Filed 12/14/20; See concurring opinion
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B299886
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA099360)
v.
JOHNATHAN LEE HESTER,
Defendant and Appellant.
APPEAL from the judgment of the Superior Court of Los
Angeles County. Mark E. Windham, Judge. Affirmed.
Glenn L. Savard, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Thomas C. Hsieh, Deputy
Attorneys General, for Plaintiff and Respondent.
**********
Defendant and appellant Johnathan Lee Hester challenges
the sufficiency of the evidence supporting his conviction,
following a bench trial, of making criminal threats and carrying a
concealed dirk or dagger. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged by information with assault with a
deadly weapon (Pen. Code, § 245, subd. (a)(1); count 1), criminal
threats (§ 422, subd. (a); count 2) and carrying a concealed dirk or
dagger (§ 21310; count 3). It was also alleged defendant used a
dangerous weapon in the commission of count 2 and had suffered
two prior felony convictions within the meaning of section 667,
subdivision (a)(1) and the “Three Strikes” law (§§ 667, subds. (b)–
(j), 1170.12).
Defendant waived his right to a jury trial and the case
proceeded to a bench trial in June 2019. The testimony received
at trial established the following material facts.
On the evening of November 7, 2018, Sabrina O’Hara was
leaving her home in West Hollywood to meet some friends for
dinner, when she heard someone yelling “help.” She saw a man
slumped against a wall. She walked over to him and asked if he
was hurt. He said yes and she noticed his hand was bleeding.
Ms. O’Hara used her cell phone to call 911 and, at the same
time, ran back into her house to get a towel to put on the man’s
wound to try to stop the bleeding. When she came back outside,
Ms. O’Hara saw another man walking down the street. She
recognized the man because she had seen him several times
before—at least once at the neighborhood 7-Eleven store and
twice in the alley near her home. In court, she identified
defendant as the man she saw that night.
2
Ms. O’Hara said defendant had a goatee and was tall,
probably six feet. He was wearing dark clothing, including a
black “hoodie” sweatshirt, and was carrying a black backpack on
his back. The backpack was large and looked overstuffed. He
was yelling at the man with the bloody hand.
Ms. O’Hara testified it was dark outside but she could see
defendant “clearly.” He was about 15 to 16 feet from her.
Defendant was yelling angrily at the other man, saying “I’ll
fuckin’ do it again. I’ll kill you.” Defendant then noticed
Ms. O’Hara and said “who are you, bitch?” and “I’ll fuckin’ kill
you.”
Ms. O’Hara was scared but stayed with the injured man
and reassured him that help was coming. She was still on the
phone with 911. Ms. O’Hara yelled at defendant that the police
were on their way. She then asked the injured man who had
attacked him, and he pointed in the direction of defendant.
Deputy sheriffs arrived on the scene shortly thereafter.
An audio recording of Ms. O’Hara’s 911 call was played,
and she confirmed her voice on the recording. In the recording,
Ms. O’Hara reported that a tall, homeless man, wearing all black
and carrying a backpack, attacked another man, threatened her
and had left the area through the alley.
Deputy Sheriff Anthony Gamboa testified that when he
arrived at the scene, paramedics were already treating the
victim. His hand was bloody and appeared to have a deep cut.
The man was “hysterical” and kept saying he was going to die.
Deputy Gamboa spoke with Ms. O’Hara, who was still
standing nearby, and then broadcast on his radio her description
of the suspect. Ms. O’Hara told him she recognized defendant as
a homeless person who was often in the nearby alley. Shortly
3
thereafter, two other deputies who had responded to the call
reported they had detained a possible suspect in the alley. He
was tall, wearing dark clothing, with a dark-colored backpack.
Deputy Gamboa drove Ms. O’Hara to the location for a field
identification. He read her the required admonitions and she
then identified defendant as the person that threatened her and
was yelling at the victim. Ms. O’Hara also pointed out that she
recognized the large, overstuffed backpack sitting on the ground
which defendant had been wearing on his back.
Defendant was searched and a box cutter was found in the
right pocket of his pants. It was a folding box cutter that locked
into place when opened. When in the locked open position, the
exposed portion of the blade was about an inch in length and very
sharp. A second box cutter was found in the side pocket of
defendant’s backpack. It also locked when in the open position,
exposing a sharp, one-inch blade. No visible blood was on either
box cutter, nor were there visible blood drops or smears on
defendant.
At the close of the prosecution’s case-in-chief, the court
denied in part and granted in part defendant’s motion pursuant
to Penal Code section 1118.1, dismissing count 1.
Defendant presented two witnesses. Deputy Grehtel
Barraza testified that at the time of booking, defendant identified
an address in Van Nuys as his home address and did not say he
was homeless.
Defendant also called Dr. Mitchell Eisen, a psychologist.
He described his education and training and explained he had
studied the issue of eyewitness memory and suggestibility for
over 20 years. He stated his opinion that identification
4
procedures, like a field identification, where only one individual
is presented, are improperly suggestive.
The court found defendant guilty of counts 2 and 3,
explaining in detail its reasoning and analysis of the evidence.
The court found defendant’s two prior felony convictions from
1990 and 1993 remote in time, and also acknowledged defendant
had struggled with drug addiction and homelessness. The court
therefore granted, in part, defendant’s motion pursuant to People
v. Superior Court (Romero) (1996) 13 Cal.4th 497, striking both
prior convictions for purposes of Penal Code section 667,
subdivision (a)(1). The court also struck one prior conviction for
purposes of the Three Strikes law. The court granted the
prosecution’s motion to dismiss the use of a dangerous weapon
allegation as to count 2.
The court sentenced defendant to six years in prison
calculated as follows: the high term of three years, doubled due
to the prior strike, on count 2, and a concurrent term of six years
on count 3 (high term doubled). The court awarded defendant
460 days of presentence custody credits. Finding defendant had
no ability to pay, the court exercised its discretion not to impose
any fines or fees.
This appeal followed.
DISCUSSION
Defendant challenges the sufficiency of the evidence in
support of his conviction on both counts. We review the record
according to the familiar standard. (People v. Rodriguez (1999)
20 Cal.4th 1, 11 [“In assessing a claim of insufficiency of
evidence, the reviewing court’s task is to review the whole record
in the light most favorable to the judgment to determine whether
it discloses substantial evidence—that is, evidence that is
5
reasonable, credible, and of solid value—such that a reasonable
trier of fact could find the defendant guilty beyond a reasonable
doubt.”].) We conclude both counts are supported by substantial
evidence.
Defendant first contends the testimony of Ms. O’Hara, the
sole percipient witness, was of negligible weight and insufficient
to sustain a finding of guilt on count 2. He argues she could not
recall material facts and gave inconsistent accounts of the
incident.
Defendant asks us to reweigh the evidence which we
decline to do. Witness credibility is a question solely for the trier
of fact. (People v. Boyer (2006) 38 Cal.4th 412, 480 (Boyer); see
also People v. Zaragoza (2016) 1 Cal.5th 21, 44 [it is not the task
of a reviewing court to “resolve credibility issues or evidentiary
conflicts”].) “[U]nless the testimony is physically impossible or
inherently improbable, testimony of a single witness is sufficient
to support a conviction.” (People v. Young (2005) 34 Cal.4th 1149,
1181.) There is nothing in the record to support a conclusion that
Ms. O’Hara’s testimony was inherently improbable.
The court thoroughly explained the reasons why it found
Ms. O’Hara’s testimony credible. The law is clear that the
“[i]dentification of the defendant by a single eyewitness may be
sufficient to prove the defendant’s identity as the perpetrator of a
crime. [Citation.] Moreover, a testifying witness’s out-of-court
identification is probative for that purpose and can, by itself, be
sufficient evidence of the defendant’s guilt even if the witness
does not confirm it in court.” (Boyer, supra, 38 Cal.4th at p. 480.)
The record amply supports the court’s conclusion that defendant
was guilty on count 2.
6
Defendant next contends that a closed box cutter without
an exposed blade is not, as a matter of law, a dirk or dagger,
citing to language in Penal Code section 16470. He says both box
cutters were closed and the blades were not exposed and
therefore there is no evidence supporting his conviction on
count 3 for carrying a concealed dirk or dagger in violation of
section 21310.
Penal Code section 16470 defines a dirk or dagger as
“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.” (Ibid.) This definitional language is
immediately followed by an exemption: “A nonlocking folding
knife, a folding knife that is not prohibited by Section 21510[, i.e.,
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.”
(Ibid.)
Deputy Gamboa testified the box cutter found in
defendant’s pants pocket was a “folding box cutter” with a button
on the handle. When the button was depressed, the blade slid
open and locked into a fixed position. The button had to be
depressed again to retract the blade into the handle. The box
cutter found in the side pocket of defendant’s backpack was a
“non-folding box cutter” that had a button to slide the blade open
and which locked the blade into place. The button had to be
pushed again to retract the blade.
Neither box cutter was a nonlocking folding knife.
Defendant concedes that both box cutters locked into a fixed
position when open and therefore do not qualify as nonlocking
7
knives. The box cutters obviously were not pocketknives, and
defendant does not contend they were.
Defendant maintains however that because the blades on
both box cutters either folded into the handle (the one found in
his pocket) or retracted with a push of a button (the one found in
his backpack), they qualify as non-switchblade folding knives and
the statutory exemption therefore applies.
We are not persuaded. Penal Code section 16470 excludes
only nonlocking folding knives, non-switchblade folding knives,
and pocketknives. The box cutter in defendant’s backpack was
nonfolding. If the Legislature had wanted to exclude nonfolding
box cutters from the definition of “dirk” or “dagger,” or to exclude
all box cutters as they chose to exclude all pocketknives, they
could have said so. “Our function is not to judge the wisdom of
statutes. [Citation.] Nor are we empowered to insert what a
legislative body has omitted from its enactments.” (Wells Fargo
Bank v. Superior Court (1991) 53 Cal.3d 1082, 1099; see also
People v. Albillar (2010) 51 Cal.4th 47, 54–55 [in construing
statutory language, reviewing court must give words “ ‘their
ordinary and usual meaning’ ” and view them in context
“ ‘because the statutory language is usually the most reliable
indicator of legislative intent’ ”].)
Defendant’s reliance on People v. Aledamat (2019) 8 Cal.5th
1 is misplaced. Aledamat concerned a charge of assault with a
deadly weapon, a box cutter. Aledamat held the trial court erred
by instructing the jury that a box cutter was an inherently deadly
weapon. The court was not called upon to interpret the language
of Penal Code section 16470, which defines “dirk” or “dagger.”
The question whether the box cutter used by the defendant in
Aledamat was a “dirk” or “dagger” was not in issue. The question
8
whether the box cutters defendant possessed were deadly
weapons is not in issue in this case, as the court dismissed the
use of a dangerous weapon allegation.
Moreover, the concern expressed in the concurring opinion
about statutory overbreadth is unfounded. The Supreme Court
has held the definition of dirk or dagger includes a knowledge
element. (People v. Rubalcava (2000) 23 Cal.4th 322, 331–332,
discussing former Pen. Code, § 12020.) “Thus, to commit the
offense, 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.’ ” (Rubalcava, at p. 332.)
“In addition to incorporating a knowledge element, the
California Supreme Court has generally recognized that when a
defendant is charged with an offense that penalizes possession of
an instrument that is ordinarily usable for peaceful purposes, the
defendant may justify the possession by showing the possession
was ‘in accordance with [the instrument’s] ordinary legitimate
design.’ ” (People v. Mitchell (2012) 209 Cal.App.4th 1364, 1372,
quoting People v. Grubb (1965) 63 Cal.2d 614, 621, fn. 9; see also
CALCRIM No. 2501 [“When deciding whether the defendant
knew the object [(could be used as a stabbing weapon)], consider
all the surrounding circumstances, including the time and place
of possession. Consider also (the destination of the
defendant[,]/the alteration of the object from standard form[,])
and other facts, if any.”].)
Defendant relies on People v. Pellecer (2013)
215 Cal.App.4th 508 (Pellecer) to support his argument the box
cutter in his backpack was not concealed on his person within the
meaning of Penal Code section 21310. (There is no dispute the
9
box cutter found in defendant’s pants pocket was concealed upon
his person.) Section 21310 prohibits carrying a dirk or dagger
concealed “upon the person.” (Ibid.)
In Pellecer, the defendant had been “leaning” on a backpack
later found to contain three knives. (Pellecer, supra,
215 Cal.App.4th at p. 511.) Pellecer explained it was “not the
function of the courts to judge the wisdom of statutes or the way
they are written” and concluded that if the Legislature had
intended to proscribe the concealment of a dirk or dagger in a
container that was carried, it could have easily chosen to include
such language but instead used language commonly understood
to mean on the body or in one’s clothing. (Ibid.)
However, subsequent to Pellecer, the Supreme Court
decided People v. Wade (2016) 63 Cal.4th 137 (Wade). Wade
construed similar language in Penal Code section 25850,
subdivision (a) which proscribes the carrying, in a public place, of
a loaded firearm “on the person” and held it included the carrying
of the firearm in a backpack worn on the body. (Wade, at
pp. 143–145.) The court rejected the defendant’s argument the
phrase should be narrowly construed, positing a hypothetical
illuminating why the defendant’s construction was untenable. “It
would require, for example that we treat differently a gun in a
zippered pocket of a pair of cargo pants—which would violate the
statute—from a gun in a fanny pack tied around the waist—
which would not violate the statute—even though, from the
perspective of easy access, the gun at the waist might be closer at
hand than the gun in the knee pocket of the cargo pants.” (Id. at
p. 145.)
Wade distinguished Pellecer, explaining that it was
factually distinguishable because the defendant there “was
10
merely leaning on the backpack and thus, arguably, had less
immediate control over its contents than defendant had in this
case, where he was actually wearing the backpack.” (Wade,
supra, 63 Cal.4th at p. 146, italics added.)
Defendant here was wearing the backpack containing the
box cutter and the box cutter was therefore on his person within
the meaning of Penal Code section 21310. (Wade, supra,
63 Cal.4th at pp. 145–146.)
We agree with the concurring opinion that a morally
blameless person carrying a concealed box cutter for innocent
purposes, such as a grocery store worker, carpenter or car
mechanic, cannot be convicted of violating Penal Code
section 21310. Defendant was convicted of violating
section 21310 because he inflicted a deep, bloody wound on the
victim and yelled at the victim as he sat slumped against a wall
that defendant would kill him (and the eyewitness, too), leaving
the victim in hysterical fear of death. This defendant was not
morally blameless, and our holding does not invite prosecutors to
prosecute morally blameless people.
DISPOSITION
The judgment of conviction is affirmed.
GRIMES, J.
I CONCUR:
BIGELOW, P. J.
11
WILEY, J., Concurring.
Today’s holding itself is like a box cutter: a very sharp tool,
so you better handle it with care and know what you are doing.
Box cutters are useful. They are very common tools. But
here we rule box cutters are dirks or daggers, which are illegal to
possess if you have one in your pocket. The defendant in this
case, Hester, got six years in prison for carrying a box cutter that
way.
This does make sense, ultimately, based on the posture of
this case; I concur in the judgment. But the matter is rather
complex and, in some respects, uncertain. I’ll explain why.
First we must grapple with the statutory language, which
is bizarrely broad and is the result of a century of puzzlement
over how California will regulate street weapons.
Second, we must interpret this statute according to a
standard canon: courts construe criminal statutes by presuming
the Legislature meant to outlaw only morally blameworthy
conduct. I’ll explain what that means and provide authority.
Third, this holding that box cutters are dirks or daggers is
right only if we read the statute also to ensure it cannot condemn
morally blameless people. There is a way to do that; in fact, a
line or two from existing case law gives exactly that
interpretation. But those few passing lines deserve more
emphasis, especially in the standard jury instruction, which
omits them entirely. The CALCRIM Committee should take
note. And there is latent uncertainty our Supreme Court may
someday wish to probe.
1
I
First, it should raise eyebrows that an ordinary box cutter
is an illegal dirk or dagger. Grocery store workers often carry a
box cutter in their pocket. These people, and many others too,
will be mightily surprised to learn they could be criminals
because box cutters are illegal dirks or daggers. The prosecution
urges this unprecedented reading of the law. Until today, no
court has agreed.
Here is the statute. I italicize the 10 key words:
As used in this part, “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 21510, 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. (Pen. Code, § 16470.)
The question is whether an ordinary box cutter with a
retractable blade is a dirk or dagger.
Certainly the words of the statute—“other instrument . . .
capable of ready use as a stabbing weapon”—can be interpreted to
cover a box cutter. A box cutter indeed “may inflict great bodily
injury.” But so can anything that can poke you in the eye, like a
sharp stick. That is the problem: this statutory language is
stupendously broad.
This language equally includes:
1. pencils,
2. pens,
3. nails,
4. barbecue forks,
2
5. sewing needles,
6. knitting needles,
7. screwdrivers,
8. letter openers,
9. scissors, and
10. a miniature replica of the Eiffel Tower.
According to this expansive language, if you are sitting
around a campfire aimlessly whittling a point on a stick, you are
making yourself a dirk or dagger.
So the problem this case poses is, how can this possibly be
right?
With this decision, we join in a historic and century-long
California struggle to define what weapon-like pocket objects can
send you to prison. The effort began in 1917. (People v.
Castillolopez (2016) 63 Cal.4th 322, 327–329 [tracing evolution
since then] (Castillolopez).) The statute in its current form dates
in substance from 1997. (Id. at pp. 328–329.) Cases from before
1997 grappled with a different statute than this current one.
Our job is to interpret this statute to ascertain legislative
intent so we can effectuate the purpose of the law. We look first
to the statutory words themselves, but we do not consider them
in isolation. Rather we examine the entirety of the statute to
determine its scope and purpose. We construe its words in
context and harmonize all its parts. (Castillolopez, supra,
63 Cal.4th at p. 329.)
An abiding concern throughout this statute’s history has
been its stupendous breadth. (E.g., People v. Rubalcava (2000)
23 Cal.4th 322, 331 (Rubalcava) [it is “troubling” this statute
reaches tailors with scissors in their jackets, carpenters with
awls in their pockets, car mechanics with a utility knife in their
3
back pockets before going out to lunch, shoppers walking out of a
kitchen-supply store with a recently purchased steak knife
“concealed” in a pocket, and parents who wrap a sharp pointed
knife in a paper towel and place it in a coat “ ‘to carry into a PTA
potluck’ ”]; id. at p. 333 [“we echo the concerns over the breadth of
the statute,” which “may criminalize seemingly innocent conduct.
Consequently, the statute may invite arbitrary and
discriminatory enforcement . . . due to the wide range of
otherwise innocent conduct it proscribes.”].)
Today’s holding raises a concern that a box cutter in your
pocket now is a serious crime—for anyone. Were that concern
valid, you would be left to hope that no unfriendly people noticed
you, or, if they did, that the police and prosecutor would not
regard you as unworthy or undesirable for some reason. Our
Supreme Court has said this statute thus seems “overbroad as a
matter of common sense,” for it may “invite arbitrary and
discriminatory enforcement . . . due to the wide range of
otherwise innocent conduct it proscribes.” (Rubalcava, supra,
23 Cal.4th at p. 333.)
Proper statutory interpretation must notice and solve this
problem.
II
Proper interpretation of criminal statutes begins with the
premise that our Legislature intended to reserve the power and
shame of the criminal sanction only for those who are morally
blameworthy. That premise is the law.
The American inclination to confine criminal liability to
morally blameworthy people is old. “The contention that an
injury can amount to a crime only when inflicted by intention is
no provincial or transient notion. It is as universal and
4
persistent in mature systems of law as belief in freedom of the
human will and a consequent ability and duty of the normal
individual to choose between good and evil.” (Morissette v. United
States (1952) 342 U.S. 246, 250 (Morissette).)
The central thought is that defendants must be
blameworthy in mind before they can be found guilty, “a concept
courts have expressed over time through various terms such as
mens rea, scienter, malice aforethought, guilty knowledge, and
the like.” (Elonis v. United States (2015) 575 U.S. 723, ___ [135
S.Ct. 2001, 2009] (Elonis), quoting Morissette, supra, 342 U.S. at
p. 252.)
This central thought “took deep and early root in American
soil.” (Morissette, supra, 342 U.S. at p. 252.)
Courts therefore interpret criminal statutes to ensure they
do not condemn morally blameless actions, even where the
statute by its terms does not expressly suggest this reading.
(See, e.g., Elonis, supra, 135 S.Ct. at p. 2009.)
We thus must presume the Legislature did not intend to
write criminal laws to ensnare the innocent.
To state it in the positive, we must presume legislators in
America enact criminal statutes that confine the statute’s scope
to morally blameworthy actions. No one thinks ordinary tailors,
carpenters, or grocery clerks are morally blameworthy because
they put some pointed thing in a pocket.
This presumption explains the judicial practice, at both the
federal and the state level, of interpreting criminal statutes to
confine their reach to morally culpable actions.
This practice is federal. (E.g., Elonis, supra, 135 S.Ct. at
pp. 2009–2012; United States v. X-Citement Video, Inc. (1994)
513 U.S. 64, 67–78; Staples v. United States (1994) 511 U.S. 600,
5
604–620; Ratzlaf v. United States (1994) 510 U.S. 135, 138–149;
Liparota v. United States (1985) 471 U.S. 419, 424–426.)
The practice is equally at home in California state
jurisprudence. The Penal Code laid the foundation from its
earliest days. (Pen. Code, § 20 [“In every crime or public offense
there must exist a union, or joint operation of act and intent, or
criminal negligence.”].)
Our Supreme Court interprets criminal statutes to include
a guilty knowledge requirement even when the statutes are
entirely silent on the topic. (E.g., Stark v. Superior Court (2011)
52 Cal.4th 368, 377, 393; see id. at pp. 390–403; People v. Salas
(2006) 37 Cal.4th 967, 979; In re Jorge M. (2000) 23 Cal.4th 866,
887; People v. Coria (1999) 21 Cal.4th 868, 878–880; People v.
Simon (1995) 9 Cal.4th 493, 519–522.)
This approach to statutory interpretation expresses a
conception of justice that is not simply federal nor Californian in
origin. This conception of justice is American in character.
Nobody in this country—including our elected lawmakers—wants
legislatures writing criminal laws that can imprison blameless
people. Other countries have done that, but that is contrary to
our shared ideals. Because our lawmakers share this view, this
presumption effectuates legislative intent.
So how do we square this fundamental concern about the
properly delimited scope of the criminal law with the seemingly
unbounded statutory language in this case?
III
The Grubb and Mitchell cases suggest a statutory
interpretation that may solve the problem and that therefore
deserves emphasis. (See People v. Grubb (1965) 63 Cal.2d 614,
6
621, fn. 9 (Grubb); People v. Mitchell (2012) 209 Cal.App.4th
1364, 1372 (Mitchell).)
Of these two cases, only the Mitchell decision was a dirk-or-
dagger case. I’ll come to it shortly. Let’s start with the older
case, the one from the Supreme Court.
Grubb dealt with a different but similarly expansive
statute that outlawed a weapon “commonly known as a billy.”
(Grubb, supra, 63 Cal.2d at p. 615; see Pen. Code, § 22210.)
Justice Tobriner—one of the giants in California’s judicial
pantheon—wrote that “a small baseball bat” counted as an illegal
billy. (Grubb, at pp. 615–621 & fn. 9.) Grubb’s “possession of the
altered baseball bat, taped at the smaller end, heavier at the
unbroken end, carried about in the car, obviously usable as a
‘billy,’ clearly not transported for the purpose of playing baseball,
violates the statute.” (Id. at p. 621.) Buried in footnote 9, the
Grubb decision noted defendants may justify their “possession of
an instrument found under suspicious circumstances by proof of
[their] intent to use it in accordance with its ordinary legitimate
design.” (Id. at p. 621, fn. 9.)
Let’s review that, just to be clear.
The statute outlawed possession of “ ‘any instrument or
weapon of the kind commonly known as a blackjack, slungshot,
billy, sandclub, sandbag, sawed-off shotgun, or metal
knuckles . . . .’ ” (Grubb, supra, 63 Cal.2d at p. 615, italics
added.) The court held a baseball bat qualified as a “billy”—at
least a bat that was small and altered to serve as a weapon. (Id.
at p. 621.) But Little Leaguers and other innocents had nothing
to fear because the high court simultaneously interpreted the
statute to allow a defense that the defendant intended to use the
7
baseball bat “in accordance with its ordinary legitimate design.”
(Id. at p. 621, fn. 9.)
Three features of Grubb’s holding are notable.
First, the words of the statute said nothing about that
defense. But our Supreme Court was entirely comfortable
interpreting the statute to create it. The goal was to exempt
“innocent usage of the proscribed instrument” from the statute’s
reach. (Grubb, supra, 63 Cal.2d at p. 622.) In other words, the
Grubb court presumed legislators intended for this criminal
statute to reach only morally blameworthy conduct. Part II of
this concurrence showed how completely conventional this
premise is in American law.
Second, is the Supreme Court really sure this is exactly
right? The approach that “common things are illegal but you
may defend by showing you are innocent” may clash with more
recent Supreme Court notions about the burden of proof in
criminal law. But I leave this latent uncertainty for a case where
the parties have briefed it.
Third, Grubb is valid law. The Supreme Court in
Rubalcava, supra, 23 Cal.4th at pages 329 and 333 cited Grubb
approvingly, including Grubb’s footnote 9.
This defense from the Grubb case is vital because it
provides a solution to the problem of statutory overbreadth that
today’s decision might otherwise exacerbate.
Now I turn to the other decision: Mitchell.
The Mitchell decision took the defense from Grubb’s bat-
and-billy context and applied it to dirk-and-dagger law.
(Mitchell, supra, 209 Cal.App.4th at p. 1372.) Defendant Mitchell
was carrying an 11-inch knife under his sweatshirt. Why?
Mitchell told the jury it was because he was going fishing that
8
day. (Id. at pp. 1369–1370.) The jury apparently rejected this
defense as a fish story of another kind, perhaps because Mitchell
told security officers something different: “that he carried the
knife for self-defense.” (Id. at p. 1369.) Also, Mitchell had no
fishing tackle with him: just the 11-inch knife. (Id. at p. 1370.)
Although the jury did not believe Mitchell, the Mitchell court
validated his statutory right to show his mental state was not
blameworthy.
Hester likewise failed to convince the fact finder this
statutory defense applied. His lawyer argued Hester’s possession
was innocuous, but the judge in this bench trial reached the
opposite conclusion: “obviously I do believe he’s the person who
cut the victim.” Using a box cutter to cut another person is not in
accordance with its ordinary legitimate design.
The CALCRIM instruction No. 2501 ought to be explicit
about directing trial lawyers and trial judges to this important
defense from Grubb and Mitchell. This defense is what insulates
morally innocent people from the statute’s expansive scope.
The CALCRIM Committee thus should consider revising
CALCRIM No. 2501. That instruction currently has this
inadequate provision:
“ [When
deciding whether the defendant knew the object (was an
explosive/could be used as a stabbing weapon), consider all the
surrounding circumstances, including the time and place of
possession. Consider also (the destination of the defendant[,]/ the
alteration of the object from standard form[,]) and other facts, if
any.]”
This provision is noble but unsatisfactory. The provision is
noble because it strives to limit the statute and thus to prevent it
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from ensnaring innocent people. The provision is unsatisfactory
because it fails in its mission. If asked “do you know your box
cutter could be used as a stabbing weapon?”, an honest and
morally innocent grocery clerk would truthfully and forthrightly
say “yes.” The clerk would say “yes” because anything with a
sharp point can be used as a stabbing weapon, and everyone with
any wits knows it. As the trial court in this case rightly put it,
one can “easily infer that the defendant [Hester] knows its
nature,” referring to Hester’s knowledge that a box cutter readily
could be used as a stabbing weapon.
This unsatisfactory language in CALCRIM No. 2501 should
be dropped or de-emphasized in favor of the important statutory
defense from Grubb and Mitchell.
Thus I join today’s result, but only with some uncertainty.
California’s legal conversation about stabbing weapons has been
going on for a century. Today’s words should not be the last.
WILEY, J.
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