In re R.G. CA2/5 ( 2013 )

Filed 5/2/13 In re R.G. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re R.G., a Person Coming Under the B239442
Juvenile Court Law.
(Los Angeles County
Super. Ct. No. FJ49167)
THE PEOPLE,
Plaintiff and Respondent,
v.
R.G.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County, Cynthia
Loo, Juvenile Court Referee. Affirmed.
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, Assistant Attorney General, Margaret E. Maxwell and Tasha
G. Timbadia, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
The minor, Richard G., appeals from the juvenile court’s Welfare and Institutions
Code section 602 wardship order. The juvenile court sustained felony allegations the
minor carried a concealed dirk or dagger in violation of former Penal Code1 section
12020, subdivision (a)(4). (Stats. 2004, ch. 247, § 7, p. 2981.) Section 12020,
subdivision (a)(4) is now recodified at section 21310. (Stats. 2010, ch. 711, §§ 4-5.) The
minor was placed home on probation.
The minor contends there was insufficient evidence the weapon he possessed was
a dirk or dagger. The minor further asserts unauthorized destruction of the knife denied
him his due process right to review all legally admissible evidence and to an accurate
record on appeal. We affirm the juvenile court order.
II. DISCUSSION
A. There Was Substantial Evidence The Minor’s Weapon Was A Dirk Or Dagger
1. Standard of review
The minor contends there was insufficient evidence the knife found on his person
was a dirk or dagger within the meaning of former section 12020, subdivision (a)(4). The
standard of review in criminal proceedings involving minors is the same as that involving
adults. (In re V.V. (2011) 51 Cal.4th 1020, 1026; In re Muhammed C. (2002) 95
Cal.App.4th 1325, 1328.) We view the evidence in the light most favorable to the
adjudication and determine whether any rational trier of fact could have found the minor
guilty beyond a reasonable doubt. (In re V.V., supra, 51 Cal.4th at p. 1026; People v.
1 All further statutory references are to the Penal Code unless otherwise noted.
2
Medina (2009) 46 Cal.4th 913, 924-925, fn. 2.) We find substantial evidence supported
the juvenile court’s determination.
2. “Dirk or dagger” defined
A dirk or dagger is defined in former section 12020, subdivision (c)(24) as
follows: “[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.” (Italics added.) A “switchblade knife” was defined in former section
653k. (Stats. 2001, ch. 128, § 1.) A “switchblade knife” can also be a dirk or dagger.
(People v. Plumlee (2008) 166 Cal.App.4th 935, 940; In re Luke W. (2001) 88
Cal.App.4th 650, 656.) A “switchblade knife” was defined as, “[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.” (Former § 653k, italics added.) Section
653k has been recodified as sections 16965, 17235 and 21510. (Stats. 2010, ch. 711,
§§ 4-5.) The categories of knives expressly prohibited by the language of former section
653k are not exhaustive. (In re Gilbert R. (2012) 211 Cal.App.4th 514, 518; People ex
rel. Mautner v. Quattrone (1989) 211 Cal.App.3d 1389, 1395.) As the Court of Appeal
for the First Appellate District has held, “This language is intended to cover different
types of knives which operate similarly to those expressly listed.” (People ex rel.
Mautner v. Quattrone, supra, 211 Cal.App.3d at p. 1395.)
A knife with a blade that cannot be automatically exposed is a dirk or dagger only
if its blade is locked in an open position. Former section 12020, subdivision (c)(24)
provided: “A nonlocking folding knife, a folding knife that is not prohibited by Section
653k[, i.e., a folding knife that is not 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
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the knife is exposed and locked into position.” And former section 653k stated,
“‘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.”2 A “detent” is defined as follows, “A ‘detent’ is ‘a device (as a catch, dog, or
spring-operated ball) for positioning and holding one mechanical part in relation to
another in a manner such that the device can be released by force applied to one of the
parts.’ (Merriam-Webster m-w.com Dictionary (as of November 27, 2012); see also 4 Oxford English
Dict. (2d ed. 1989) p. 545 [defining ‘detent’ as ‘[a] stop or catch in a machine which
checks or prevents motion’].)” (In re Gilbert R., supra, 211 Cal.App.4th at p. 518.)
The key feature distinguishing a dirk or dagger from other types of knives is its
being “capable of ready use as a stabbing” weapon or instrument. (Former § 12020,
subd. (c)(24); see People v. Plumlee, supra, 166 Cal.App.4th at pp. 939-940.) As the
Court of Appeal for the Fourth Appellate District, Division One has explained: “[T]he
prohibition against carrying a concealed dirk or dagger is designed to give third parties
the opportunity to protect themselves from the risk of a surprise attack by a person
carrying a weapon. (See In re Luke W., supra, 88 Cal.App.4th at p. 653.) . . . [T]he
folding or pocketknife exception is consistent with the statute’s objective because folded
2 Former, section 653k provided in part: “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[2] or other mechanism that provides resistance that must be overcome in opening
the blade, or that biases the blade back toward its closed position.”
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knives are not capable of ready use ‘without a number of intervening machinations that
give the intended victim time to anticipate and/or prevent an attack.’ (Ibid.)” (People v.
Mitchell (2012) 209 Cal.App.4th 1364, 1371-1372.)
3. Application to the present case
We view the evidence in the light most favorable to the juvenile court’s findings.
The minor was carrying a knife concealed in his right front pant pocket. The blades were
completely closed. The knife was approximately 11 inches long with a 3-inch blade at
each end. The blades could be opened rapidly to a locked position. There were two ways
to rapidly expose the blades to a fully open and locked position using only one hand.
First, thumb screws on either end of the knife allowed the blades to be rapidly exposed.
Officer Gregorio Rangel testified as to the purpose of a thumb screw on a knife. Officer
Rangel testified a thumb screw is a screw attached to the blade or the actual body of the
knife that allows a person to rapidly open the weapon to a fully open, locked position,
“[The knife] would open rapidly if you just put your thumb on the thumb screw . . . and
swipe it forward, and it will lock in the fully outward position.” Officer Rangel further
explained: “You would apply pressure downward [on the thumbscrew] therefore making
the blades more easily swing out. It would release pressure on [the blades].” Second, the
minor’s weapon could be opened with one hand by a flick of a wrist. It functioned like a
gravity knife, that is, the blade could be released automatically. (See former § 653k.)
The minor’s knife was capable of inflicting serious bodily harm. It was the ability to
access the blade rapidly that distinguished this switch-blade type weapon from other non-
switchblade knives. Officer Rangel testified, “[This knife is] more dangerous . . .
because of the double blades on both sides both facing opposite directions [and] because
[it can] be used [for] stabbing, dragging, and [has a] serrated edge, and also it can be
easily concealed and retrieved.”
This constituted substantial evidence the weapon the minor carried concealed on
his person was a dirk or dagger within the meaning of former section 12020, subdivision
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(a)(4). Given the ability to rapidly expose the blades to a fully open and locked position,
it was “capable of ready use as a stabbing” weapon or instrumentality. Further, it was a
dangerous weapon capable of inflicting great bodily injury or death. (Former § 12020,
subd. (c)(24); see People v. Plumlee, supra, 166 Cal.App.4th at pp. 940-941; In re Luke
W., supra, 88 Cal.App.4th at p. 656; 17 Cal.Jur.3d, Criminal Law: Crimes Against
Administration of Justice and Public Order, § 219.)
B. There Was No Due Process Violation
Officer Rangel testified he tried to retrieve the knife from evidence on the day of
the adjudication. The knife could not be found. Officer Rangel was told law
enforcement authorities had disposed of the knife.
The minor contends “unauthorized” destruction of the knife prior to adjudication
denied him his due process right to review all legally admissible evidence and to an
accurate record on appeal. The minor argues: “[T]he unauthorized destruction of the
knife prevented the trial court from properly examining the evidence on the crucial issue
in the case. It also denied [the minor] the opportunity for a fair appellate review of the
evidence and is therefore a denial of due process.” This issue was not raised in the
juvenile court. There is no evidence the minor made any attempt to secure the knife as
evidence prior to trial. The minor did not object to the absence of the knife. He did not
request a hearing of any kind. He did not seek a showing the knife had in fact been
destroyed. He made no attempt to reconstruct the missing exhibit. The minor’s due
process argument has been forfeited. (People v. Skiles (2011) 51 Cal.4th 1178, 1189;
People v. Williams (1997) 16 Cal.4th 635, 661-662.)
Even if the issue had not been forfeited, we would not find any error or
constitutional deprivation. First, both Officer Rangel and the minor had examined the
knife. Each testified and described its characteristics in detail. Further, three
photographs of the weapon were admitted in evidence. The photographs showed the
knife in fully open, completely closed and partially open positions. The purported
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destruction of the knife did not prevent the juvenile court from examining evidence on
the crucial issue—whether the knife in question was a dirk or dagger. (See People v.
Sassounian (1986) 182 Cal.App.3d 361, 394; People v. Tierce (1985) 165 Cal.App.3d
256, 263.)
Second, the minor has a due process right to a record on appeal adequate to permit
meaningful appellate review. (People v. Bennett (2009) 45 Cal.4th 577, 589; People v.
Young (2005) 34 Cal.4th 1149, 1170; People v. Alvarez (1996) 14 Cal.4th 155, 196, fn.
8.) The appellate record includes exhibits admitted into evidence, refused or lodged.
(Cal. Rules of Court, rule 8.320(e); People v. Osband (1996) 13 Cal.4th 622, 663; People
v. Howard (1992) 1 Cal.4th 1132, 1165.) The burden is on the minor to show the
absence of the exhibit on appeal is prejudicial to him. (People v. Bennett, supra, 45
Cal.4th at p. 589; People v. Young, supra, 34 Cal.4th at p. 1170; People v. Osband, supra,
13 Cal.4th at p. 663; People v. Howard, supra, 1 Cal.4th at p. 1165.) The minor cannot
make that showing. The knife was never introduced in evidence in the juvenile court and
thereby not considered by the trier of fact. Therefore, it is not part of the record on
appeal. The absence of evidence before us that was never introduced in the juvenile court
cannot prejudice the minor’s appeal. And we have examined the photographs of the
weapons which were received in evidence. The minor has not been denied his due
process right to an adequate record on appeal. (See People v. Catlin (2001) 26 Cal.4th
81, 170-171; People v. Peevy (1998) 17 Cal.4th 1184, 1207-1208, fn. 4.)
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III. DISPOSITION
The wardship order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER, P. J.
We concur:
KRIEGLER, J.
O’NEILL, J.
 Judge of the Ventura Superior Court, assigned by the Chief Justice pursuant to
article I, section 6, of the California Constitution.
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