PEOPLE v. GONZALES

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Court of Appeal, Third District, California.

The PEOPLE, Plaintiff and Respondent, v. Rudy S. GONZALES, Defendant and Appellant.

Crim. 13475.

Decided: August 29, 1986

Jeanne M. Lynch, San Francisco, under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Roger E. Venturi and Willard F. Jones, Deputy Attys. Gen., for plaintiff and respondent.

The defendant was convicted and sentenced to prison for the crime of carrying a concealed dirk or dagger in violation of Penal Code section 12020, subdivision (a) 1 pursuant to a CALJIC No. 12.36 instruction that defines “dirk or dagger” as “any straight weapon, designed and fitted primarily for stabbing.”   He was also sentenced to a consecutive term for an unrelated auto theft following a plea of guilty to that offense.   We will reverse the judgment predicated upon Penal Code section 12020, subdivision (a) because the instruction incorrectly defines “dirk” or “dagger” resulting in a conviction for a crime the defendant did not commit.   As to the auto theft, we will affirm the conviction.

DISCUSSION

In 1983 the defendant was arrested at the Yolo County fairgrounds for carrying a round pointed object in a sheath attached to his waistband, apparently concealed by his clothing.   The object originated as a bolt seven inches long and one-fourth inch in diameter.   One end had been honed to a sharp point by the defendant.   The unsharpened end was wrapped with electrician's tape to act as a grip.   This was the implement found to be a dirk or dagger.   That conclusion followed upon an incorrect definition of dirk or dagger given the jury.

A.

Penal Code section 12020, subdivision (a), makes it a crime to “carr[y] concealed upon [the] person ․ any dirk or dagger․”   This provision stems from an early statute which made the mere carrying or possession of a dirk or dagger a felony.  (Stats. 1917, ch. 145, p. 221.)   The element of concealment was added as part of the concealed weapons law of 1953.  (Stats. 1953, ch. 36, p. 653.)   This provision must be contrasted with the separate misdemeanor offense, which, since 1872, has been contained in the Penal Code, of “having upon [one's person] any deadly weapon with intent to assault another․” (Pen.Code, § 467;  emphasis added;  see People v. Moran (1973) 33 Cal.App.3d 724, 730, 109 Cal.Rptr. 287.)   The defendant was not charged with this latter offense.

Rather, incident to the Penal Code section 12020, subdivision (a) charge, the defendant was convicted by a jury pursuant to a CALJIC instruction (No. 12.36) that informed the jury that “The words ‘dirk’ and ‘dagger’ are used synonymously and both refer to any straight weapon, designed and fitted primarily for stabbing.”   Defendant sought and was denied an instruction which informed the jury that the device he carried was an awl and therefore not a dirk or dagger.  (See People v. La Grande (1979) 98 Cal.App.3d 871, 873, 159 Cal.Rptr. 709.)   By this means the defendant put in issue the statutory meaning of dirk or dagger.

B.

 The words dirk and dagger have historically been used to apply to particular kinds of objects, i.e., certain kinds of knives, small enough to be concealed upon the person, which are designed to be used as weapons.  (See e.g. The Encyclopaedia Britannica (11th ed. 1910) Vol. 7, p. 729;  see also People v. Forrest (1967) 67 Cal.2d 478, 62 Cal.Rptr. 766, 432 P.2d 374.)   In this way the words have come by normative (and ostensive) means to uniquely identify these objects and hence to collectively define them.  (Cf. CSAA v. Godinez (1986) 177 Cal.App.3d 855, 859, fn. 1, 223 Cal.Rptr. 246.)   The objects thus defined vary greatly in size and shape but all share the property of being knives designed for use as weapons.   It is against this background of usage that the concealed weapons provisions of Penal Code section 12020, subdivision (a) must be read.

CALJIC No. 12.36 has departed from these usages and thus misdefined the words of the statute.   It has abstracted the principal function for which these collectively named objects were designed and applied it as their sole defining property.   In so doing, the instruction severed the historical and normative connections between the terms and the things to which they apply and thereby destroyed the unique historical and normative applications by which they gained their meanings.   The nature of this profound semantic error has been succinctly put by Stanley Cavell:  one can “use a screw-driver as a dagger;  that won't make a screw-driver a dagger.”  (Cavell, The Claim of Reason (1979) What a Thing is (Called), p. 71.)

The CALJIC test, of course, can be used to exclude some devices as dirks and daggers since it is a defining property of those knives which are dirks or daggers.   That occurred in People v. Forrest, supra, 67 Cal.2d 478, 62 Cal.Rptr. 766, 432 P.2d 374 (pocketknife);  Bills v. Sup. Ct. (1978) 86 Cal.App.3d 855, 150 Cal.Rptr. 582 (scissors) and People v. La Grande, supra, 98 Cal.App.3d 871, 159 Cal.Rptr. 709 (awl).   However, the CALJIC instruction embraces objects which need not be knives, let alone dirks or daggers.   The error most likely came by way of a misreading of People v. Forrest, supra.   It got the right case but the wrong definition.

Forrest defines a dirk or dagger inter alia as a knife which is a weapon primarily used for stabbing.   It says:  “ ‘A dagger has been defined as any straight knife to be worn on the person which is capable of inflicting death․   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.’ ” (67 Cal.2d p. 480, 62 Cal.Rptr. 766, 432 P.2d 374;  emphasis added, quoting from People v. Ruiz (1928) 88 Cal.App. 502, 504, 263 P. 836.)   The context of this quotation is a historical reference to objects which were called dirks or daggers.   There is nothing here to suggest that something which is not a knife can be a dirk or dagger.   On this point Forrest says that “[d]irks or daggers were originally used in dueling and required blades locked into place to be effective.   They are weapons designed primarily for stabbing.”  (Ibid.;  emphasis added.)  “They” refers to objects which have blades which are designed for stabbing.  Forrest was followed in People v. Bain (1971) 5 Cal.3d 839, 97 Cal.Rptr. 684, 489 P.2d 564.

The language “designed primarily for stabbing” in Forrest serves to single out one distinguishing property of the kind of implement which is a dirk or dagger.   CALJIC No. 12.36 seized upon this distinguishing property as the sole defining property.   A number of court of appeal cases have followed this unfortunate lead.  (See People v. Cabral (1975) 51 Cal.App.3d 707, 712, 124 Cal.Rptr. 418 (home made ice pick);  In re Robert L. (1980) 112 Cal.App.3d 401, 169 Cal.Rptr. 354 (ice pick);  People v. Ferguson (1970) 7 Cal.App.3d 13, 19, 86 Cal.Rptr. 383 (ordinary kitchen knife having “the characteristics of a stabbing and cutting weapon” and “capable of inflicting a fatal wound.”   The recent case of In re Conrad V. (1986) 176 Cal.App.3d 775, 222 Cal.Rptr. 552 redresses these errors.

 The object carried by the defendant was not a dirk or dagger.   While arguably a weapon which the defendant designed for stabbing, it was not a knife because it did not have a blade.   It is round, having been made out of a bolt.   That the defendant might have been found guilty of some other crime (e.g. the deadly weapon offense defined in Pen. Code, § 467) cannot justify his conviction for a crime he did not commit.

The judgment of conviction for violation of Penal Code section 12020, subdivision (a) is reversed.   The judgment of conviction for the auto theft is affirmed.   The case is remanded to the trial court for resentencing.

I dissent.

I am satisfied that the trial court did not err in its conclusion that it was a question of fact whether defendant's homemade instrument was a dirk or dagger.   In this instance, the implement originated as a seven-inch common bolt, one-quarter inch in diameter, which defendant honed to a sharp point at one end and the other blunt end wrapped with electrician's tape to form a grip.   A woven thong, nine inches in length, had been strung through the handle part of the bolt.   The instrument was fitted into a six-inch sheath worn by the defendant and when sheathed, the sharp point protruded about one-half inch through a small hole in the bottom of the sheath.

At trial defendant did not request and the trial court did not give an instruction which he here claims should have informed the jury that a dirk or dagger must have been designed primarily as a weapon and fitted primarily for stabbing.   I am satisfied that the argument asserted by the defendant and apparently supported in People v. La Grande (1979) 98 Cal.App.3d 871, 873, 159 Cal.Rptr. 709, is only appropriate in instances where unaltered, commercially manufactured instruments are claimed to be or not to be a dirk or dagger as a matter of law.   Appropriately employed, that approach would insure that sharp-pointed instruments which can be used for stabbing, but which were certifiably designed by the manufacturer for lawful purposes, will not be considered dirks or daggers for purposes of Penal Code section 12020, subdivision (a).   In this instance, the trial court concluded, and I believe correctly, that it was a question of fact whether defendant's homemade all-around tool was a dirk or dagger.   In an instance such as this involving a commonly manufactured, harmless implement, a bolt, the character of which has been so materially changed after the product's manufacture, that its original and intended use has been eliminated to that of a potentially dangerous instrument, a trial court could find that the instrument was designed and could be used for one epurpose only, to stab, and could have held as a matter of law the altered implement was a dirk or dagger within the meaning of section 12020, subdivision (a).

The court in People v. Cabral (1975) 51 Cal.App.3d 707, 712, 124 Cal.Rptr. 418, made such a finding on facts singularly similar to those here presented.   In Cabral, the court concluded that a sharpened and partially straightened piece of metal resembling a dead spring found in the possession of a prison inmate “was designed and could be used for one purpose only—to stab.”   (Ibid.)  I view the import of Cabral to be whether an implement, the character of which has been radically changed after its manufacture from harmless to potentially dangerous, and where its intended purpose has been totally thwarted by the alteration, constitutes a dirk or dagger is a question of fact for the jury;  unless of course the court can conclude that the implement as altered was useful only as a stabbing weapon;  in the latter case, it would constitute a dirk or dagger as a matter of law.

In this instance from the evidence, since the court apparently did not reasonably conclude the implement was exclusively a weapon for stabbing and so instructed the jury, it properly left to the jury the question whether the object concealed by defendant was a straight weapon “designed primarily for stabbing.”  (People v. Forrest (1967) 67 Cal.2d 478, 480, 62 Cal.Rptr. 766, 432 P.2d 374.)   I fail to find that to have been error and would further conclude that the jury had sufficient substantial evidence upon which to find that the instrument did qualify as such a weapon.

I fail to find in any decisional authority as a basis of support for the majority statement that to constitute a dirk or dagger that the implements “all share the property of being knives designed for use as weapons.”  (Emphasis added.)

It appears clear to me that whether an implement is a dirk or dagger is a question of fact and does not require such a narrow finding that it be a knife.  (People v. Bain (1971) 5 Cal.3d 839, 850–851, 97 Cal.Rptr. 684, 489 P.2d 564.)  “ ‘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.)’ ”   (Id., at pp. 851, 853, 97 Cal.Rptr. 684, 489 P.2d 564.)

General language usage definition discloses a stiletto be “a pointed instrument for piercing holes ․” while a poniard is described as “a dagger with a ․ slender triangular or square blade.”  (Webster's Third New Internat. Dict. (1961) pp. 1763, 2243.)

In the present case, I cannot say as a matter of law the instrument found on the person of defendant was not a dirk or dagger or a weapon fitted primarily for stabbing simply because it was not sharpened as a bladed knife.   As in Bain, it was a question of fact and properly left to the jury for its consideration.   I view the physical evidence as substantial and sufficient to uphold the jury's findings.   The sharpened seven-inch long, one-quarter inch in diameter, bolt could be found to be a stiletto or poniard, thus a dirk or dagger.

I would affirm the judgment in its entirety.

FOOTNOTES

1.   All unspecified statutory references are to the Penal Code.

BLEASE, Associate Justice.

RODDA, J.*, concur.