P. v. Gutierrez

Filed 10/14/08 P. v. Gutierrez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Tulare County. James W. Hollman, Judge.

Phillip J. Cline, District Attorney, Don H. Gallian and William E. Yoshimoto, Assistant District Attorneys, Barbara J. Greaver and John F. Sliney, Deputy District Attorneys, for Plaintiff and Appellant.

No appearance for Defendant and Respondent.

-ooOoo-

Recently in People v. Plumlee (Sep. 10, 2008, F054363) ___ Cal.App.4th ___ (Plumlee), we held that a switchblade knife as defined in Penal Code section 653k^[1]can also be a dirk or dagger concealed on the person as defined in section 12020, even if it is concealed in its closed position. The superior court in this case granted defendant Joseph Gutierrezs motion to set aside a section 12020 charge on the ground that his knife, conceded to be a switchblade prohibited by section 653k, could not be a dirk or dagger as a matter of law. Because this was error, we will reverse the judgment and direct that the charge be reinstated.

FACTUAL AND PROCEDURAL HISTORIES

The district attorney filed a felony complaint on September 5, 2007, charging Gutierrez with one count of carrying a dirk or dagger concealed upon his person in violation of section 12020, subdivision (a)(4). He was arraigned and he pleaded not guilty. At the preliminary hearing, a sheriffs deputy testified that he saw Gutierrez standing on a street in Porterville, appearing to be intoxicated. He had an unsteady gait. He had blurrybloodred bloodshot, watery eyes andand he kinda had mumbly speech. The deputy arrested Gutierrez for public intoxication and searched him. In the right front pocket of Gutierrezs shorts was a butterfly knife that is openedthe handle is split, and its opened exposing the blade, can open it by the flick of the wrist. Gutierrez told the deputy he had found the knife on the ground.

Gutierrez urged the magistrate to dismiss the charge. Citing People ex rel. Mautner v. Quattrone (1989) 211 Cal.App.3d 1389 (Quattrone), he conceded that the butterfly knife was a switchblade, the carrying of which constituted a misdemeanor under section 653k. He argued, however, that a folding knifeincluding a switchbladecannot be a dirk or dagger under section 12020 unless it is carried in the open position. The People argued, to the contrary, that if a folding knife is prohibited by section 653k, it can also be a dirk or dagger under section 12020 even if it is closed. The magistrate rejected Gutierrezs argument and held him to answer the charge.

The district attorney filed an information and Gutierrez filed a motion to set it aside pursuant to section 995. The motion made three arguments: (1) Gutierrezs knife was not capable of ready use as a stabbing weapon, as required by section 12020, because it was closed; (2) the knife was a switchblade as defined in section 653k, and a knife cannot be both a switchblade and a dirk or dagger; and (3) section 12020, subdivision (a)(4), is a general statute covering the same conduct as a specific statutesection 653kwhich has a lesser penalty, and the offense must be charged under the more specific statute. Concluding that the 653k applies to this particular weapon, the court granted the motion.

DISCUSSION

In reviewing a section 995 order to set aside a charge, we disregard the motion proceedings and directly examine the magistrates decision to hold the defendant to answer. (People v. Laiwa (1983) 34 Cal.3d 711, 718.) The magistrate should hold the defendant to answer if there is probable cause to believe the defendant committed the charged offense, and probable cause is shown if a person of ordinary prudence would entertain a strong suspicion of the defendants guilt. (Rideout v. Superior Court (1967) 67 Cal.2d 471, 474.) We do not reweigh the evidence in reviewing the magistrates decision; if there is some evidence to support the information we will not inquire into the sufficiency of that evidence. (Ibid.) As usual, we review the lower courts conclusions of law de novo.

In their arguments to the magistrate, the parties agreed that Gutierrezs butterfly knife was a switchblade within the meaning of section 653k. Section 653k provides:

Every person who carries 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 or other mechanism that provides resistance that must be overcome in opening the blade, or that biases the blade back toward its closed position.

The parties agreement that this definition encompassed Gutierrezs butterfly knife was based on Quattrone, supra, 211 Cal.App.3d 1389, which held that a butterfly knife was within the definition because it opened rapidly with a flip of the wrist. (Id. at p. 1397.) Because no party has challenged this view on appeal, we will not reexamine the issue.^[2]

Section 12020 provides:

(a) Any person in this state who does any of the following is punishable by imprisonment in a county jail not exceeding one year or in the state prison: []  []

(4) Carries concealed upon his or her person any dirk or dagger.

Section 12020, subdivision (c)(24), defines dirk or dagger:

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. A nonlocking folding knife, a folding knife that is not prohibited by Section 653k, 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.

The evidence that Gutierrez was carrying the butterfly knife in a front pocket of his shorts was uncontested, and there is no reason to reject the magistrates apparent conclusion that this meant it was capable of ready use as a stabbing weapon. The only question is whether a knife prohibited by section 653k is incapable of being a dirk or dagger under section 12020 as a matter of law if it is closed.

As we explained in Plumlee, the meaning of the controlling language in section 12020 is clear. (Plumlee, supra, ___ Cal.App.4th ___ [p. 5].) Subdivision (c)(24) of that section states that a folding knife not prohibited by section 653ki.e., a knife that is not a switchbladecan be a dirk or dagger only if the knife is open. This directly implies that a folding knife that is prohibited by section 653ka switchbladecan be a dirk or dagger even when it is closed. The reference to section 653k here would have no point if the Legislature did not intend to treat switchblades differently from other folding knives in exactly this respect. In so holding, we agree with the dictum in In re Luke W. (2001) 88 Cal.App.4th 650, 656, that [s]ection 12020, subdivision (c)(24) does not exempt from the definition of dirk or dagger folding knives prohibited by section 653k.

Further, as in Plumlee, this is not a case in which a more specific statute with a lesser penalty prohibited the same conduct as a more general statute with a greater penalty, necessitating a charge under the more specific statute. (Plumlee, supra, ___ Cal.App.4th ___ [p. 6].) This specific-over-general rule applies only where each element of the more general offense is also an element of the more specific offense, or it appears from the entire context that a violation of the more specific statute will necessarily or commonly result in a violation of the more general statue. (People v. Walker(2002) 29 Cal.4th 577, 585.) The dirk-or-dagger offense has an element not included in the switchblade offense: A defendant must conceal a dirk or dagger on his or her person to violate section 12020, but need only carry a switchblade to violate section 653k. As a result, a violation of section 653k can often fail to result in a violation of section 12020, subdivision (a)(4). The switchblade offense is therefore not more specific than the dirk-or-dagger offense for purposes of the specific-over-general rule.

From all we have said, it follows that the charge must be reinstated. The magistrate was presented with some evidence (Rideout v. Superior Court, supra, 67 Cal.2d at p. 474) that Gutierrez carried concealed on his person a knife capable of ready use as a stabbing weapon that may inflict great bodily injury or death ( 12020, subd. (c)(24)). The facts that the knife was closed and that Gutierrezs conduct could have been charged as a violation of section 653k did not preclude the prosecution from charging it as a violation of section 12020, subdivision (a)(4).

DISPOSITION

The order granting Gutierrezs section 995 motion and setting aside the information is reversed. The superior court is directed to reinstate the information.

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^*Before Wiseman, Acting P.J., Levy, J., and Kane, J.

^[1]Subsequent statutory references are to the Penal Code unless otherwise noted.

^[2]Gutierrez did not file a brief in this appeal. He did not respond to repeated efforts to contact him to provide appointed counsel.