Opinion
NOT TO BE PUBLISHED
Santa Clara County Superior Court Nos. BB512851 & BB513564
McAdams, J.
Defendant Shane Walton appeals from an order revoking probation and committing him to state prison. He contends that that trial court erred when it found that the allegation that he possessed a concealed dirk or dagger in violation of Penal Code section 12020, subdivision (a)(4) was true. We agree and remand for re sentencing in light of the court’s other true findings at the probation revocation hearing. In view of our conclusion, we do not reach defendant’s contention that his trial counsel was ineffective for failing to object when the court failed to state its reasons for imposing a prison sentence rather than reinstating probation.
All further statutory references are to the Penal Code, unless otherwise stated.
Factual and Procedural History
Case Number BB512851 – Possession of a Controlled Substance in March 2005
In February 2005, a Mountain View police officer stopped a car on suspicion the driver was under the influence. Defendant, who was on parole, was a passenger in the car. During the stop, the officer conducted a parole search of defendant and found 1.6 grams of rock cocaine inside his left front jacket pocket.
On February 16, 2005, the district attorney filed a criminal complaint, charging defendant with one count of possession of a controlled substance, cocaine base (Health & Saf. Code, § 11350, subd. (a)). The complaint also alleged one strike prior (§§ 667, subds. (b)-(i); 1170.12) and three prison priors (§ 667.5, subd. (b)).
The strike prior allegation alleged that defendant had been convicted of committing an assault with a deadly weapon (§ 245, subd. (a)(1)).
The prison prior allegations alleged that defendant had served time in prison for two vehicle thefts (Veh. Code, § 10851, subd. (a)) and a second degree burglary (§ 459, 460, subd. (b)).
On March 1, 2005, after the court granted the prosecution’s request to strike the strike prior, defendant pleaded guilty to possession of cocaine base and admitted the prison priors. The court suspended imposition of sentence and placed defendant on probation under the provisions of Proposition 36 for two years.
Proposition 36, the Substance Abuse and Crime Prevention Act of 2000 (Act) was approved by voters on November 7, 2000. The Act took effect on July 1, 2001, and is codified at sections 1210, 1210.1, 3063.1, and division 10.8 (commencing with § 11999.4) of the Health and Safety Code.
Case Number BB513564 – Auto Burglary in March 2005
On March 13, 2005, defendant used a “slim jim” to break into a car in a residential carport in Mountain View and damaged the car’s glove box.
On March 30, 2005, the district attorney filed a criminal complaint, charging defendant with one count of vehicle burglary (§§ 459-460, subd. (b)). The complaint alleged the same strike prior as the previous complaint (§§ 667, subds. (b)-(i); 1170.12) and four prison priors (§ 667.5, subd. (b)).
The four prison priors included the three offenses alleged in the previous complaint and another second degree burglary (§§ 459, 460, subd. (b)).
On May 11, 2005, the court joined case numbers BB512851 and BB 513564. The court found a violation of probation in case number BB512851 and ordered a further report from the probation department. In light of the new charges, the court found defendant unamenable to Proposition 36 probation.
On July 6, 2005, defendant pleaded no contest to the car burglary and admitted the prison priors. The district attorney told the court the strike prior had been stricken in the previous case.
Sentencing in Both Cases
On August 4, 2005, the court suspended imposition of sentence and placed defendant on probation for three years in case number BB513564 (the car burglary). The conditions of his probation required, among other things, that he pay fines and fees, that he pay $476.01 in victim restitution for the damage to the glove box, that he not possess a firearm, and that he serve 198 days in jail.
In case number BB512851 (possession of cocaine), the court revoked probation and terminated the Proposition 36 program, reinstated probation, and extended it to three years coterminous with the grant of probation in case number BB513564, under the same terms and conditions as that case.
Probation Violation in December 2006
At 2:13 a.m. on December 13, 2006, Palo Alto police stopped defendant for riding a bicycle without a light. A computer check revealed that he as on parole for one of the prior burglaries; a parole search uncovered two pipes that are used to smoke crack cocaine. The officer cited defendant for two misdemeanor violations of Health and Safety Code section 11364 for possession of paraphernalia. The District Attorney decided not to file criminal charges arising out of this incident, but referred the matter for revocation of defendant’s parole.
Probation Violation in May 2007
On May 22, 2007, a Mountain View police officer stopped defendant for riding his bicycle without a light at night. The officer did a parole search and found a “kubaton” in defendant’s right front pants pocket. A kubaton is a “small cylindrical piece of metal” that is typically used to conceal weapons or drugs. The officer unscrewed the end of the kubaton and found a three-inch blade inside, attached to the metal end cap. The blade was sharp on both sides, came to a sharp point, and could be screwed into the base of the kubaton to be used as a weapon. Defendant told the officer that it was a knife, that his boss had given it to him, and that he used it in his landscaping job to work on sprinklers. The officer arrested defendant for possession of a dirk or dagger.
Defendant was charged with felony possession of a concealed dirk or dagger. The charges were subsequently reduced to a misdemeanor. Defendant was also charged with violating his probation in case numbers BB512851 and BB513564. Probation was revoked and he remained in custody.
Petition to Modify Terms of Probation
In September 2007, the probation department petitioned to modify the terms of defendant’s probation. The petition alleged the following “circumstances of violation”: (1) defendant was arrested for possession of a dirk or dagger on May 22, 2007; (2) defendant was cited for possession of drug paraphernalia on December 13, 2006; (3) defendant failed to report to the probation office on February 1, 2007, February 12, 2007, and May 16, 2007; (4) defendant tested positive for cocaine on March 21, 2006, tested positive for marijuana on October 20, 2006, and December 21, 2005, and submitted a diluted sample on April 14, 2006; (5) defendant failed to make regular payments and owed $236 in victim restitution; and (6) defendant owed $2,722.15 in fees and fines in case number BB513564 and $557.05 in fines and fees in case number BB512851.
In an interview with his probation officer on August 16, 2007, defendant admitted possessing the kubaton and the item inside the kubaton, but denied that it was a weapon. He also admitted possessing crack pipes and failing to report to his probation officer as alleged. He explained that his disabled mother had recently been poisoned by her caregiver and he was the only one who could take care of her. He also stated that he did not have enough money to pay victim restitution, fines, or fees because he had to pay for his mother’s medication, food and other expenses.
On November 19, 2007, the court conducted a hearing on the petition to modify probation. David Fisher, the arresting officer from the May 2007 incident, and Andrew Muir, defendant’s probation officer, testified. Muir testified that he spoke with defendant after he failed to report on February 12, 2007. Defendant said he was working as a landscaper, did not report because he was stuck at work, and could not report the following day because of his work schedule. Muir also spoke to defendant after he failed to report on May 16, 2007. Defendant stated that he had not reported because he was taking care of his mother, who had been poisoned by her caregiver. Muir investigated this claim and determined that defendant’s mother had been victimized by her caregiver. Muir told the court that defendant had made the final victim restitution payment in September 2007, but still had not paid the other fines and fees. Muir also explained that a probationer may dilute a urine sample by drinking large amounts of water to hide drug use and that the probation department considers a diluted sample the equivalent of a positive drug test.
The court concluded that all of the circumstances in violation of probation had been proven true, except the allegation regarding the failure to pay victim restitution. The court revoked probation and sentenced defendant to three years in prison in case number BB513564 (car burglary). The sentence was based on the two-year mid-term, plus one year for one of the prison priors. The court struck the punishment for the remaining prison priors pursuant to section 1385. In case number BB512851 (possession of cocaine base), the court revoked probation and sentenced defendant to a two-year prison term, to be served concurrent with the sentence in case number BB513564, and struck the punishment for the prison priors pursuant to section 1385.
Discussion
Probation Violation Based on Alleged Possession of a Dirk or Dagger
Parties’ Contentions
Defendant argues that the principal basis for revoking his probation was the allegation that he possessed a concealed dirk or dagger on May 22, 2007, in violation of section 12020, subdivision (a)(4). He asserts that the court erred when it concluded that the prosecution had proven this circumstance because, as stated in In re Luke W. (2001) 88 Cal.App.4th 650, the item he was carrying on May 22, 2007, was not a dirk or dagger. He contends this error requires reversal and remand for re sentencing because both the probation department’s decision to seek revocation of probation and the trial court’s decision to revoke probation and impose a prison sentence were “based in large part on the most recent and most serious alleged violation” involving the possession of a dirk or dagger. Defendant argues that there is a reasonable probability that if the court had properly concluded that the item at issue was not a dirk or dagger, it would have reinstated probation or imposed a lesser prison term, since his other probation violations were relatively minor.
The Attorney General concedes that the object at issue was not a dirk or dagger within the meaning of section 12020, subdivision (a)(4) and asserts that it came within the pocketknife exception in subdivision (c)(24) of the statute. He argues that the court did not abuse its discretion when it revoked probation because it found other valid probation violations that supported its decision to revoke probation.
Standard of Review
Penal Code section 1203.2, subdivision (a) allows for revocation of probation “if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation officer or otherwise that the person has violated any of the conditions of his or her probation,…” “[A] grant of probation is not a matter of right but an act of clemency, and a decision to revoke probation when the defendant fails to comply with its terms rests within the broad discretion of the trial court.” (People v. Covington (2000) 82 Cal.App.4th 1263, 1267.) The factual findings underlying the court’s decision must be shown by a preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 447.)
“Sentencing choices such as the one at issue here, whether to reinstate probation or sentence a defendant to prison, are reviewed for abuse of discretion. ‘A denial or a grant of probation generally rests within the broad discretion of the trial court and will not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary or capricious manner.’ [Citation.] A court abuses its discretion ‘whenever the court exceeds the bounds of reason, all of the circumstances being considered.’ (People v. Giminez (1975) 14 Cal.3d 68, 72….) We will not interfere with the trial court’s exercise of discretion ‘when it has considered all facts bearing on the offense and the defendant to be sentenced.’ ” (People v. Downey (2000) 82 Cal.App.4th 899, 909-910.)
Under the abuse of discretion standard, “[w]e defer to the trial court’s factual findings so long as they are supported by substantial evidence, and determine whether, under those facts, the court abused its discretion. If there is no evidence to support the court’s findings, then an abuse of discretion has occurred.” (Tire Distributors, Inc. v. Co brae (2005) 132 Cal.App.4th 538, 544.)
Analysis
We begin by addressing the Attorney General’s concession. Section 12020, subdivision (a)(4) provides that any person who “[c]arries concealed upon his or her person any dirk or dagger” is guilty of an offense that may be punished as either a misdemeanor or a felony. Subdivision (c)(24) of the statute provides: “As used in this section, 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. A nonlocking folding knife, a folding knife that is not prohibited by Section 653k, 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.”
Subdivision (c)(24) of section 12020 was amended in 1997. (Stats. 1997, ch. 593, § 1.5.) The “intent of the amendment was to avoid criminalizing the carrying of knives that are not capable of ready use because they are carried in a closed, secured state.” (In re Luke W., supra, 88 Cal.App.4th 650, 656.) “ ‘Under the … amendment folding knives and pocket knives could only fit the definition of “dirk or dagger,” that is, of “being capable of ready use as a stabbing weapon that may inflict great bodily injury or death,” if “the blade of the knife is exposed and locked into position.” ’ ” (Id. at pp. 653-654.) “Although they may not have folding blades, small knives obviously designed to be carried in a pocket in a closed state, and which cannot be used until there have been several intervening manipulations, comport with the implied legislative intent that such knives do not fall within the definition of proscribed dirks or daggers but are a type of pocketknife excepted from the statutory proscription.” (Id. at p. 656.)
Defendant argues and the Attorney General concedes that the knife inside the kubaton in this case was not a dirk or dagger within the meaning of the statute, since it could only be used after the end cap has been “unscrewed” from the kubaton. Moreover, the blade could not be easily extracted from the container without manual manipulation with both hands. We agree that the knife inside the kubaton was not capable of ready use as a stabbing weapon, since it was in a closed state inside the kubaton and had to be screwed into the base of the kubaton before being used as a knife.
Because the object seized from defendant does not fall within the statutory definition of a “dirk or dagger,” there was insufficient evidence to support the court’s finding that defendant had violated his probation on May 22, 2007, when he was arrested for possession of a concealed dirk or dagger. We therefore accept the Attorney General’s concession and conclude that the trial court erred when it found that the allegation that defendant had violated his probation by carrying a concealed dirk or dagger was true.
As we noted above, defendant argues that there is a reasonable probability that if the court had properly concluded that the item at issue was not a dirk or dagger, it would have reinstated probation or imposed a lesser prison term, since his other probation violations were relatively minor. The Attorney General counters that the court did not abuse its discretion when it revoked probation because it found other valid probation violations that supported its decision to revoke probation.
Defendant does not challenge the court’s findings that he violated probation (1) when he was cited for possession of drug paraphernalia in December 2006; (2) when he failed to pay fines and fees ($2,711.15 in case number BB513864 and $557.05 in case number BB512851); (3) when he failed to report to his probation officer three times in February and May 2007; and (4) when he tested positive for drug use on December 21, 2005, March 21, 2006, and October 20, 2006, and submitted the presumptively positive diluted sample on April 14, 2006. However, the most recent positive drug test was more than a year old at the time of the revocation hearing in November 2007. In addition, Probation Officer Muir did not petition to revoke probation after defendant missed the two appointments in February 2007. He testified that he would not have petitioned to revoke defendant’s probation because he missed his appointment on May 16, 2007. Muir told the court that he had investigated and confirmed that defendant’s stated reason for missing that meeting was true. He also testified that the “dirk or dagger arrest” on May 22, 2007, was “the straw that broke the camel’s back” and that it is “possible” that he would have worked with defendant a bit more on probation absent that offense. At the probation revocation hearing, the prosecution urged the court to impose a four-year sentence and defense counsel argued for a two-year sentence. The court adopted the probation department’s sentencing recommendation and imposed a three-year aggregate sentence. The court did not emphasize any one violation in imposing the prison sentence.
In sentencing defendant, the court relied on a true finding of a probation violation that we have found invalid. Although the court might, in the exercise of its discretion, revoke probation and impose a prison sentence based on the remaining findings alone, on this record, we cannot conclude that the court would have sentenced defendant to state prison for three years based solely on the failure to report, the positive drug tests, the possession of two crack pipes, and the failure to pay fines and fees. Accordingly, we remand for re sentencing. Moreover, we do not express any opinion concerning the appropriate sentence on remand. (In re Babak S. (1993) 18 Cal.App.4th 1077, 1089-1091; People v. Self (1991) 233 Cal.App.3d 414, 419.)
Ineffective Assistance of Counsel
Defendant contends his counsel was ineffective for failing to object when the trial court failed to state its reasons for imposing a prison sentence rather than reinstating probation. Citing People v. Cotton (1991) 230 Cal.App.3d 1072, 1081, he argues that case law requires that, upon finding a violation of probation, the court must state its reasons for choosing imprisonment rather than reinstating probation. He asserts, “Had the court complied with this requirement, we might have some idea as to the reasons for the court’s unfavorable exercise of discretion.”
Since we remand for re sentencing, we shall not reach this contention, except to remind the parties and the court that the decision to revoke probation and impose a prison sentence is a sentencing choice for which a reason must be stated. (People v. Cotton, supra, 230 Cal.App.3d1072, 1080-1081, and cases cited; Pen. Code, § 1170, subd. (c); Cal. Rules of Court, rules 4.405(6), 4.406(b)(2).)
Disposition
The judgment is reversed. Since the court erred in finding a violation of section 12020, subdivision (a)(4), the matter is remanded to the trial court for re sentencing in light of its other findings.
WE CONCUR: Rushing, P.J., Mihara, J.