People v. Rubalcava

WERDEGAR, J., Concurring

The majority acknowledges that the current statutory prohibition on carrying a concealed “dirk or dagger” (Pen. Code, § 12020, subds. (a), (c)(24)) may be “overbroad as a matter of common sense . . • ra ■ • . due to the wide range of otherwise innocent conduct it proscribes” (maj. opn., ante, at p. 333), but holds the defect is not a constitutional one and the remedy, if any, must therefore be legislative. I agree; I write separately only with the hope of pointing the way toward a possible solution.

In 1993, responding to judicial pleas for a clear definition of the terms, the Legislature set out to define “dirk or dagger” as used in Penal Code section *337 12020. (Assem. Com. on Public Safety, analysis of Assem. Bill No. 1266 (1993-1994 Reg. Sess.) as amended Mar. 16, 1993, p. 2; see People v. Wharton (1992) 5 Cal.App.4th 72, 77, fn. 3 [ 6 Cal.Rptr.2d 673 ]; People v. Pettway (1991) 233 Cal.App.3d 1067, 1070, fn. 1 [ 285 Cal.Rptr. 147 ].) The resulting definition (“a knife or other instrument with or without a hand-guard that is primarily designed, constructed, or altered to be a stabbing instrument designed to inflict great bodily injury or death” [Stats. 1993, ch. 357, § 1, p. 2155]) was clear enough, but ultimately proved too narrow and too difficult of proof. Prosecutors complained that “since we can never show that the primary purpose of a butcher knife, hunting knife, survival knife, ice pick, etc., is to cause death or great bodily injury by stabbing, we cannot obtain convictions under the statute,” even when the person was carrying the concealed instrument for potential use as a weapon. (Sen. Rules Com., 3d reading analysis of Assem. Bill No. 1222 (1995-1996 Reg. Sess.) as amended May 31, 1995, p. 4.)

In 1995, the Legislature sought to cure this defect by replacing “primarily designed, constructed, or altered” with a much more inclusive reference to instruments “capable of ready use” as a lethal stabbing weapon/(Stats. 1995, ch. 128, § 2.) Though slightly narrowed in 1997 to exclude nonlocking folding knives (see maj. opn., ante, at p. 330, fn. 5), “capable of ready use as a stabbing weapon” remains the general characteristic marking a dirk or dagger under Penal Code section 12020. This broad definition, unfortunately, makes a felon, at least in theory, of “ ‘the tailor who places a pair of scissors in his jacket and the carpenter who puts an awl in his pocket’ [citation], or the auto mechanic who absentmindedly slips a utility knife in his back pocket before going out to lunch [citation], ... the shopper who walks out of a kitchen-supply store with a recently purchased steak knife ‘concealed’ in his or her pocket, or the parent who wraps a sharp pointed knife in a paper towel and places it in his coat to carry into a PTA potluck dinner . . . .” (People v. Aubrey (1999) 70 Cal.App.4th 1088, 1102 [ 83 Cal.Rptr.2d 209 ], quoting People v. Oskins (1999) 69 Cal.App.4th 126, 138 [ 81 Cal.Rptr.2d 383 ].)

The Aubrey-Oskins solution to this overbreadth problem—requiring intent to carry the instrument for use as a weapon—cannot be adopted judicially for the reason explained in the majority opinion: it is inconsistent with the clear legislative intent. (Maj. opn., ante, at pp. 330-331.) 1 Moreover, a universal requirement that the People prove intent to use the dirk or dagger *338 as a weapon would threaten to narrow the enforceable scope of Penal Code section 12020 unwisely. Carrying concealed on the person a true dagger—an instrument primarily intended for, and suitable for little but, stabbing people—is a dangerous, unjustified act regardless of the person’s immediate intent. It is the policy of Penal Code section 12020 to prohibit the possession and carrying of all such instruments “common to the criminal’s arsenal” (People v. Grubb (1965) 63 Cal.2d 614, 620 [ 47 Cal.Rptr. 772 , 408 P.2d 100 ]) because of the unwarranted danger their very presence creates to public safety, for “[e]asy access to instruments of violence may very well increase the risk of violence.” (Ibid.) To require proof of intent to use a dagger as a weapon would be inconsistent with that policy.

It appears from this history that any single definition of “dirk or dagger” is likely to be either too narrow (leaving out true daggers carried concealed for any reason as well as other sharp instruments carried as potential weapons) or too broad (taking in a wide variety of useful tools carried for innocent purposes). Perhaps, however, a double definition can be crafted that avoids both these pitfalls. It would seem consistent with all the legislative goals to define “dirk or dagger” as including both (i) any knife or other instrument primarily designed, constructed, or altered to be a stabbing instrument that may inflict great bodily injury or death, and (ii) any knife or other instrument capable of ready use as a stabbing weapon that may inflict great bodily injury or death, when carried for potential use as a weapon. Under such a definition those who carry, concealed on their persons, knives suitable solely or primarily for stabbing would be subject to prosecution without proof of their intent, but those carrying kitchen knives, fishing knives, awls, or scissors, for example, would be subject to the penal sanctions of Penal Code section 12020 only if the circumstances were such as to create the inference (or, of course, if direct evidence showed) their contemplated use for the instrument was stabbing others, rather than preparing food, scaling fish, cutting cloth or other civil uses.

With this suggestion for possible legislative revision, I join the majority in holding that the current statutory prohibition on carrying a concealed dirk or *339 dagger does not require proof of, or a jury instruction concerning, the defendant’s intended use of the instrument as a weapon.

By its use of the artfully ambiguous phrase “intentionally carry concealed” (maj. opn., ante, at p. 332), the majority opinion apparently leaves open the question whether Penal Code section 12020, subdivision (a) requires proof that the defendant intentionally concealed the *338 dirk or dagger on his person, or only that the defendant intentionally carried the instrument, which was in fact not visible. Neither the statutory language nor the legislative history is explicit on this point. Reading an intent-to-conceal element into the statute may not be consistent with its overall purposes, as carrying a concealed dagger is dangerous to public safety whether or not the bearer purposely concealed the weapon. Imposing an intent-to-conceal requirement would, however, be an effective way of narrowing the statute’s over-broad scope; the carpenter who puts an awl in his pocket, or the parent carrying a kitchen knife to the PTA potluck, would probably not be found to have intentionally concealed the instrument.