ourt stab itself with the tester†because “[i]t would hurt, but I
don’t think you would die from it or even have to have stitches.â€
The court described its
observations of the tester, which was in evidence. The court explained that although the tester
was not an ice pick or a screwdriver, “it certainly has a very, very sharp
point.†The metal portion of the point
was about three-quarters of an inch held within a piece of plastic that was not
sharp. The court found the tester was
sharp enough to stab someone because it was “almost like a spear.†Although the piece of metal was small, it was
very sharp, much sharper than a screwdriver.
The combination of the metal tip
and plastic could create a potential wound of approximately two and a half
inches. At first, the court noted the
device was two and a half inches long, but later found it was three inches
long. The court stated that the device
was more akin to an ice pick. The only
difference the court found between an ice pick and the tester was that the
metal tip of the tester was not as long.
The court concluded the tester could be used as a stabbing instrument
and “could cause some pretty serious damage.â€
The court denied defense counsel’s motion to dismiss the
allegation.
In finding the allegation true,
the juvenile court noted that the tester was broken and Joshua was walking
around with it concealed in his pocket.
The court found that Joshua’s admission of gang association was relevant
because those involved in gangs are involved in fights and circumstances where
they attack or are attacked by others and therefore carry weapons. The court concluded that the tester qualified
as a dirk or dagger that could be used to stick into someone’s body, especially
where there is soft tissue like a stomach or an eye, and it was capable of
causing a significant amount of damage.
DISCUSSION
Appellant argues that there was
insufficient evidence as a matter of law that the electrical tester was a dirk
or dagger as defined by section 12020, subdivision (a)(4). Joshua argues that he was merely carrying a
current tester he recently used to repair his mother’s vehicle and that it was
not designed as, nor was it, the type of tool that could be used as a dirk or
dagger. We disagree.
In assessing a claim of
insufficiency of evidence, the reviewing court’s task is to review the entire
record in the light most favorable to the judgment to determine whether it
contains substantial evidence -- evidence that is reasonable, credible, and of
solid value such that a reasonable trier of fact could find the defendant
guilty beyond a reasonable doubt. The
standard of review is the same in cases in which the prosecution relies mainly
on circumstantial evidence. It is the jury, not the appellate court,
which must be convinced of a defendant’s guilt beyond a reasonable doubt. If the circumstances reasonably justify the
trier of fact’s findings, the opinion of the reviewing court that the circumstances
might also reasonably be reconciled with a contrary finding does not warrant a
reversal of the judgment. (
(1979) 443 U.S. 307, 317-320 and People v.
Johnson (1980) 26 Cal.3d 557, 578.)
In reviewing a challenge to the
sufficiency of the evidence, appellate courts do not determine the facts. We examine the record as a whole in the light
most favorable to the judgment and presume the existence of every fact the
trier of fact could reasonably deduce from the evidence in support of the
judgment. (People v. Guerra (2006)
37 Cal.4th 1067, 1129 [disapproved on another ground in People v. Rundle (2008) 43 Cal.4th 76, 151]; People v. Kraft (2000) 23
Cal.4th 978, 1053.) Unless the testimony
of a single witness is physically impossible or inherently improbable, it is
sufficient for a conviction. (Evid.
Code, § 411; People v.
The statutory definition of a dirk
or dagger is “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.†(§ 12020, subd. (c)(24);
Rubalcava (2000) 23 Cal.4th 322, 330
(Rubalcava).) In so defining a dirk or dagger, the Legislature
recognized that its revised definition from an earlier version of the statute
could potentially criminalize the innocent “carrying of legal instruments such
as steak knives, scissors and metal knitting needles.†The Legislature, however, concluded that
there was no need to carry such items concealed in public. A violation of section 12020 is a general
intent crime and does not require a specific intent for unlawful use. (Rubalcava,
at p. 330.)
The tester was either dismantled or
broken and no longer contained wires and apparently could no longer be used for
its intended purpose as a testing tool.
Joshua concealed the tester in a pocket.
Joshua told Detective Rodriguez that he was not doing electrical
work. The detective testified that a
similar device had been used in a prior assault. This is evidence that such a device could be
used to stab a person.
The juvenile court described the
tester as being as sharp as an ice pick with a short metal tip of
three-quarters of an inch and a total length of about three inches. The court further described the tester as
almost like a spear and sharper than a screwdriver. The court found that the tester could be used
to cause great bodily injury to eyes or other soft tissue. There was substantial evidence before the
juvenile court that the electrical tester met the statutory definition of a
dirk or dagger, a device that was concealed and capable of inflicting great
bodily injury.
title="">[3]
DISPOSITION
The orders of the juvenile court are
affirmed.
name="_ftn1" title="">* Before
Wiseman, Acting P.J., Kane, J., and Detjen, J.
name="_ftn2" title="">[1] Unless
otherwise noted, all statutory references are to the Penal Code. Section 12020, subdivision (a)(4) was
reenacted by the Legislature without substantive change as section 21310, with
an operative date of January 1, 2012.
