PEOPLE v. RUBALCAVA (1999)

A jury convicted Ernesto Arnoldo Rubalcava of carrying a concealed dirk or dagger under Penal Code 1 section 12020, subdivision (a) and found that he had committed this offense while he was released from custody on bail on his own recognizance.   In addition, Rubalcava admitted suffering a prison prior within the meaning of section 667.5, subdivision (b).   He was sentenced to a total of three years eight months imprisonment and ordered to pay a state restitution fund fine of $700, pursuant to sections 1202.4 subdivision (b) and 2085.5.   A second $700 restitution fine pursuant to section 1202.45 was assessed and suspended unless parole was later revoked.

Rubalcava appeals, contending that (1) the court erred in denying his motion to dismiss under section 995 because as a matter of law, the knife recovered from him was not a dirk or dagger under section 12020, subdivision (a);  (2) the judgment must be reversed because the court did not instruct the jury sua sponte with CALJIC No. 12.42;  (3) the court allowed improper rebuttal evidence which the prosecution should have presented in its case-in-chief;  (4) the court erred in allowing opinion evidence from a police officer during rebuttal;  and (5) the court abused its sentencing discretion in imposing the two $700 restitution fines.   We find Rubalcava's contentions to be unavailing, and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On July 29, 1997, San Diego Police Officer Roland Elkins was searching for Rubalcava because a bench warrant had been issued for his arrest.   Elkins saw Rubalcava on a street corner and flagged down uniformed police officer Curtis Hale, who followed Elkins back to where Rubalcava was standing.   Elkins parked, approached Rubalcava, and told him to put his hands on Hale's patrol car, which he did.   Elkins asked Rubalcava if he had any weapons, and Rubalcava said he had a knife and motioned down with his head to his right side.   Elkins raised Rubalcava's shirttail, which was hanging untucked, and saw the handle of a knife in the right front coin-pocket of his pants.   Elkins removed the knife, which was approximately six and one-sixteenth inches in overall length.   The handle was about three and one-eighth inches long, leaving a blade of about two and three-fourths inches;  the tip of the blade was chipped.

Defense

Rubalcava testified that the knife recovered from him was a letter opener, which he was inadvertently carrying along with some autobody repair tools in an old sunglasses case that he used as a tool pouch.   He stated that the tools belonged to his autobody repair shop and he was taking them to a friend.   Rubalcava claimed that the tool pouch was exposed and visible, and denied telling Elkins that he had a knife.   He said Hale, not Elkins, patted him down and asked if he had anything sharp on him, and he said yes, remembering that he had two putty knives in his back pocket.

Rebuttal

Hale testified that he had extensive training and experience in identifying homemade weapons and stabbing instruments while he was a federal corrections officer, as well as through handling numerous arrests for weapons similar to the one found on Rubalcava.   He stated that Rubalcava's knife had been sharpened or “grinded” to make it sharper than was originally intended and that the knife “absolutely” could be used as a stabbing instrument.

THE TRIAL COURT CORRECTLY DENIED RUBALCAVA'S MOTION TO DISMISS

Section 12020, subdivision (a) makes it a crime for a person to carry “concealed upon his or her person any dirk or dagger.”  “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.” (§ 12020, subd. (c)(24).)

 Rubalcava contends that the trial court erred in denying his motion to dismiss the information, because as a matter of law, the knife recovered from him was not a dirk or dagger.   We disagree.   Whether a particular knife qualifies as a dirk or dagger is generally a question of fact.  (People v. Bain (1971) 5 Cal.3d 839, 851-852, 97 Cal.Rptr. 684, 489 P.2d 564.)   Only where a weapon has characteristics that severely and indisputably limit its effectiveness as a stabbing instrument can it be held not a dirk or dagger as a matter of law.  (People v. Forrest (1967) 67 Cal.2d 478, 481, 62 Cal.Rptr. 766, 432 P.2d 374;  People v. Barrios (1992) 7 Cal.App.4th 501, 506, 8 Cal.Rptr.2d 666.)   Thus, a pocketknife without a locking blade was held not to be a dirk or dagger as a matter of law, because it was likely to close upon the hand of the wielder if it were used to stab someone.  (People v. Forrest, supra, 67 Cal.2d at p. 481, 62 Cal.Rptr. 766, 432 P.2d 374.)   Similarly, the court in People v. Barrios, supra, 7 Cal.App.4th at page 506, 8 Cal.Rptr.2d 666, held that a serrated bread knife recovered from the defendant was not a dirk or dagger as a matter of law, because it had a rounded tip, and the blade flexed noticeably when the tip was “applied to an object.”   Here, nothing about the knife recovered from Rubalcava so severely limited its effectiveness as a stabbing instrument that it could be held not a dirk or dagger as a matter of law.   Thus, a jury was entitled to decide whether it was “capable of ready use as a stabbing weapon that may inflict great bodily injury or death.” (§ 12020, subd. (c)(24).)  Accordingly, the court did not err in denying Rubalcava's motion to dismiss the information.

tHE COURT DID NOT ERR IN FAILING TO SUA SPONTE INSTRUCT THE JURY WITH CALJIC NO. 12.42

The court instructed the jury with CALJIC No. 12.41 which sets forth and defines the elements of carrying a concealed dirk or dagger that are contained in the statute.  (See § 12020, subds. (a) & (c)(24).)   Rubalcava contends, however, that the court was also required to sua sponte instruct the jury with CALJIC No. 12.42, which states that the jury may consider the “circumstances attending any possession” of the instrument and evidence of its intended use by the defendant in determining whether the instrument was the type of weapon specifically prohibited by the statute.   We disagree.

In People v. Grubb (1965) 63 Cal.2d 614, 620-621, 47 Cal.Rptr. 772, 408 P.2d 100, a case involving the possession of a billy club, the Supreme Court held that the “attendant circumstances, including the time, place, destination of the possessor, the alteration of the object from standard form, and other relevant facts indicat[ing] that the possessor would use the object for a dangerous, not harmless, purpose” could be considered in determining whether an otherwise useful object constituted a dangerous weapon under section 12020.   The Court also stated, however, that “[t]he prosecution need not show the intent of the possessor to use an instrument in a violent manner.”   (People v. Grubb, supra, 63 Cal.2d at p. 621, fn. 4, 47 Cal.Rptr. 772, 408 P.2d 100, italics added.)   Rather, the defendant may introduce evidence of his or her intent to use an instrument in a harmless manner, and the prosecution may then introduce evidence tending to rebut or negate such intent.  (Ibid.)

Courts are divided on the issue of whether evidence of the possessor's intent and the surrounding circumstances may be considered in determining whether an instrument was a dirk or dagger.  (Compare In re Quintus W. (1981) 120 Cal.App.3d 640, 645, 175 Cal.Rptr. 30;  In re Robert L. (1980) 112 Cal.App.3d 401, 405, 169 Cal.Rptr. 354 and People v. Ferguson (1970) 7 Cal.App.3d 13, 19, 86 Cal.Rptr. 383 [such evidence admissible in dirk or dagger cases] with People v. Barrios, supra, 7 Cal.App.4th at pp. 505-506, 8 Cal.Rptr.2d 666 and cases cited therein [such evidence limited to cases involving billy clubs].)

 Recently, however, two cases have held that section 12020, subdivisions (a) and (c)(24) must be interpreted such that the specific intent “to use the concealed instrument as a stabbing weapon” is an element of the offense of carrying aconcealed dirk or dagger, and thus, CALJIC No. 12.42 must be given sua sponte.  (See People v. Aubrey (1999) 70 Cal.App.4th 1088, 1102, 83 Cal.Rptr.2d 209;  People v. Oskins (1999) 69 Cal.App.4th 126, 138-139, 81 Cal.Rptr.2d 383.)   These courts reasoned that otherwise the statute would criminalize a variety of innocent conduct, and make felons of “[t]he tailor who places a pair of scissors in his jacket and the carpenter who puts an awl in his pocket” (People v. Oskins, supra, 69 Cal.App.4th at p. 138, 81 Cal.Rptr.2d 383), or “the shopper who walks out of a kitchen-supply store with a recently purchased steak knife ‘concealed’ in his or her pocket.”  (People v. Aubrey, supra, 70 Cal.App.4th at p. 1102, 83 Cal.Rptr.2d 209.)

 While we think that the courts in Oskins and Aubrey may have articulated a new and improved version of section 12020, subdivisions (a) and (c)(24), this version is contrary to the unambiguous language of the statute, which proscribes knowingly carrying a concealed instrument “capable of ready use as a stabbing weapon.” (§ 12020, subd. (c)(24).)   It also directly conflicts with the legislative history of the statute, which states:  “No intent for unlawful use would be required for violations of the prohibition on the concealed possession upon the person of an otherwise lawful dirk or dagger.”  (See Sen. Com. on Crim. Proc., Analysis of Assem. Bill 1222 (1995-1996 Reg. Sess.) Stats.1995, ch. 128, § 2.)   Moreover, the Supreme Court in Grubb noted that “[e]asy access to instruments of violence may very well increase the risk of violence” and that section 12020 was “designed for the salutary purpose of checking the possession of objects subject to dangerous use.”  (People v. Grubb, supra, 63 Cal.2d at p. 620, 47 Cal.Rptr. 772, 408 P.2d 100, italics added.)   Thus, the court stated that although an object may have innocent uses which make the circumstances attending possession admissible, the prosecution did not have to prove the specific intent to use the object in a violent manner.  (Id. at p. 621 & fn. 9, 47 Cal.Rptr. 772, 408 P.2d 100.)

 Accordingly, although the trial court may have been authorized to instruct the jury with CALJIC No. 12.42, it was not required to give the instruction sua sponte.   It is well settled that when a defendant believes a jury instruction needs amplification or explanation, or that a pinpoint instruction is needed, it is his duty to request such instructions.  (People v. Johnson (1993) 6 Cal.4th 1, 53, 23 Cal.Rptr.2d 593, 859 P.2d 673;  People v. Saille (1991) 54 Cal.3d 1103, 1117, 2 Cal.Rptr.2d 364, 820 P.2d 588.)   Having failed to request CALJIC No. 12.42 at trial, Rubalcava cannot complain on appeal that it was not given.   (People v. Johnson, supra, 6 Cal.4th at p. 52, 23 Cal.Rptr.2d 593, 859 P.2d 673.)

THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN PERMITTING HALE TO TESTIFY ON REBUTTAL

Rubalcava contends that the trial court committed prejudicial error in allowing Hale to testify in rebuttal that the knife at issue had grind marks, which indicated it had been sharpened and which improved its stabbing effectiveness.   Rubalcava argued at trial and argues again on appeal that this was improper rebuttal evidence because the condition of the knife blade should have been part of the prosecution's case-in-chief.

 “The admission of rebuttal evidence rests largely within the sound discretion of the trial court and will not be disturbed on appeal in the absence of ‘palpable abuse.’ ”  (People v. Carrera (1989) 49 Cal.3d 291, 323, 261 Cal.Rptr. 348, 777 P.2d 121, quoting People v. Graham (1978) 83 Cal.App.3d 736, 741, 149 Cal.Rptr. 6.)   Here, after hearing argument from both sides, the trial court determined that Hale's testimony was properly admitted during rebuttal because Rubalcava had testified in the defense's case that the object recovered from him was not a weapon, but merely a letter opener.   This ruling was within the court's discretion and we will not disturb it.  (See People v. Graham, supra, 83 Cal.App.3d at p. 741, 149 Cal.Rptr. 6;  see also People v. Grubb, supra, 63 Cal.2d at p. 621, fn. 9, 47 Cal.Rptr. 772, 408 P.2d 100.)

 Additionally, Rubalcava contends that Hale's testimony was improper opinion evidence.   However, he failed to object at trial on these grounds, and thus is precluded from raising this issue on appeal.  (Evid.Code, § 353;  People v. Escobar (1996) 48 Cal.App.4th 999, 1022, 55 Cal.Rptr.2d 883.)

THE TRIAL COURT ACTED WITHIN ITS DISCRETION IN ORDERING THE RESTITUTION FINES

 Rubalcava contends that the trial court erroneously assessed two $700 restitution fines under sections 1202.4 and 1202.45, because it did not realize that it had discretion to lower the fines based on his inability to pay.   We disagree.   Our review of the record reveals that the court was willing to, and did, exercise its discretion and lower the restitution fines to an amount slightly below what was suggested by the guidelines in section 1202.4, subdivision (b)(2).   However, the court declined to further reduce the fines.   This ruling was well within its discretion and we will not disturb it.

DISPOSITION

The judgment is affirmed.

FOOTNOTES

FN1. All statutory references are to the Penal Code, unless otherwise indicated..  FN1. All statutory references are to the Penal Code, unless otherwise indicated.

McINTYRE, J.

NARES, Acting P.J., and O'ROURKE, J., concur.