Opinion
F073900
11-29-2017
THE PEOPLE, Plaintiff and Respondent, v. JOEY MICHAEL LORTA, Defendant and Appellant.
Laurie Wilmore, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Carlos A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. PCF331422)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Tulare County. Stephen Drew, Judge. (Retired Judge of the Tulare Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.). Laurie Wilmore, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Carlos A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Poochigian, J. and Meehan, J.
-ooOoo-
A jury convicted appellant Joey Michael Lorta of possession of a concealed dirk or dagger (Pen. Code, § 21310). In a separate proceeding, Lorta admitted two prior prison term enhancements (§ 667.5, subd. (b)) and allegations that he had a prior conviction within the meaning of the "Three Strikes" law (§ 667, subds. (b)-(i)).
All further statutory references are to the Penal Code.
On June 6, 2016, the court sentenced Lorta to an aggregate prison term of three years eight months consisting of a doubled lower term of two years eight months, and a one-year prior prison term enhancement.
On appeal, Lorta contends section 16470, which defines dirk or dagger, is unconstitutionally vague and overbroad on its face and unconstitutionally vague as applied to him. We affirm.
FACTS
On February 23, 2016, Porterville Police Officer Orlando Ortiz was on duty when he saw Lorta walking down the street with a red bandanna covering the lower part of his face. Ortiz stopped at an intersection and Lorta nodded at him while reaching into his pocket. Ortiz thought Lorta might be reaching for a weapon so he made a U-turn, stopped his car, and contacted Lorta. Ortiz decided to search Lorta, but before doing so, he asked Lorta if he had anything on him he should not have. Lorta told him he had a shank in his pocket, which the officer understood was a makeshift device used for stabbing or cutting. Ortiz reached into Lorta's right pants pocket and retrieved a flathead screwdriver with a shaved tip. Ortiz reached into Lorta's pocket a second time and retrieved a folding knife that Lorta stated he had forgotten about. Ortiz arrested Lorta for possession of burglary tools. Lorta was ultimately charged with possession of a dirk or dagger.
At trial, Lorta testified that he was going to hitchhike to his mother's house in Oildale, where he was living at the time, when he encountered Ortiz. According to Lorta, his mother would lock the door to her house and he used the screwdriver found in his pocket to open a window to get in. When he mentioned the shank, he was referring to the knife in his pocket.
Lorta also testified that he wore the red bandanna over his face because he was a member of the "Psychopath Cash Family," a group of followers of the rap group Insane Clown Posse, who wore clown makeup or a bandanna on their faces. In rebuttal, Ortiz testified that Lorta told him he was staying on Jaye Street in Porterville.
DISCUSSION
The Facial Overbreadth and Vagueness Challenges
Introduction
Section 21310 prohibits carrying a concealed dirk or dagger. Section 16470, in pertinent part, provides a " 'dirk' or 'dagger' means a knife or other instrument ... that is capable of ready use as a stabbing weapon that may inflict great bodily injury or death." (Italics added.)
Lorta contends the residual clause of section 16470, which is italicized above, is overbroad on its face because "it encompasses ordinary objects without regard to a person's intended use of an object, and now encroaches on constitutionally protected conduct such as the right to self-defense ensconced in the Second Amendment's right to bear arms." He cites District of Columbia v. Heller (2008) 554 U.S. 570 (Heller), McDonald v. City of Chicago (2010) 561 U.S. 742 (McDonald), and Johnson v. United States (2015) 576 U.S. ___ (Johnson) in support of these contentions.
Erroneously cited as United States v. McDonald in appellant's opening brief.
Lorta also contends the residual clause of section 16470 prohibits a person from possessing items of innocent use such as pens, pencils, and keys that a person is unlikely to believe are illegal to carry concealed. Thus, according to Lorta, the residual clause is unconstitutionally vague on its face because: (1) "[t]here is improper advance notice to citizens informing them that if they put an ordinary object that is capable of stabbing someone and causing great bodily injury into their pocket that they are committing a felony"; and (2) "[t]here are also insufficient guidelines to law enforcement to inform them of when objects are 'dirks or daggers' such that they may arrest the person on a felony offense." We reject these contentions. The Statutes
Section 12020 is the predecessor statute to sections 21310 and 16479. In People v. Mitchell (2012) 209 Cal.App.4th 1364 (Mitchell), the court stated the following with respect to section 12020:
Section 21310 superseded former section 12020, subdivision (a)(4) which made it unlawful to carry a concealed dirk and dagger. Section 16470 superseded former section 12020, subdivision (c)(24), which defined a dirk and dagger in the same terms as section 16470. (Stats. 2008, ch. 699, § 18, pp. 3833-3838.) Section 12020 was repealed effective January 1, 2012, and replaced, in part, by sections 21310 and 16470. (Stats. 2010, ch. 711, §§ 4, 6, pp. 4033-4035, 4043-4226.)
"[Section 12020] generally proscribes the concealed carrying of a knife, but provides exceptions for (1) a knife placed in a sheath and visibly suspended from the waist and (2) a nonswitchblade folding or pocketknife if the blade is not exposed and locked. [Citations.] The Legislature's purpose in enacting the statute was to combat the dangers arising from the concealment of weapons. [Citation.] ... [¶] [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. [Citation.] ...
"The statute does not require that the defendant intend to use the concealed dirk or dagger as a stabbing instrument. (People v. Rubalcava (2000) 23 Cal.4th 322, 331 (Rubalcava ).) ... Although a 'defendant's intended use of the instrument [is not] an element of the offense, ... 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." ... A defendant who does not know that he is carrying the weapon or that the concealed instrument may be used as a stabbing weapon is therefore not guilty ....' [Citation.]
"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.' " (Mitchell, supra, at pp.1371-1372.)The Rubalcava Decision
"When evaluating a facial challenge to the constitutional validity of a statute, we consider the text of the statute itself, not its application to the particular circumstances of the individual. [Citation.] If a statute is constitutional in its general and ordinary application, the statute is not facially unconstitutional merely because 'there might be some instances in which application of the law might improperly impinge upon constitutional rights.' " (Mitchell, supra, 209 Cal.App.4th at pp. 1373-1374.)
In Rubalcava, the defendant was convicted of possessing a dirk or dagger based on his possession of a putty knife with a three-inch blade, sharpened on one side, that he claimed was used as a letter opener and not a weapon. (Rubalcava, supra, 23 Cal.4th at pp. 325-326.) On appeal, the court considered the defendant's claim that the intent to use the concealed instrument as a stabbing weapon was an element of the crime of carrying a concealed dirk or dagger in violation of section 12020. (Id., at p. 331.) In rejecting the defendant's overbreadth challenge to section 12020, the Rubalcava court stated:
"Rubalcava's overbreadth challenge fails, even assuming arguendo that the overbreadth doctrine applies outside the First Amendment context. [Citation.] A statute is only overbroad if it 'prohibits a " 'substantial amount of constitutionally protected conduct.' " ' [Citation.] Rubalcava asserts that the omission of a specific intent requirement would result in the substantial infringement of rights guaranteed by the First and Fourth Amendments. In support, he cites general examples of the statute's overbreadth.[] He, however, describes no instances where the statute
actually infringes on constitutionally protected conduct, and we can think of none. Even though section 12020 may seem overbroad as a matter of common sense, we will not find it unconstitutionally overbroad without some concrete impairment of constitutionally protected conduct." (Rubalcava, supra, 23 Cal.4th at p. 333.)
The court was referring to Rubalcava's argument "that the Legislature could not have intended to make a felon out of '[t]he tailor who places a pair of scissors in his jacket[,] ... the carpenter who puts an awl in his pocket' [citation], 'the auto mechanic who absentmindedly slips a utility knife in his back pocket before going out to lunch[,] ... the shopper who walks out of a kitchen-supply store with a recently purchased steak knife "concealed" in his or her pocket, ... 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, or ... the recreational user who tucks his "throwing knives" into a pocket as he heads home after target practice or a game of mumblety-peg.' " (Rubalcava, supra, 23 Cal.4th at p. 331.)
In rejecting the defendant's claim that the absence of a specific intent requirement rendered section 12020 void for vagueness in violation of due process, the court stated:
"Rubalcava identifies no vague terms in the statute that may be open to multiple interpretations. Instead, he claims the resulting criminalization of 'otherwise wholly innocent conduct' would make section 12020 unconstitutionally vague. [Citation.] The mere fact that a statute may criminalize previously legal conduct does not, however, make a statute unconstitutionally vague especially where, as here, the statutory language and legislative history indicate the Legislature intended such a result. [Citation.] In any event, we have previously held that section 12020 is not unconstitutionally vague despite the absence of a specific intent element and see no reason to reconsider this determination." (Rubalcava, supra, 23 Cal.4th at pp. 332-333.)Rubalcava's Holding That Former Section 12020 Was Not Unconstitutionally Overbroad on Its Face Is Binding on This Court
Lorta acknowledges this court is bound by the decisions of the California Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) However, he also notes that the only reason the court did not find former section 12020 overbroad in Rubalcava "was because it could think of no constitutionally protected right the [statute] prohibited." After Rubalcava was decided, the United States Supreme Court in Heller, supra, 554 U.S. at page 595 recognized the right to bear arms as a fundamental individual right. In McDonald, supra, 561 U.S. at pages 750, 791, the court held that the Second Amendment right to bear arms is applicable to the states. Lorta relies on these cases to contend Rubalcava's holding, that former section 12020 was not overbroad, is not binding on this court because it is now clear that section 16470 infringes on the constitutional right to bear arms. We disagree.
In Mitchell, the court rejected the defendant's contention that former section 12020 violated the constitutional right to bear arms. In doing so, the court concluded "the statute does not run afoul of the Second Amendment because it is narrowly tailored to serve the important governmental interest of preventing exposure to the risk of surprise attacks and does not burden the right to bear arms in self-defense beyond what is reasonably necessary to serve that interest." (Mitchell, supra, 209 Cal.App.4th at pp. 1375-1376.) The court also noted that the statute still provided a reasonable means of carrying a knife for self-defense because it permitted the carrying of a sheathed knife and a concealed folding knife or a pocketknife. (Id. at p. 1376.) We agree with Mitchell that former section 12020 did not infringe on the right to bear arms. Thus, we reject Lorta's contention that Heller and McDonald provide a basis for this court not to follow Rubalcava and we conclude that section 16470 is not unconstitutionally overbroad on its face. Rubalcava's Holding That Former Section 12020 Was Not Unconstitutionally Vague on Its Face Is Binding on This Court
"A law is void for vagueness only if it 'fails to provide adequate notice to those who must observe its strictures' and ' "impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application." ' " (Rubalcava, supra, 23 Cal.4th at p. 332.)
In Johnson, the United States Supreme Court considered a facial vagueness challenge to the Armed Career Criminal Act of 1984 (ACCA). The ACCA provided more severe punishment for a defendant convicted of being a felon in possession of a firearm "if he [had] three or more previous convictions for a 'violent felony,' a term defined to include any felony that 'involves conduct that presents a serious potential risk of physical injury to another.' " (Johnson, supra, 576 U.S. ___ .) The ACCA defined " 'violent felony' " as " 'any crime punishable by imprisonment for a term exceeding one year ... that — [¶] (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or [¶] (ii) is burglary, arson, or extortion, involves use of explosives or otherwise involves conduct that presents a serious potential risk of physical injury to another.' " (Id. at pp. 2555-2556.) The portion italicized above became known as the ACCA's residual clause. (Id. at p. 2556.)
In Johnson, the court found two things combined to make the ACCA's residual clause unconstitutionally vague: (1) it left grave uncertainty about how to estimate the risk posed by a crime because it tied the judicial assessment of risk to a judicially imagined "ordinary case" rather than real-world facts or statutory elements; and (2) it left uncertainty about how much risk it takes to qualify as a violent felony. As to this latter consideration, the court noted that "the residual clause forces courts to interpret 'serious potential risk' in light of the four enumerated crimes—burglary, arson, extortion, and crimes involving the use of explosives. These [crimes were] 'far from clear in respect to the degree of risk each poses.' " (Johnson, supra, 576 U.S. at p. ___ .) Thus, the court concluded, "By combining indeterminacy about how to measure the risk posed by a crime with indeterminacy about how much risk it takes for the crime to qualify as a violent felony, the residual clause produces more unpredictability and arbitrariness than the Due Process Clause tolerates." (Ibid.)
Lorta contends this court should follow Johnson and strike as unconstitutionally vague the residual clause in the instant case because it makes it a felony to possess everyday objects such as pens, pencils, and keys. Presumably, the residual clause here produces as much unpredictability and arbitrariness as the clause at issue in Johnson.
Johnson is inapposite because that case dealt with the vagueness of a residual clause in setting sentencing standards, an issue not involved here. In any event, Lorta's vagueness contention is based on the faulty premise that the residual clause here prohibits the possession of concealed everyday items like pens, pencils, and keys because they can be used as a stabbing instrument capable of inflicting great bodily injury. However, the residual clause here does not make it a felony to possess these objects concealed if, as noted earlier, they are possessed with the intent to use them "in accordance with [the object's] ordinary legitimate design." (People v. Grubb (1965) 63 Cal.2d 614, 621, fn. 9 (Grubb).) Further, the wording of the residual clause here is clear—it prohibits carrying concealed only those instruments that can be used as a stabbing instrument and are capable of inflicting great bodily injury or death. Lorta concedes that none of the terms in section 16470's residual clause are vague, i.e., "particularly difficult to understand." Thus, there is no merit to Lorta's contention that the statute is vague because it does not provide notice regarding what instruments capable of stabbing are prohibited from being concealed or that it results in arbitrary and overbroad enforcement. Nor does Johnson provide a basis for this court to depart from the holding in Rubalcava that former section 12020 was not facially vague. Thus, in accord with Rubalcava, we conclude that section 16470's definitions of dirk and dagger is not unconstitutionally vague on its face.
Section 16470 Is Not Unconstitutionally Vague as Applied to Lorta
Lorta contends that the following circumstances demonstrate that section 16470 is constitutionally vague as applied to him: (1) Ortiz arrested him for possession of burglary tools, not for possessing a dirk or dagger; (2) Lorta testified that he never noticed the tool was sharpened; and (3) during deliberations, the jury's only note to the court stated: "Please verify what a concealed dirk or dagger is," and this may have reflected they were incredulous that " 'any instrument capable of stabbing' really is the law." We disagree.
Because Lorta's contention involves facts that are controverted and does not present a pure question of law, he forfeited this issue. (People ex rel. Totten v. Colonia Chiques (2007) 156 Cal.App.4th 31, 40.)
Nevertheless, even if this issue were properly before us, we would reject it. An "as applied" challenge "involves an otherwise facially valid measure that has been applied in a constitutionally impermissible manner." (California Redevelopment Assn. v. Matosantos (2011) 53 Cal.4th 231, 277 (conc. & dis. opn. of Cantil-Sakauye, C.J.).) This type of challenge "contemplates analysis of the facts of a particular case or cases to determine the circumstances in which the statute or ordinance has been applied and to consider whether in those particular circumstances the application deprived the individual to whom it was applied of a protected right." (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084.)
On appeal, we must resolve all conflicts in the evidence, and draw all reasonable inferences, in favor of the judgment. (People v. Edwards (2013) 57 Cal.4th 658, 715.)
As noted earlier, Lorta concedes that none of the language in section 16470 is vague. Additionally, we note that, as discussed above, sections 21310 and 16470 do not prohibit the concealed possession of everyday items like pens, pencils, and keys if they are possessed with the intent to use them "in accordance with [their] ordinary legitimate design." (Grubb, supra, 63 Cal.2d at p. 621, fn. 9.)
Here, when Ortiz asked Lorta if he had anything on him that he should not have, Lorta responded that he had a shank, i.e., "a makeshift device ... used for stabbing or cutting." Ortiz then retrieved a flathead screwdriver with a shaved tip from one of Lorta's pockets. These circumstances clearly indicate Lorta was aware that it was unlawful to possess the shank.
Lorta's contention that he did not notice that the tip of the screwdriver was shaved does not alter this conclusion because he acknowledged knowing the screwdriver was a shank, an item clearly proscribed from being carried concealed. In any event, by referring to the screwdriver as a shank, he implicitly acknowledged he was aware it had been altered. Further, that Lorta was arrested only for possession of burglary tools is irrelevant because Ortiz had probable cause to arrest him for this offense and the district attorney, not the officer, was responsible for determining what charges to prosecute. (Gananian v. Wagstaffe (2011) 199 Cal.App.4th 1532, 1542-1543.) Moreover, Lorta's contention that the jury may have been incredulous that he was charged with carrying a concealed dirk or dagger for carrying a sharpened screwdriver is pure speculation. But even if true, this would not be a basis for finding that the statute was vague as applied to Lorta. Thus, we conclude that section 16470 was not unconstitutionally vague as applied to Lorta.
DISPOSITION
The judgment is affirmed.