The People v. Pellecer

Filed 4/17/13
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B238949
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA388585)
v.
KEVIN ALEJANDRO PELLECER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County. Monica
Bachner, Judge. Reversed.
Joy A. Maulitz, 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, Lawrence M. Daniels,
Supervising Deputy Attorney General, and William H. Shin, Deputy Attorney General,
for Plaintiff and Respondent.
_________________________________
Defendant Kevin Pellecer appeals from the judgment entered following a jury trial
in which he was convicted of carrying a concealed dirk or dagger on his person in
violation of former Penal Code section 12020, subdivision (a)(4).1 Defendant contends
that his conviction is not supported by substantial evidence because the knives he
possessed were inside of his backpack, and he was thus not carrying them on his person.
He raises related contentions of misinstruction of the jury and vagueness of the statute.
We agree that defendant did not violate the statute because the knives in his backpack
were not carried on his person. Accordingly, we reverse defendant‟s conviction.
BACKGROUND
At 2:30 a.m. on September 5, 2011, Los Angeles Police Department Officers
Reynaldo Masangkay and Carlos Landivar responded to a call about a burglary suspect at
Barnsdall Park in Los Angeles. They found defendant crouching in a corner of an
enclosed patio in the park. Defendant was leaning on a closed backpack. In response to
the officers‟ orders, defendant approached them. The record does not indicate whether
defendant took the backpack with him while complying with the officers‟ orders.
Masangkay unzipped the backpack and found inside it a nylon pouch that contained three
identical knives. Masangkay testified that he had previously studied martial arts and
recognized the knives as shuriken throwing knives, which could be used offensively or
defensively for throwing or stabbing. Each knife was three or four inches long, with one
sharp end and a ring on the opposite end. Each knife had an identical ribbon attached to
1 Penal Code section 12020 was repealed, effective January 1, 2012. (Stats. 2010,
ch. 711, § 4.) The current equivalent statute is Penal Code section 21310, which
provides, “Except as provided in Chapter 1 (commencing with Section 17700) of
Division 2 of Title 2, any person in this state who carries concealed upon the person any
dirk or dagger is punishable by imprisonment in a county jail not exceeding one year or
imprisonment pursuant to subdivision (h) of Section 1170.” (Undesignated statutory
references are to the Penal Code.) In 2011, as now, 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; former § 12020, subd.
(a)(24).)
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its ring. Masangkay testified that the ring could be used as a handle for stabbing,
concealing the knife, or “flipping” it.
Detective Michelle Gomez testified that defendant later told her he used the knives
as digging tools and that he had previously been arrested for possession of a knife.
Officer Joenador Nepomuceno testified as an expert for the prosecution regarding
“edged weapons.” He had an extensive background in martial arts and taught edged
weapon classes for law enforcement personnel. Nepomuceno testified that the knives
found in defendant‟s backpack are usually sold in sets of three and are principally used
for throwing, though they can be used for stabbing. A lanyard, chain, or rope is attached
to the ring so that the knife can be retracted after it is thrown.
The jury convicted defendant of carrying a concealed dirk or dagger on his person
in violation of former Penal Code section 12020, subdivision (a)(4). (Stats. 2008, ch.
699, § 18, p. 4835.) The court placed defendant on probation for three years on
conditions including serving 365 days in jail, with credit for 334 days.
DISCUSSION
In 2011, former section 12020, subdivision (a)(4) provided criminal penalties for
anyone who “[c]arries concealed upon his or her person any dirk or dagger.”
Defendant contends that his conviction is not supported by substantial evidence
because the knives he possessed were inside of his backpack, and he was thus not
carrying them on his person. We agree because the ordinary and usual meaning of the
words of the statute; the requirement that both the word “[c]arries” and the phrase “upon
his or her person” be given significance and effect; and the legislative history of the
statute demonstrate that a dirk or dagger inside a carried or adjacent container is not
carried “upon his or her person.” Accordingly, the knives contained in the backpack upon
which defendant leaned were not carried upon his person, and he did not violate the
statute.
During deliberations, the jury honed in upon the very issue presented on appeal by
requesting that the trial court “[d]efine on his person.” Over defendant‟s objection, the
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court responded, “„On his person‟ includes upon the body of a person, or the attire or
clothing, or a bag or container carried by the person.”
In construing a statute, we attempt to determine the intent of the Legislature.
(People v. Albillar (2010) 51 Cal.4th 47, 54.) In determining that intent, we first examine
the words of the statute, viewing them in their statutory context and giving them their
ordinary and usual meaning, because the language of a statute is usually the most reliable
indicator of legislative intent. (Id. at p. 55.) If the language of a statute is unambiguous,
the plain meaning controls, and we have no occasion to resort to principles of statutory
construction or extrinsic sources. (Ibid.) Significance should be attributed to every word
and phrase of a statute, and a construction making some words surplusage should be
avoided. (People v. Rodriguez (2012) 55 Cal.4th 1125, 1131.) We consider the statute as
a whole, harmonizing the various elements by considering each clause and section in the
context of the overall statutory framework. (People v. Jenkins (1995) 10 Cal.4th 234,
246.) We select the construction that best comports with the apparent intent of the
Legislature, with a view to promoting the purpose of the statute, and avoiding absurd
consequences. (Ibid.) “If the statute is ambiguous, we may consider a variety of extrinsic
aids, including legislative history, the statute‟s purpose, and public policy.” (People v.
Arias (2008) 45 Cal.4th 169, 177.) “If a statute defining a crime or punishment is
susceptible of two reasonable interpretations, we ordinarily adopt the interpretation that is
more favorable to the defendant.” (Ibid.)
The ordinary meaning of “upon his or her person” is on the body or in the clothing
worn on the body. Thus, Black‟s Law Dictionary defines “on the person” as follows: “In
common parlance, when it is said that someone has an article on his person, it means that
it is either in contact with his person or is carried in his clothing.” (Black‟s Law Dict. (6th
ed. 1990) p. 1089, col. 2.) In contrast, Black‟s defines “on or about the person” as
follows: “As used in statutes making it an offense to carry a weapon „on or about‟ the
person, it is generally held that the word „on‟ means connected with or attached to, and
that „about‟ is a comprehensive term having a broader meaning than „on,‟ and conveying
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the idea of being nearby, in close proximity, within immediate reach, or conveniently
accessible.” (Id., col. 1) Similarly, “person” in this context means “an individual‟s body”
(New Oxford American Dict. (2010) at [as of Apr.
16, 2013]), “the body of a human being; also: the body and clothing” (Merriam-Webster
(2013) at [as of Apr. 16, 2013]). Thus, giving the
words of the statute their ordinary and usual meaning, a dirk or dagger inside an adjacent
container, such as the backpack upon which defendant was leaning, or even inside a
carried container, is not “upon his or her person.” The knives in defendant‟s backpack
may have been on or about defendant‟s person, but the statute does not criminalize
carrying a dirk or dagger on or about the person, only carrying a dirk or dagger “upon”
the person.
In addition, a defendant violates the statute only if he or she “[c]arries concealed
upon his or her person any dirk or dagger.” (Former § 12020, subd. (a)(4), italics added.)
If the Legislature intended to include within the statute‟s scope the act of carrying a dirk
or dagger in a backpack or other container, the phrase “upon his or her person” is
meaningless surplusage. If that were the Legislature‟s intent, it could have fully
expressed it by phrasing former subdivision (a)(4) as “carries any concealed dirk or
dagger.” Conversely, if the Legislature intended for the phrase “upon his or her person”
to include containers that are carried, then “carries” is meaningless surplusage. But the
Legislature defined the crime using separate language for the elements of carrying and the
place of carrying, that is, upon the person. In order to give effect to both the carrying and
“upon his or her person” elements of the statute, as we must presume the Legislature
intended, the phrase “upon his or her person” cannot be construed to include a container
that is carried.
Our conclusion regarding the intent of the Legislature is reinforced by an
examination of legislative history. Assemblymember Granlund introduced Assembly Bill
No. 78 during the 1997–1998 Regular Session of the Legislature. On March 17, 1997,
the author amended the bill to include the following language in former section 12020,
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subdivision (b), which provides exemptions from the scope of subdivision (a): “(17) A
knife that is carried in a backpack, tool belt, tackle box, briefcase, purse, or similar
container that is used to carry or transport possessions.” (Legis. Counsel‟s Dig., Assem.
Bill No. 78, as amended Mar. 17, 1997 (1997–1998 Reg. Sess.).) On March 20, 1997, the
author again amended the bill to replace “knife” in the above-quoted provision to “dirk or
dagger.” Thus, the bill would have added to former section 12020, subdivision (b), the
following exemption: “(17) A dirk or dagger that is carried in a backpack, tool belt,
tackle box, briefcase, purse, or similar container that is used to carry or transport
possessions.” (Legis. Counsel‟s Dig., Assem. Bill No. 78, as amended Mar. 20, 1997
(1997–1998 Reg. Sess.).)
The bill analysis prepared by chief counsel for the Assembly Committee on Public
Safety characterized the above-quoted portion of Assembly Bill No. 78, as amended
March 20, 1997, as “[codifying] case law that a dirk or dagger is not concealed upon the
person where the dirk or dagger that [sic] is carried in a backpack, tool belt, tackle box,
briefcase, purse, or similar container that is used to carry or transport possessions.”
(Assem. Com. on Public Safety, Analysis of Assem. Bill No. 78 (1997–1998 Reg. Sess.)
as amended Mar. 20, 1997, p. 1, italics added.) The bill analysis further explained,
“Under current Section 12020, dirks or daggers are considered to be illegally carried only
if carried concealed upon the person. Case law suggests that this is under the person’s
clothes. [¶] . . . At the request of the Buck Knives, AB 798 [sic] also provides that a
dirk or dagger is not illegally carried concealed if it is carried in a backpack, tool belt,
tackle box, briefcase, purse, or similar container that is used to carry or transport
possessions. This appears to be consistent with current case law.” (Assem. Com. on
Public Safety, Analysis of Assem. Bill No. 78 (1997–1998 Reg. Sess.) as amended
Mar. 20, 1997, p. 6, italics added.) The Assembly Committee on Public Safety
unanimously approved Assembly Bill No. 78, as amended March 20, 1997, and the bill
analysis for the third reading in the Assembly repeated that the amendment regarding a
dirk or dagger carried in a container “[c]odifies case law that a dirk or dagger is not
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concealed upon the person where the dirk or dagger that [sic] is carried in a backpack,
tool belt, tackle box, briefcase, purse, or similar container that is used to carry or transport
possessions.” (Assem. Floor Analysis of Assem. Bill No. 78 (1997–1998 Reg. Sess.) as
amended Mar. 20, 1997, p. 1, italics added.) The Assembly unanimously passed
Assembly Bill No. 78, as amended March 20, 1997.
The Senate Public Safety Committee considered Assembly Bill No. 78 on May 29,
1997. (Legis. Counsel‟s Dig., Assem. Bill No. 78, as amended May 29, 1997 (1997–1998
Reg. Sess.).) The bill analysis prepared for a June 10, 1997 hearing by the Senate
Committee on Public Safety suggested deletion of the exemption for a dirk or dagger
carried in a backpack or other container: “In order to prevent possible confusion,
committee staff recommends deleting the language on page 7, lines 36–38 [„(17) A dirk
or dagger that is carried in a backpack, tool belt, tackle box, briefcase, purse, or similar
container that is used to carry or transport possessions‟], of this bill pertaining to odirks
[sic] and daggers.o [sic] Staff and interested parties appear to have agreed to that
amendment.” (Sen. Com. on Public Safety, Analysis of Assem. Bill No. 78 (1997–1998
Reg. Sess.) as amended May 29, 1997, pp. 12–13, italics added.) On June 17, 1997, the
Senate amended the bill by deleting the exemption for a dirk or dagger carried in a
backpack or other container. (Legis. Counsel‟s Dig., Assem. Bill No. 78, as amended
June 17, 1997 (1997–1998 Reg. Sess.).) On July 17, 1997, after further amendments
irrelevant to the issue on appeal, the Senate passed Assembly Bill No. 78, as amended in
the Senate on July 7, 1997.
The report prepared for the Assembly‟s consideration of the Senate amendments to
the bill explained that the Senate amendments “[d]elete a duplicative provision of this bill
as it passed the Assembly relating to when a dirk or dagger was not concealed upon the
person.” (Concurrence in Sen. Amendments, Rep. on Assem. Bill No. 78 (1997–1998
Reg. Sess.) as amended July 7, 1997, italics added.) The Assembly approved the bill as
amended by the Senate, and the legislation was signed by the Governor.
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Although the proposed exemption for a dirk or dagger carried in a backpack or
other container was not enacted, the legislative history of Assembly Bill No. 78 (1997–
1998 Reg. Sess.) demonstrates that the Legislature considered that proposed exemption to
reflect what it believed was established law, that is, a dirk or dagger carried in a
backpack, tool belt, tackle box, briefcase, purse, or similar container that is used to carry
or transport possessions is not concealed “upon his or her person,” and thus does not
violate former section 12020, subdivision (a)(4). The proposed exemption was deleted
not because the Legislature disagreed with the merits or advisability of the exemption, but
because the Legislature viewed the proposed exemption as “duplicative” of established
law and wanted “to prevent possible confusion.” This is completely consistent with and
reinforces our conclusion that in order to give the words “upon his or her person” their
ordinary meaning, to attribute significance to every word and phrase in former section
12020, subdivision (a)(4), and to avoid a construction that would make either “carries” or
“upon his or her person” surplusage, the phrase “upon his or her person” does not include
a carried or adjacent container, such as the backpack upon which defendant was leaning.
The Attorney General principally relies upon People v. Dunn (1976) 61
Cal.App.3d. Supp. 12 (Dunn) for her contention that the knives in the backpack were
carried concealed upon defendant‟s person. There, the Appellate Department of the Los
Angeles Superior Court considered whether a defendant “„carrie[d] concealed upon his
person any pistol‟” in violation of former section 12025, subdivision (b), as it then
existed. Dunn took a suitcase containing a semiautomatic handgun with him into the
airport, and the gun was revealed by an X-ray of the suitcase. (Id. at p. Supp. 13.)
On appeal of his misdemeanor conviction, Dunn argued that the weapon was not
carried concealed upon his person. He asserted “that the Legislature meant, by the phrase
„upon his person,‟ a man‟s attire or clothing exclusive of handbags, attache [sic] cases,
suitcases, and the like. With respect to a woman, however, appellant argues that the
legislative intent was to include such items as purses and handbags within the meaning of
the phrase.” (Dunn, supra, 61 Cal.App.3d. at pp. Supp. 13–14.) The Dunn court noted
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that such an interpretation would lead to a “bizarre” and “unconstitutional” result that
would permit men, but not women, to carry concealed weapons in purses and attaché
cases. (Id. at p. Supp. 14.) The court concluded that “the Legislature intended to
proscribe the carrying of concealed weapons by both men and women and that a handgun
concealed in a suitcase and carried by appellant is sufficiently „upon his person‟ to
constitute a violation of section 12025.” (Ibid.) Finding no California authorities on
point, the court relied upon a New York Court of Appeals search and seizure case, People
v. Pugach (1964) 15 N.Y.2d 65 [255 N.Y.S.2d 833, 204 N.E.2d 176] (Pugach). Pugach
addressed the propriety of police officers searching the briefcase carried by a suspect they
put into their squad car. Pugach argued the search of his briefcase could not be deemed a
search incident to arrest because there was no showing of probable cause for arrest.
(Pugach, 15 N.Y.2d at pp. 68–69.) Over a vigorous dissent, the majority of the appellate
court concluded that the officers were justified in opening the briefcase as part of their
“routine „frisk‟” incident to Pugach‟s detention. (Id. at p. 69.) The majority opinion
stated, “The fact that the loaded gun was found concealed in the brief case, rather than in
a pocket of defendant‟s clothing, affords no ground for saying that this „frisk‟ was in
reality a constitutionally protected search. The loaded firearm concealed in the brief case
carried in the hands of the defendant was in the language of the statute „concealed upon
his person‟ (Penal Law, s 1897).” (Ibid.)
The Dunn court‟s reliance upon a New York search and seizure case to determine
the intent of California‟s Legislature was misplaced. To the extent Pugach may be read
as reflecting a determination of the intent of the New York Legislature in enacting the
cited statute containing the phrase “concealed upon his person,” the same intent cannot be
automatically imputed to the California Legislature. Dunn did not engage in any
examination of the language or legislative history of former section 12025 to determine
whether “carries concealed upon his person” included a container such as Dunn‟s
suitcase. Of course, the Dunn court did not have the benefit of the legislative history of
the proposed amendments to former section 12020 from the 1997–1998 Regular Session,
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upon which we have relied. In addition, the attention of the court in Dunn was apparently
focused upon addressing Dunn‟s “bizarre” and “unconstitutional” contention that men,
but not women, could legally carry guns concealed in certain containers. For all of these
reasons, as well as our own examination of the legislative intent underlying former
section 12020, subdivision (a)(4), we disagree with the conclusion of Dunn.
The Attorney General also argues that the knives in defendant‟s backpack were “at
his fingertips and the ease of access to the knives was the same” as if they were in his
clothing. We need not address the differences between carrying a knife in, for example, a
trouser or coat pocket, and defendant having a knife inside a pouch contained inside the
zipped backpack upon which he was leaning. It suffices to note that “[c]ourts may not
create a criminal offense by enlarging a statute or giving its terms false or unusual
meanings. Penal statutes may not be made to reach beyond their plain intent, covering
only crimes coming clearly within the statutory language.” (People v. Kozlowski (2002)
96 Cal.App.4th 853, 865.) In addition, it is not the function of the courts to judge the
wisdom of statutes or the way they are written. (Wells Fargo Bank v. Superior Court
(1991) 53 Cal.3d 1082, 1099; People v. Hill (1995) 37 Cal.App.4th 220, 226.) If the
Legislature had wanted to criminalize possession of a dirk or dagger that is concealed
inside a carried container, it could have expressly referred to dirks or daggers inside
carried containers or replaced the phrase “upon his or her person” with “on or about his or
her person.” The Legislature did not choose any of these alternatives, and for all of the
reasons set forth in this opinion, we conclude that “upon the person” does not include a
carried or adjacent container, such as the backpack upon which defendant was leaning.
That the Legislature did not outlaw carrying a dirk or dagger in a backpack is
understandable, given the utility of a knife in such lawful pursuits as fishing, hunting,
camping, picknicking and the like. But it did see fit to outlaw possession of a shuriken,
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three of which were found in defendant‟s backpack. (Former § 12020, subd. (a)(1)2 [“(a)
Any person in this state who does any of the following is punishable by imprisonment in a
county jail not exceeding one year or in the state prison: [¶] (1) . . . [P]ossesses . . . any
shuriken . . . .”]; Stats. 2008, ch. 699, § 18, p. 4835.) Had defendant been charged with a
violation of that subdivision, substantial evidence would have supported his conviction
based upon possession of the shurikens in his backpack.
In light of our conclusion that defendant did not violate former section 12020,
subdivision (a)(4), we need not address his remaining contentions. Because we reverse
for insufficiency of evidence, defendant may not be retried.
DISPOSITION
The judgment is reversed.
CERTIFIED FOR PUBLICATION.
MALLANO, P. J.
We concur:
ROTHSCHILD, J.
CHANEY, J.
2 The current equivalent statute is section 22410, which provides, “Except as
provided in Chapter 1 (commencing with Section 17700) of Division 2 of Title 2, any
person in this state who manufactures or causes to be manufactured, imports into the
state, keeps for sale, or offers or exposes for sale, or who gives, lends, or possesses any
shuriken is punishable by imprisonment in a county jail not exceeding one year or
imprisonment pursuant to subdivision (h) of Section 1170.”
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