In re Marvin D.
Filed 7/23/12 In re Marvin D. CA2/7
NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS
California
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
opinion has not been certified for publication or ordered published for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 SEVEN
In
re MARVIN D., a Person Coming Under the Juvenile Court Law.
B234940
(Los Angeles County
Super. Ct. No. FJ47065)
THE
PEOPLE,
Plaintiff and Respondent,
v.
MARVIN
D.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
County, Robert J. Totten, Juvenile Court Referee. Affirmed as modified.
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, Senior Assistant Attorney
General, Michael R. Johnsen and William H. Shin, Deputy Attorneys General,
for Plaintiff and Respondent.
Marvin D. appeals from the juvenile court’s order
declaring him a ward of the court and placing him in a
sustained a petition alleging he had possessed a
concealed dirk or dagger in violation of former Penal Code section 12020,
subdivision (a)(4).
name="_ftnref1" title="">[1] Marvin contends there was insufficient
evidence he knew he possessed a dirk or dagger capable of ready use as a
stabbing weapon. We modify the
disposition order to strike the requirement that Marvin submit a DNA sample and
otherwise affirm.
Los Angeles
Police Officer Shawn Graber approached Marvin, then 17 years old, and five
other young men in the late afternoon of June 23, 2011 because the youths were
blocking the sidewalk, forcing pedestrians to walk around them. As he neared the group, Graber observed the
handle of a screwdriver protruding about two inches from Marvin’s right front
pocket. Graber asked Marvin for the
screwdriver; Marvin handed it to him.
Graber then noticed the tool had a pointed tip, permitting it to be used
as a weapon. Graber arrested Marvin for possession of a concealed dirk
or dagger. At the time of this incident
Marvin was absent without leave from a prior placement at Phoenix House, and
there was an outstanding warrant for his arrest.
The People filed a petition
pursuant to Welfare and Institutions Code section 602 alleging Marvin had
possessed a concealed dirk or dagger in violation of former section 12020,
subdivision (a)(4). Marvin denied the allegation.
At the
jurisdiction hearing Marvin testified he had been fixing his skateboard with the
screwdriver at a friend’s house. The two
young men then left so Marvin could get a haircut. Marvin was waiting on the street to be let
into the barbershop when he was approached by Officer Garber. Marvin explained he had forgotten to leave
the screwdriver with his skateboard at his friend’s house.
Several
conflicting descriptions of the screwdriver were given at the hearing. Marvin maintained, although the screwdriver
tip was not straight, it was not sharpened to a point when he had it. Officer Graber testified the tool had been
sharpened to a point. After examining
the screwdriver, the court observed the device looked as though it may have
been sharpened, “but either way it’s still a device that is pointed” and it
seemed “the only purpose for it is to stab,” rejecting the assertion it could
be used to fix a skateboard.
name="_ftnref2" title="">[2]
The court
sustained the petition and declared the offense a misdemeanor. Marvin was declared a ward of the court and
ordered to a camp-community placement program for a period of six months with 114
days of predisposition credit.
130 hours of community service and to provide a DNA sample (§ 296, subd.
(a)(1)).
1.
Standard of Review
The same standard governs review
of the sufficiency of evidence in juvenile
cases as in adult criminal cases: “[W]e review the
whole record to determine whether any
rational trier of fact could have found the essential elements of the crime or
special circumstances beyond a reasonable doubt. [Citation.]
The record must disclose substantial evidence to support the
verdict—i.e., 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. [Citation.] In applying this test, we review the evidence
in the light most favorable to the prosecution and presume in support of the
judgment the existence of every fact the jury could reasonably have deduced
from the evidence. [Citation.] ‘Conflicts and even testimony [that] is
subject to justifiable suspicion do not justify the reversal of a judgment, for
it is the exclusive province of the trial judge or jury to determine the
credibility of a witness and the truth or falsity of the facts upon which a
determination depends. [Citation.] We resolve neither credibility issues nor
evidentiary conflicts; we look for substantial evidence. [Citation.]’
[Citation.] A reversal for
insufficient evidence ‘is unwarranted unless it appears “that upon no
hypothesis whatever is there sufficient substantial evidence to support”’ the
jury’s verdict.” (People v. Zamudio (2008) 43 Cal.4th 327, 357; see
Cal.App.4th 537, 540.)
2.
Former section 12020, subdivision
(a)(4), (now section 21310), prohibits any person from carrying upon his or her
person a concealed dirk or dagger.
name="_ftnref4" title="">[4] “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.” (§ 16470.)
To establish a substantive violation, the People must prove the
defendant “knowingly and intentionally” carried the concealed instrument and
knew the instrument was capable of being used “as a stabbing weapon.” (People v. Rubalcava (2000) 23 Cal.4th
322, 332 (Rubalcava).)
Carrying a concealed dirk or
dagger is a general intent crime. (Rubalcava, supra, 23 Cal.4th at p.
328.) An actual intent to use the
instrument as a weapon is not an element of the offense. (Id. at pp. 333-334.)
Nonetheless, recognizing the statute could criminalize “traditionally
lawful conduct,” the Rubalcava Court
held “a defendant must still have the requisite guilty mind: that is, the defendant must knowingly and
intentionally carry concealed upon his or her person an instrument ‘that is
capable of ready use as a stabbing weapon.’
[Citation.] A defendant who does
not know that he is carrying the weapon or that the concealed instrument may be
used as a stabbing weapon is therefore not guilty of violating [former] section
12020.” (Id.
at p. 332.)
3.
Substantial Evidence Supports the
Juvenile Court’s Finding That Marvin Violated Former Section 12020, Subdivision
(
Marvin
contends the juvenile court’s finding he violated former section 12020, subdivision
(a)(4), is not supported by substantial evidence because the People failed to
prove he knew the screwdriver was capable of being used as a stabbing weapon.
Although the evidence on this point is far from overwhelming, when viewed in the light most
favorable to the findings of the juvenile court, as we must, it is sufficient
to uphold the court’s order sustaining the petition.
As discussed, Marvin asserted
the tip of the screwdriver had been broken, resulting in its sharp point. But Officer Garber testified it appeared to
him to have been sharpened. After
hearing the evidence and examining the tool itself, the court concluded the
instrument may have been deliberately sharpened, but in any event could be used
as a stabbing weapon. Of equal import,
the court rejected Marvin’s claim the altered screwdriver could be used to fix
a skateboard: “I think he did have a
device that has been modified so it seems the only purpose for it is to
stab.” Given these findings, which are
reasonably based on the evidence, it was also reasonable for the court to
conclude Marvin in fact knew the screwdriver could be used as a stabbing
weapon. (See In re David V. (2010) 48 Cal.4th 23, 28 [Supreme Court has long
recognized that former § 12020 was enacted “not only ‘to outlaw the classic
instruments of violence and their homemade equivalents,’ but also ‘to outlaw
possession of the sometimes-useful object when the attendant circumstances,
including the time, place, destination of the possessor, the alteration of the
object from standard form, and other relevant facts indicated that the
possessor would use the object for a dangerous, not harmless purpose’”]; see
also CALCRIM 2501 [when deciding whether defendant knew the object could be
used as a stabbing weapon, jury should consider all surrounding circumstances,
including any alteration of the object from its standard form].)
Marvin’s additional contention
former section 12020, subdivision (a)(4), criminalizes innocent conduct and
impermissibly allows arbitrary and discriminatory enforcement was specifically
rejected in Rubalcava, supra, 23
Cal.4th 322. The Court examined the
legislative history of the amendments to the definition of “dirk or dagger” in
former section 12020, subdivision (c)(24), and explained, “[T]he Legislature
recognized that the new definition may criminalize the ‘innocent’ carrying of
legal instruments such as steak knives, scissors and metal knitting needles,
but concluded ‘there is no need to carry such items concealed in public.’” (Rubalcava,
at p. 330.) After finding the statute was neither
unconstitutionally vague nor overbroad, the Court expressed concern it may
criminalize seemingly innocent conduct.
Nevertheless, the Court emphasized “‘[t]he role of the judiciary is not
to rewrite legislation to satisfy the court’s, rather than the Legislature’s,
sense of balance and order.’
[Citation.] We must therefore
leave it to the Legislature to reconsider the wisdom of its statutory
enactments.” (Id. at p. 333.)
4. The
Juvenile Court Erred in Ordering a DNA Sample
Section 296, subdivision (a)(1), requires
“[a]ny person, including any juvenile, who is convicted of . . . any felony
offense . . . or any juvenile who is adjudicated under Section 602 of the
Welfare and Institutions Code for committing any felony offense” to submit
biological samples for law enforcement identification analysis. Carrying a
concealed dirk or dagger, the offense here, may be either a misdemeanor or a
felony. Pursuant to Welfare and
Institutions Code section 702 the juvenile court determined the offense to be a
misdemeanor. Accordingly, as Marvin
argues and the People acknowledge, the court was not authorized to order Marvin
to provide a DNA sample. That portion of
the disposition order must be stricken.
(See In re Ricky H.
(1981) 30 Cal.3d 176, 191 [unauthorized
sentence or dispositional order properly corrected on appeal]; People v. Scott (1994) 9 Cal.4th 331, 354.)
The portion of the
disposition order requiring submission of a DNA sample is stricken. In all other respects the juvenile court’s
order is affirmed.
PERLUSS, P. J.
We concur:
ZELON, J.
JACKSON, J.
reorganization of this portion of the Penal Code, effective January 1,
2012 former section 12020, subdivision (a)(4), was repealed and recodified
without substantive change as section 21310.
(See Stats. 2010, ch. 711, § 6.)
Statutory references
are to the Penal Code unless otherwise indicated.
had “difficulty seeing it [(the alteration of the screwdriver as)] being
intentional. It looks like it could have
been just broken.”
