Just this week, the California Court of Appeals for the 2nd District reversed the conviction of a defendant who was arrested in a Los Angeles park for carrying a concealed dirk or dagger in his backpack. The reversal allowed the defendant to avoid a 365 day term of incarceration and three years of probation. The California Penal Code prohibits any person from carrying concealed “upon his person” any dirk or dagger. [Penal Code § 21310, formerly Penal Code § 12020 (a)(4)] The Penal Code goes on to define 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.”
The police responded to a call of a possible burglary suspect in Barnsdall Park in Los Angeles at about 2:30 in the morning. They found the defendant crouched in the corner of an enclosed structure within the park, leaning on his closed backpack. The defendant complied with the officers’ instructions to walk to them and be detained. One of the officers unzipped the defendant’s backpack and found three knives. The officer would later testify that he recognized the knives as throwing knives, based on his martial arts experience. The defendant was arrested, and the case subsequently went to a jury trial.
This penal code section consists of two fairly straight forward elements. The defendant must have a knife which meets the definition of a dirk or dagger, and it must be concealed upon his or her person. In this case, there was no argument by the defendant that the knives he carried didn’t fall within the definition of dirk or dagger. However, there was a question raised as to whether the knives were carried concealed upon his person. During jury deliberations, the jury asked for clarification from the court on the definition of “upon his person.” The court provided the following definition: “On his person includes upon the body of a person, or the attire or clothing, or a bag or container carried by the person.” Based on that definition, the jury convicted the defendant for carrying the knives concealed in his backpack.
Luckily for this defendant, the Court of Appeal disagreed with the trial court’s definition of “upon his person.” The Court of Appeals decided that “upon his person” means only physically on the person or in his clothing, believing that to be the legislative intent of the statute. They opined that had the legislature wanted to outlaw carrying a dirk or dagger in any type of bag or attaché, they would have replaced the phrase “upon his person” with “on or about the person.” While the Court of Appeals acknowledges that a dirk or dagger carried in a backpack may be just as dangerous as one carried in a defendant’s pocket, it is the not the Court’s place to create a criminal violation by enlarging a statute. Had the Court of Appeals allowed the trial court’s definition of “upon his person” to stand, it would have severely restricted the public’s ability to transport a knife for any number of lawful purposes. It would criminalize the transporting of a cake knife in a picnic basket, a scaling knife in a fishing tackle box, and a work knife carried in a tool bag. The Court of Appeals recognized that this was clearly not the legislative intent of the statute and reversed this defendant’s conviction.
Based on People v. Pellecer
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