Opinion
A155160
03-04-2020
THE PEOPLE, Plaintiff and Respondent, v. BRETT CHRISTOPHER BANUELOS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51806389)
Brett Christopher Banuelos appeals from a judgment of conviction and sentence imposed after a jury found him guilty of carrying concealed dirks or daggers (Pen. Code, § 21310). He contends the convictions were not supported by substantial evidence. We will affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
An amended information charged Banuelos with fleeing a pursuing peace officer's motor vehicle while driving recklessly (Veh. Code, § 2800.2), fleeing a pursuing peace officer's motor vehicle and driving against traffic (Veh. Code, § 2800.4), and three counts of carrying a concealed dirk or dagger (Pen. Code, § 21310). The matter proceeded to a jury trial.
A. Evidence at Trial
Because the counts of carrying a concealed dirk or dagger are the only counts at issue in this appeal, we limit our discussion of the evidence to those charges.
1. Dirk or Dagger (Ice Pick) on March 9, 2018
Around 10:30 a.m. on March 9, 2018, Officer David Smith was on patrol when he observed Banuelos trespassing near a shopping center. Around his neck, Banuelos was wearing a two-and-a-half-foot-long machete with a serrated blade. Smith got out of his patrol car and approached Banuelos. By that point, Banuelos was walking away from two dumpsters without the machete, which Smith saw on the ground by the dumpsters.
Officer Smith asked Banuelos if he had any other "weapons," and Banuelos replied that he had an ice pick in his pocket. Trained in weapons identification, Smith characterized the ice pick as a weapon "based on the fact that it was concealed in [Banuelos's] jacket pocket readily available for him to retrieve," he "wasn't carrying a large block of ice with him at the time," and there was no reason for him to have an ice pick in a known transient area. Smith concluded that the ice pick was a dirk or dagger within the meaning of the Penal Code.
Officer Smith did not recall whether Banuelos used the words "ice pick" to describe the item in his pocket, but Smith recognized the item as an ice pick.
2. Dirks or Daggers (Two Machetes) on March 18, 2018
At approximately 5:23 p.m. on March 18, 2018, uniformed police officer Edward Loss was dispatched to a recycling store based on a report of a man with a machete. When Loss arrived in his marked police vehicle, a woman advised that the man had gone behind "Trader Joe's." Loss observed Banuelos standing behind a pillar, wearing a black backpack from which a red-handled object protruded. As Loss approached in his police vehicle, Banuelos began walking away quickly. Loss noted that Banuelos could likely have accessed the red-handled object while wearing the backpack.
Officer Loss turned his vehicle around so he could follow Banuelos. He located Banuelos lying in shrubbery alongside a concrete retaining wall near the shopping center. Loss told Banuelos to stand and move toward him, and Banuelos complied. In the black backpack next to where Banuelos had been lying, the red handle and six inches of blade were sticking out of the top of the backpack. Loss observed another long metal object with a metal handle protruding from the backpack as well.
Officer Loss turned the backpack over to Officer Christopher McBride. McBride observed in the backpack two fixed-blade machetes, one with an approximately 30-inch blade and rusted metal makeshift handle, and the other with an approximately 12-inch blade and a makeshift handle of dirty red cloth wrapped in metal wire. Based on his training, McBride testified that machetes—including the two in Banuelos's backpack—were stabbing weapons. Even though machetes had possible agricultural uses, McBride had not seen anyone in the area using machetes to cut brush, and he wanted to get the machetes away from Banuelos because they could "create great bodily injury or death."
B. Jury Verdict and Sentence
The jury found Banuelos guilty of all charges. The court suspended imposition of sentence and placed him on formal probation for three years. It also imposed a 364-day jail term with credit for 276 days, later modifying it to 296 days with credit for 293 days. This appeal followed.
II. DISCUSSION
Consistent with CALCRIM No. 2501, the court instructed the jury that to prove Banuelos guilty of carrying a concealed dirk or dagger in violation of Penal Code section 21310, the prosecution needed to establish beyond a reasonable doubt that (1) Banuelos carried a dirk or dagger on his person, (2) he knew he was carrying it, (3) it was substantially concealed on his person, and (4) he knew it could readily be used as a stabbing weapon. The instruction defined 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." (See § 16470.) It further directed: "When deciding whether [Banuelos] knew the object could be used as a stabbing weapon, consider all the surrounding circumstances, including the time and place of possession[,] . . . the destination of the Defendant, the alteration of the object from standard form, and other facts, if any." The instruction also clarified, "The People do not have to prove that [Banuelos] used or intended to use the alleged dirk or dagger as a weapon."
All statutory references hereafter are to the Penal Code.
Banuelos does not contend the jury instruction was erroneous. Instead, he contends the evidence was insufficient to convict in two respects. We review for substantial evidence. (People v. Johnson (1980) 26 Cal.3d 557, 576.)
A. Knowledge He Had Ice Pick/Machetes Usable as Stabbing Weapons
As the court instructed the jury, the prosecution was not required to prove that Banuelos intended to use the ice pick and machetes as stabbing weapons, but merely that Banuelos knew he was carrying those items and they could readily be used as stabbing weapons. (People v. Rubalcava (2000) 23 Cal.4th 322, 328, 332 ["carrying a concealed dirk or dagger does not require an intent to use the concealed instrument as a stabbing weapon" but 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 considered former section 12020; the Legislature repealed and reenacted the relevant part of that statute without substantive change as sections 16470 and 21310. (See People v. Castillolopez (2016) 63 Cal.4th 322, 329; People v. Mitchell (2012) 209 Cal.App.4th 1364, 1369, fn. 1.)
Here, as to count 3, substantial evidence supports the conclusion that Banuelos knew he was carrying an ice pick that could be used as a stabbing weapon. When Officer Smith asked Banuelos if he had any other "weapons" on his person, Banuelos replied that he had the ice pick in his pocket. Furthermore, while the ice pick was not described in great detail in the trial testimony, it was admitted into evidence and displayed to the jurors, who could have rationally concluded that Banuelos knew the ice pick in his pocket could be used as a stabbing weapon.
As to counts 4 and 5, substantial evidence also supports the conclusion that Banuelos knew he was carrying two machetes that could be used as stabbing weapons. Banuelos was wearing a backpack that contained two fixed-blade machetes - one with a 30-inch blade and the other with a 12-inch blade. When Loss approached in his patrol vehicle, Banuelos fled. From this and their observation of the machetes, the jury could reasonably conclude that Banuelos knew his machetes could be used as stabbing weapons.
Banuelos contends there was insufficient evidence that he possessed the ice pick and machetes " 'as a weapon' " - as opposed to possessing them with knowledge they could be used as a weapon. For this proposition, he relies on People v. Baugh (2018) 20 Cal.App.5th 438 (Baugh). His argument is meritless for two reasons.
First, Baugh did not address section 21310 - the statute at issue here - but section 22210, which criminalizes possession of "any instrument or weapon of the kind commonly known as a billy, blackjack, sandbag, sandclub, sap, or slungshot." Baugh concluded that if an object charged to be a dangerous weapon under section 22210 has a lawful use, the prosecution must prove that the defendant possessed it as a weapon. (Id. at p. 449.) Indeed, CALCRIM No. 2500—which concerns the possession of illegal or deadly weapons under section 22210— provides that if the object is "capable of innocent uses," the prosecution must prove that "[t]he defendant [possessed] the object as a weapon." By contrast, CALCRIM No. 2501—which concerns carrying a concealed dirk or dagger under section 21310 charged here—does not include that requirement, but merely tells the jury to consider the surrounding circumstances in deciding whether the defendant knew the object "could readily be used as a stabbing weapon." Simply put, California law understandably treats weapons that fall under section 22210 differently than dirks and daggers under section 21310. (People v. Fannin (2001) 91 Cal.App.4th 1399, 1400, 1403-1405 [because the object has an innocent use, a bicycle lock on a chain may be a "slungshot" under Dangerous Weapons Control Law (§ 12000 et seq.) only if the evidence proves the defendant possessed it as a weapon, noting that "the Legislature has treated dirks and daggers differently from slungshots" and the statutory definition of dirk or dagger "refer[s] merely to capability of use as a weapon"].)
Second, even if Baugh applied to section 21310, there was substantial evidence in this case that Banuelos possessed the ice pick and machetes as stabbing weapons. Officer Smith testified that the ice pick was a weapon "readily available for [Banuelos] to retrieve," Banuelos "wasn't carrying a large block of ice with him at the time," and there was "really no reason for [Banuelos] to have that [ice pick] in that particular area at that time" except as a weapon, given that it was a "known transient hang-out" with "transient encampments." Officer Loss testified that a machete in Banuelos's backpack was within Banuelos's reach, there was no brush-clearing at the mall where Banuelos was found with his machetes, and Banuelos fled when Loss approached in his police vehicle. While Banuelos argues that he had not altered the ice pick, other tools found in his backpack "suggest[ed] there was an innocent purpose" in him carrying it, and Banuelos stayed in the area looking for work, it is not our role to reweigh the evidence.
B. Machetes Can Be Dirks or Daggers in California
Banuelos contends there was insufficient evidence that the machetes qualified as a dirk or dagger because a machete cannot be characterized as a "straight, stabbing weapon." The argument is unavailing.
First, under the jury instructions, the jury did not have to find the machetes to be straight stabbing weapons to find they were dirks or daggers. The instruction merely stated that a dirk or dagger was a knife or other instrument capable of ready use as a stabbing instrument that may inflict great bodily injury or death. Banuelos does not contend that he objected to the jury instruction as erroneous or incomplete, so it is immaterial whether there was substantial evidence that his machetes' blades were straight.
Second, and more broadly, there is no requirement under California law that an instrument must have a straight blade to be considered a dirk or dagger. Like CALCRIM No. 2501, section 16470 simply 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."
Given the definition of dirks and daggers in CALCRIM No. 2501 and section 16470, substantial evidence supported the jury's conclusion that the machetes in Banuelos's backpack were dirks or daggers. The machetes had fixed blades, one 12 inches long and the other 30 inches long. Officer McBride testified the machetes were "stabbing weapons" and he had wanted to get the machetes away from Banuelos because they could cause great bodily injury or death. The prosecution introduced the machetes and a photograph of the machetes into evidence for the jury to see. The jury could have reasonably determined that the machetes were instruments capable of ready use as stabbing weapons that may inflict great bodily injury or death.
Banuelos nonetheless insists that "[m]achetes typically are not classified as a 'straight stabbing instrument' " and that "[t]hough designed to slice or slash, a machete is not 'capable of ready use as a stabbing instrument.' " He does not, however, provide any citation to the evidence at trial or to relevant California case law.
Banuelos does refer us to People v. Barrios (1992) 7 Cal.App.4th 501 (Barrios), but his reliance on that case is misplaced. Barrios determined whether "a common bread knife" qualified as a dirk or dagger. (Id. at p. 506.) Noting that the bread knife "ha[d] no sharp edges, no stabbing point, no handguards, and no stiff blade"— which "substantially limit[ed] its effectiveness as a stabbing instrument"— the court determined that "[i]t [was] not a dirk or dagger as a matter of law." (Ibid.) But Barrios was decided in 1992, before the Legislature defined dirks and daggers by statute. (See Rubalcava, supra, 23 Cal.4th at pp. 328-330; People v. Belloso (2019) 42 Cal.App.5th 647, 654 [noting that Barrios is superseded by statute].) Moreover, Barrios did not limit dirks and daggers to instruments with straight blades. And unlike the common bread knife at issue in Barrios, Banuelos's machetes had long, fixed blades capable of stabbing.
Banuelos argues that the laws of some states other than California distinguish between a dirk or dagger and a machete. Applicable here, however, is California law, which explicitly defines dirks and daggers in section 16470, without distinguishing machetes.
Banuelos also tells us that "the commonly understood definition of a machete is 'a large heavy knife used for cutting sugarcane and underbrush.' (Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/machete . . . .)" But he omits an important part of that definition, which states in its entirety that a machete is "a large heavy knife used for cutting sugarcane and underbrush and as a weapon." (Merriam-Webster Dictionary <https://www.merriam-webster.com/dictionary/machete> [as of Feb. 4, 2020], italics added.) In any event, no matter how Merriam and Webster define a machete, the items possessed and concealed by Banuelos met the definition of dirks or daggers under California law, as set forth in a model jury instruction to which there was no objection at trial, based on evidence that amply supported the elements of the charged crimes. He fails to establish error.
III. DISPOSITION
The judgment is affirmed.
/s/_________
NEEDHAM, J. We concur. /s/_________
JONES, P.J. /s/_________
SIMONS, J.