People v. Hester

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.

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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

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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

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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

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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.

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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

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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

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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

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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

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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.

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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

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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:

“<Give only if object may have innocent uses.> [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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