In re R.G.
Filed 5/2/13 In
re R.G. CA2/5
OFFICIAL REPORTS
California Rules of Court, rule
8.1115(a), prohibits courts and parties from citing or relying on opinions not
certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re R.G., a
Person Coming Under the Juvenile Court Law.
B239442
(Los Angeles County
Super. Ct. No. FJ49167)
THE PEOPLE,
Plaintiff and Respondent,
v.
R.G.,
Defendant and Appellant.
APPEAL
from an order of the Superior Court of
County, Cynthia Loo, Juvenile Court Referee. Affirmed.
Arielle
Bases, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Margaret E. Maxwell and
Tasha G. Timbadia, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
The
minor, Richard G., appeals from the juvenile court’s Welfare and Institutions
Code section 602 wardship order. The
juvenile court sustained felony allegations the minor carried a concealed dirk
or dagger in violation of former Penal Code
subdivision (a)(4). (Stats. 2004, ch.
247, § 7, p. 2981.) Section 12020,
subdivision (a)(4) is now recodified at section 21310. (Stats. 2010, ch. 711, §§ 4-5.) The minor was placed home on probation.
The minor
contends there was insufficient evidence
the weapon he possessed was a dirk or dagger.
The minor further asserts unauthorized destruction of the knife denied
him his due process right to review
all legally admissible evidence and to an accurate record on appeal. We affirm the juvenile court order.
II. DISCUSSION
A. There Was Substantial Evidence The Minor’s
Weapon Was A Dirk Or Dagger
1. Standard of review
The minor contends there was
insufficient evidence the knife found on his person was a dirk or dagger within
the meaning of former section 12020, subdivision (a)(4). The standard of review in
the same as that involving adults. (
In re Muhammed C. (2002) 95
Cal.App.4th 1325, 1328.) We view the
evidence in the light most favorable to the adjudication and determine whether
any rational trier of fact could have found the minor guilty beyond a
reasonable doubt. (In re V.V., supra, 51
Cal.4th at p. 1026; People v. Medina (2009)
46 Cal.4th 913, 924-925, fn. 2.) We find substantial evidence supported the juvenile court’s
determination.
2. “Dirk or dagger†defined
A
dirk or dagger is defined in former section 12020, subdivision (c)(24) as
follows: “[A] ‘dirk’ or ‘dagger’ means a
knife or other instrument with or without a handguard that is
weapon that may inflict great bodily injury or death.†(Italics added.) A “switchblade
knife†was defined in former section 653k.
(Stats. 2001, ch. 128, § 1.) A
“switchblade knife†can also be a dirk or dagger. (People
v. Plumlee (2008) 166 Cal.App.4th 935, 940; In re Luke W. (2001) 88 Cal.App.4th 650, 656.) A “switchblade knife†was defined as, “[A]
knife having the appearance of a pocketknife and includes a spring-blade knife,
snap-blade knife, gravity knife or any other similar type knife, the blade or
blades of which are two or more inches in length and which can be released automatically by a flick of a button,
pressure on the handle, flip of the wrist or other mechanical device, or is
released by the weight of the blade or by any type of mechanism
whatsoever.†(Former § 653k, italics
added.) Section
653k has been recodified as sections 16965, 17235 and 21510. (Stats. 2010, ch. 711,
§§ 4-5.)
The categories of knives
expressly prohibited by the language of former section 653k are not
exhaustive. (In re Gilbert R. (2012) 211 Cal.App.4th 514, 518;
211 Cal.App.3d 1389, 1395.) As the Court
of Appeal for the First Appellate District has held, “This language is intended
to cover different types of knives which operate similarly to those expressly
listed.†(People ex rel. Mautner v. Quattrone, supra, 211 Cal.App.3d at p.
1395.)
A knife with a blade that cannot be automatically exposed
is a dirk or dagger only if its blade is locked in an open position. Former section 12020, subdivision (c)(24)
provided: “A
nonlocking folding knife, a folding knife that is not prohibited by Section
653k[, i.e., a folding knife that is not a switchblade], or a pocketknife is
capable of ready use as a stabbing weapon that may inflict great bodily injury
or death only if the blade of the knife is exposed and locked into
position.†And former section 653k
stated, “‘Switchblade knife’ does not
include a knife that opens with one hand utilizing thumb pressure applied
solely to the blade of the knife or a thumb stud attached to the blade,
provided that the knife has a detent or other mechanism that provides
resistance that must be overcome in opening the blade, or that biases the blade
back toward its closed position.â€
defined as follows, “A ‘detent’ is ‘a device (as a catch, dog, or spring-operated
ball) for positioning and holding one mechanical part in relation to another in
a manner such that the device can be released by force applied to one of the
parts.’ (Merriam-Webster m-w.com
Dictionary
November 27, 2012); see also 4 Oxford English Dict. (2d ed. 1989) p. 545
[defining ‘detent’ as ‘[a] stop or catch in a machine which checks or prevents
motion’].)†(In re Gilbert R., supra,
211 Cal.App.4th at p. 518.)
The
key feature distinguishing a dirk or dagger from other types of knives is its
being “capable of ready use as a stabbing†weapon or instrument. (Former § 12020, subd. (c)(24); see
Cal.App.4th at pp. 939-940.) As the
Court of Appeal for the Fourth Appellate District, Division One has
explained: “[T]he prohibition against
carrying a concealed dirk or dagger is designed to give third parties the
opportunity to protect themselves from the risk of a surprise attack by a
person carrying a weapon. (See
. . . [T]he folding or
pocketknife exception is consistent with the statute’s objective because folded
knives are not capable of ready use ‘without a number of intervening
machinations that give the intended victim time to anticipate and/or prevent an
attack.’ (Ibid.)†(
Cal.App.4th 1364, 1371-1372.)
3. Application to the present case
We view the evidence in the light most favorable to the
juvenile court’s findings. The minor was
carrying a knife concealed in his right front pant pocket. The blades were completely closed. The knife was approximately 11 inches long
with a 3-inch blade at each end. The
blades could be opened rapidly to a locked position. There were two ways to rapidly expose the
blades to a fully open and locked position using only one hand. First, thumb screws on either end of the
knife allowed the blades to be rapidly exposed.
Officer Gregorio Rangel testified as to the purpose of a thumb screw on
a knife. Officer Rangel testified a
thumb screw is a screw attached to the blade or the actual body of the knife
that allows a person to rapidly open the weapon to a fully open, locked
position, “[The knife] would open
rapidly if you just put your thumb on the thumb screw . . . and swipe it
forward, and it will lock in the fully outward position.†Officer Rangel further explained: “You would apply pressure downward [on the
thumbscrew] therefore making the blades more easily swing out. It would release pressure on [the
blades].†Second, the minor’s weapon
could be opened with one hand by a flick of a wrist. It functioned like a gravity knife, that is,
the blade could be released automatically.
(See former § 653k.) The minor’s
knife was capable of inflicting serious bodily harm. It was the ability to access the blade
rapidly that distinguished this switch-blade type weapon from other
non-switchblade knives. Officer Rangel
testified, “[This knife is] more dangerous . . . because of the double blades
on both sides both facing opposite directions [and] because [it can] be used
[for] stabbing, dragging, and [has a] serrated edge, and also it can be easily
concealed and retrieved.â€
This constituted substantial evidence the weapon the
minor carried concealed on his person was a dirk or dagger within the meaning
of former section 12020, subdivision (a)(4).
Given the ability to rapidly expose the blades to a fully open and
locked position, it was “capable of ready use as a stabbing†weapon or
instrumentality. Further, it was a
dangerous weapon capable of inflicting great bodily injury or death. (Former § 12020, subd. (c)(24); see
Cal.App.4th at pp. 940-941; In re Luke
W., supra, 88 Cal.App.4th at p. 656; 17 Cal.Jur.3d, Criminal Law: Crimes
Against Administration of Justice and Public Order, § 219.)
B. There Was No Due Process Violation
Officer
Rangel testified he tried to retrieve the knife from evidence on the day of the
adjudication. The knife could not be
found. Officer Rangel was told law
enforcement authorities had disposed of the knife.
The
minor contends “unauthorized†destruction of the knife prior to adjudication
denied him his due process right to
review all legally admissible evidence and to an accurate record on
appeal. The minor argues: “[T]he unauthorized destruction of the knife
prevented the trial court from properly examining the evidence on the crucial
issue in the case. It also denied [the
minor] the opportunity for a fair appellate review of the evidence and is
therefore a denial of due process.†This
issue was not raised in the juvenile court.
There is no evidence the minor made any attempt to secure the knife as
evidence prior to trial. The minor did
not object to the absence of the knife.
He did not request a hearing of any kind. He did not seek a showing the knife had in
fact been destroyed. He made no attempt
to reconstruct the missing exhibit. The
minor’s due process argument has been forfeited. (People
v. Skiles (2011) 51 Cal.4th 1178, 1189; People
v. Williams (1997) 16 Cal.4th 635, 661-662.)
Even
if the issue had not been forfeited, we would not find any error or
constitutional deprivation. First, both
Officer Rangel and the minor had examined the knife. Each testified and described its
characteristics in detail. Further,
three photographs of the weapon were admitted in evidence. The photographs showed the knife in fully
open, completely closed and partially open positions. The purported destruction of the knife did
not prevent the juvenile court from examining evidence on the crucial
issue—whether the knife in question was a dirk or dagger. (See People
v. Sassounian (1986) 182 Cal.App.3d 361, 394; People v. Tierce (1985) 165 Cal.App.3d 256, 263.)
Second,
the minor has a due process right to a record on appeal adequate to permit
meaningful appellate review. (
589; People v. Young (2005) 34
Cal.4th 1149, 1170; People v. Alvarez (1996)
14 Cal.4th 155, 196, fn. 8.) The
appellate record includes exhibits admitted into evidence, refused or
lodged. (Cal. Rules of Court, rule
8.320(e); People v. Osband (1996) 13
Cal.4th 622, 663; People v. Howard (1992)
1 Cal.4th 1132, 1165.) The burden is on
the minor to show the absence of the exhibit on appeal is prejudicial to
him. (People v. Bennett, supra, 45 Cal.4th at p. 589;
1170; People v. Osband, supra, 13
Cal.4th at p. 663; People v. Howard,
supra, 1 Cal.4th at p. 1165.) The
minor cannot make that showing. The
knife was never introduced in evidence in the juvenile court and thereby not
considered by the trier of fact.
Therefore, it is not part of the record on appeal. The absence of evidence before us that was never
introduced in the juvenile court cannot prejudice the minor’s appeal. And we have examined the photographs of the
weapons which were received in evidence.
The minor has not been denied his due process right to an adequate
record on appeal. (See
170-171; People v. Peevy (1998) 17
Cal.4th 1184, 1207-1208, fn. 4.)
III. DISPOSITION
The
wardship order is affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER,
P. J.
We
concur:
KRIEGLER,
J.
O’NEILL,
J.
to the Penal Code unless otherwise noted.
upon his or her person . . . a switchblade knife having a blade two or more
inches in length is guilty of a misdemeanor.
[¶] For the purposes of this
section, ‘switchblade knife’ means a knife having the appearance of a
pocketknife and includes a spring-blade knife, snap-blade knife, gravity knife
or any other similar type knife, the blade or blades of which are two or more
inches in length and which can be released automatically by a flick of a
button, pressure on the handle, flip of the wrist or other mechanical device,
or is released by the weight of the blade or by any type of mechanism
whatsoever. ‘Switchblade knife’ does not include a knife that opens with one
hand utilizing thumb pressure applied solely to the blade of the knife or a
thumb stud attached to the blade, provided that the knife has a detent[[2]]
or other mechanism that provides resistance that must be overcome in opening
the blade, or that biases the blade back toward its closed position.â€
