Opinion
E052652
04-24-2012
THE PEOPLE, Plaintiff and Respondent, v. LETRIONNA LOUISE LOW, Defendant and Appellant.
Law Offices of Steven S. Lubliner and Steven S. Lubliner for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton, Meredith S. White and Marissa A. Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. FWV1002165)
OPINION
APPEAL from the Superior Court of San Bernardino County. Shahla Sabet, Judge. Affirmed.
Law Offices of Steven S. Lubliner and Steven S. Lubliner for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton, Meredith S. White and Marissa A. Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant Letrionna Louise Low appeals from judgment entered following her negotiated plea of no contest to the charge of carrying a concealed dirk or dagger upon the person (Pen. Code, § 12020, subd. (a)(4); count 1) and to a prior strike allegation (§§ 667, 1170.12). In exchange for her plea, defendant received a suspended six-year sentence and the remaining allegations were dismissed. Defendant's guilty plea was entered after the trial court denied defendant's motion to set aside the information under section 995 (motion to dismiss).
Unless otherwise noted, all statutory references are to the Penal Code.
The trial court minute order dated January 3, 2011, incorrectly states that defendant entered a plea of nolo contendere as to count 2, rather than count 1. The information contains only one count. The reporter's transcript of the proceeding states that defendant pled no contest to count 1.
Defendant challenges the trial court's denial of her motion to dismiss. She contends that, under the facts accepted as true for purposes of this appeal, she did not commit the crime of carrying a concealed dirk or dagger (§ 12020, subd. (a)(4)) because carrying it in her purse does not constitute concealment on defendant's person, within the meaning of section 12020, subdivision (a)(4). Defendant also argues section 12020, subdivision (a)(4) is unconstitutionally vague and violates the Second Amendment of the United States Constitution.
We conclude carrying a concealed dirk or dagger in a purse constitutes concealment of the dirk or dagger "upon his or her person" under section 12020, subdivision (a)(4). We also conclude the statute is not unconstitutionally vague and does not violate defendant's Second Amendment constitutional right to bear arms. The judgment is affirmed.
II
FACTS AND PROCEDURAL BACKGROUND
Because this appeal challenges a pretrial ruling denying defendant's motion to dismiss under section 995, the facts are taken from the preliminary hearing.
Police Officer Stafford testified at defendant's preliminary hearing to the following facts. At approximately 6:30 p.m. on June 19, 2010, Stafford responded to an incident on the Central Avenue overpass in the City of Montclair. Upon arriving at the scene, Stafford saw defendant carrying a big purse. There also was a man present. Stafford asked defendant if she could search defendant's purse. Defendant consented. Stafford found a 10-inch, fixed blade knife and a fixed blade box cutter in defendant's purse. Stafford spoke to both the man and defendant. Defendant admitted to being aware the knife was in her purse. The search did not produce any additional weapons. Stafford also searched the man and found a knife tucked into his boot.
Stafford was the only witness who testified at the preliminary hearing.
Defendant and her companion were each charged with carrying a dirk or dagger concealed upon their persons (§ 12020, subd. (a)(4)). Defendant pled not guilty to the charge. After Stafford's testimony at defendant's preliminary hearing, the parties rested and defense counsel argued that the prosecution had not proven each of the elements of the charge. Specifically, there was no evidence defendant was carrying the dirk on her person, since the dirk was found in defendant's purse. In response, the prosecutor cited People v. Dunn (1976) 61 Cal.App.3d Supp. 12 (Dunn) for the proposition that carrying a concealed knife in a purse satisfied the element of carrying a concealed weapon on one's person. After hearing lengthy argument, as well as researching the issue, the trial court concluded that defendant's act of carrying a concealed dirk in her purse fell within the purview of section 12020, subdivision (a)(2), because the purse was "upon her person." The trial court found there was sufficient evidence to hold defendant to answer as charged.
The prosecution filed a one-count information alleging a section 12020, subdivision (a)(4) violation. Defendant filed a motion to dismiss the information under section 995. Defendant argued there was insufficient evidence presented at the preliminary hearing showing that defendant was carrying a dirk or dagger concealed on her person. The trial court denied defendant's motion, noting that the evidence was undisputed that the dirk was completely concealed in defendant's purse and that defendant's purse was an extension of, and on, her body (People v. Flores (1979) 100 Cal.App.3d 221, 230). Therefore the dirk was concealed on her body within the meaning of section 12020, subdivision (a)(2).
Defendant withdrew her not guilty plea and entered a plea of nolo contendere to the single count alleged in the information and to the prior strike allegation. The trial court suspended defendant's six-year prison sentence, placed defendant on probation, and ordered her to complete a drug court program.
III
CARRYING A DIRK ON ONE'S PERSON
Defendant contends there was no evidence that she was carrying a dirk or dagger on her person within the meaning of section 12020, subdivision (a)(4). Defendant argues that, assuming for purposes of this appeal the facts are undisputed that she was carrying a dirk in her purse, such circumstances as a matter of law do not constitute a violation of section 12020, subdivision (a)(4).
Section 12020, subdivision (a)(4) provides as follows: "(a) Any person in this state who does any of the following is punishable by imprisonment in a county jail not exceeding one year or in the state prison: [¶] . . . [¶] (4) Carries concealed upon his or her person any dirk or dagger." A dirk or dagger is defined in section 12020, subdivision (c)(24) 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. 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."
The trial court concluded that defendant's purse was an extension of her body and therefore defendant was carrying a concealed dirk on her person by virtue of carrying her purse containing the dirk. Defendant argues that the dirk was not upon her person under section 12020, subdivision (a)(4) because the phrase is limited to in a person's clothing, and a purse is not clothing. We disagree.
As we consider the language in section 12020, subdivision (a)(4), we are mindful that our primary purpose in construing a statute is to ascertain the Legislature's intent and effectuate the purpose of the law. (People v. Canty (2004) 32 Cal.4th 1266, 1276.) Statutory construction begins with examining the language of the statute, giving the words their usual and ordinary meaning. (Ibid.) In ascertaining the meaning, we must construe the terms consistently with its grammatical structure. (People v. Youngblood (2001) 91 Cal.App.4th 66, 71.) If unambiguous, the plain meaning of the statute prevails. (Canty, at p. 1276.)
Section 12020, subdivision (a)(4) provides that a violation occurs when any person "[c]arries concealed upon his or her person any dirk or dagger." (§ 12020, subd. (a)(4).) Since there is no case law interpreting this provision, we turn to case law interpreting a similar provision, section 12025, subdivision (a)(2), involving the crime of carrying a firearm "concealed upon his or her person . . . ." (§ 12025, subd. (a)(2).)
In Dunn, supra, 61 Cal.App.3d Supp. 12, the defendant, Warren Dunn, was convicted of carrying a handgun inside a locked suitcase in violation of section 12025, subdivision (a)(2). He asserted, as defendant does, that the weapon was not carried concealed "'upon his person'" as required by the statute. Dunn argued that the Legislature intended the phrase, "'upon his person,'" to include "a man's attire or clothing exclusive of handbags, attache cases, suitcases, and the like." (Id. at p. Supp. 13.) Dunn acknowledged, however, that with respect to a woman, the legislative intent was to include items such as purses and handbags.
In rejecting Dunn's argument that carrying a gun in a suitcase was not carrying the gun upon his person, the Dunn court stated: "We hold that the Legislature intended to proscribe the carrying of concealed weapons by both men and women and that a handgun concealed in a suitcase and carried by appellant is sufficiently 'upon his person' to constitute a violation of section 12025." (Dunn, supra, 61 Cal.App.3d at p. Supp. 14, citing People v. Pugach (1964) 15 N.Y.2d 65, 69 [loaded firearm concealed in a brief case carried by a defendant is "concealed upon his person"].) The court's reasoning in Dunn applies equally in the instant case to defendant carrying a concealed dirk in her purse. There is nothing in the statute, and defendant cites no case that holds that concealment of a weapon in a purse is not a method of concealment sufficient to sustain a conviction under section 12020, subdivision (a)(4).
The apparent Legislative intent of section 12020, subdivision (a)(4) was to proscribe carrying concealed, readily accessible instruments that are ordinarily used for criminal purposes. (People v. Taylor (2001) 93 Cal.App.4th 933, 950 (conc. & dis. opn. of Morrison, J.); see also Dunn, supra, 61 Cal.App.3d at p. Supp. 14.) This would include outlawing a concealed dirk or dagger carried in a purse. The 1997 revision resolved concerns that the definition of "dirk or dagger" would include certain knives that are possessed lawfully. Our high court in People v. Rubalcava (2000) 23 Cal.4th 322 (Rubalcava) addressed the constitutional concern that section 12020 extended to lawful conduct. (See Rubalcava, at pp. 331-332.) As construed in Rubalcava, the current version of section 12020, subdivision (a)(4) accomplishes the goal of outlawing instruments that are commonly used for criminal purposes, while safeguarding the rights of individuals to possess certain knives for lawful purposes.
Regardless of whether defendant carried the dirk in her purse or other clothing, the weapon was at her fingertips. The ease of access to the dirk was the same. As with the suitcase in Dunn, defendant's purse could be reasonably construed as being on her person, whether she carried it on her shoulder or arm, or in her hand. Black's Law Dictionary defines the phrase "on the person" as follows: "In common parlance, when it is said that someone has an article on his person, it means that it is either in contact with his person or is carried in his clothing." (Black's Law Dict. (6th ed. 1990) p. 1089, col. 2.) This definition encompasses a dirk or dagger concealed within a hand-held or shoulder purse.
Defendant urges this court to disregard Dunn, supra, 61 Cal.App.3d Supp. 12 because it was decided by a trial court appellate division and therefore is not binding on this court. Even though Dunn is not binding, it provides persuasive authority for the proposition that carrying a dirk concealed in a purse satisfies the requirement under section 12020, subdivision (a)(4), of carrying "concealed upon his or her person any dirk or dagger." Consistent with Dunn, we conclude defendant violated section 12020, subdivision (a)(4) by carrying a dirk concealed in her purse, which was "upon her person" within the meaning of section 12020, subdivision (a)(4). Such an act satisfied the spirit and intent of the statute.
IV
VAGUENESS CHALLENGE
Defendant challenges the constitutionality of section 12020, subdivision (a)(4) based on vagueness grounds. Specifically, defendant argues the statutory language, "on his or her person" is unconstitutionally vague to the extent it is unclear whether it extends to carrying a dirk or dagger in a purse. Defendant notes that, by extending the statute to a dirk and dagger concealed in a purse, there would be no way of lawfully transporting a knife after purchasing it at a store. But this is not true. As long as the dirk or dagger is sold in packaging of some sort and is not "capable of ready use as a stabbing weapon" (§ 12020, subd. (c)(24)), it can be lawfully transported after purchase.
The relevant legal principles governing the doctrine of unconstitutional vagueness can be summarized as follows: "'The constitutional interest implicated in questions of statutory vagueness is that no person be deprived of "life, liberty, or property without due process of law," as assured by both the federal Constitution (U.S. Const., Amends. V, XIV) and the California Constitution (Cal. Const., art. I, § 7). Under both Constitutions, due process of law in this context requires two elements: a criminal statute must "'be definite enough to provide (1) a standard of conduct for those whose activities are proscribed and (2) a standard for police enforcement and for ascertainment of guilt.'" [Citations.]' [Citation.] Several factors are involved: '"'First . . . we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing a fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law 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.'" [Citations.]' [Citation.]" (People v. Ervin (1997) 53 Cal.App.4th 1323, 1328.)
The starting point of the vagueness analysis is the strong presumption that the legislative enactment is constitutional. (People v. Ervin, supra, 53 Cal.App.4th at p. 1328.) "'Many, probably most, statutes are ambiguous in some respects and instances invariably arise under which the application of the statutory language may be unclear.' [Citation.]" (Ibid.) Thus, in order to succeed on the facial vagueness challenge, the defendant "'"must do more than identify some instances in which the application of the statute may be uncertain or ambiguous; he must demonstrate that "the law is impermissibly vague in all of its applications."'" (Ibid.)
"'"The requirement of reasonable certainty does not preclude the use of ordinary terms to express ideas which find adequate interpretation in common usage, and understanding." [Citation.]' [Citation.] 'A dictionary is a proper source to determine the usual and ordinary meaning of a word or phrase in a statute.' [Citations.]" (People v. Ervin, supra, 53 Cal.App.4th at p. 1329; see also Scott v. Continental Ins. Co. (1996) 44 Cal.App.4th 24, 29 [dictionary is a proper source to ascertain the meaning of words used in a statute].) "'[A] statute is not void simply because there may be difficulty in determining whether some marginal or hypothetical act is covered by its language.' [Citation.]" (People v. Ervin, supra, 53 Cal.App.4th at p. 1329.)
In concluding a section 12020, subdivision (a) violation is a specific intent crime, the California Supreme Court in Rubalcava noted that "the relevant language of section 12020 is unambiguous." (Rubalcava, supra, 23 Cal.4th at p. 328.) However, the court in Rubalcava did not consider whether the language, "on his or her person," is unconstitutionally vague. We reject defendant's constitutional vagueness challenge to the language. Although section 12020 does not define the meaning of the phrase, "on his or her person," the plain meaning or "common parlance" of the language, as defined in Black's Dictionary, encompasses carrying a concealed dirk or dagger in a purse. The statutory language is broad and can be reasonably construed, without requiring additional clarifying language, as encompassing a dirk or dagger concealed within anything on a person, including a purse carried on one's shoulder or arm, or in one's hand. Furthermore, a purse can reasonably be considered an article of clothing and an extension of the person carrying it. Even though section 12020 does not specifically refer to a purse or bag, the language is sufficiently clear that carrying a concealed dirk or dagger in one's purse is unlawful under section 12020, subdivision (a)(4).
V
SECOND AMENDMENT CHALLENGE TO
PROHIBITING CARRYING A CONCEALED DIRK
Defendant contends section 12020, subdivision (a)(4) facially and, as applied to defendant, violates the Second Amendment of the United States Constitution. Citing District of Columbia v. Heller (2008) 554 U.S. 570, 635 (Heller) and McDonald v. City of Chicago (2010) __ U.S. __ (McDonald), defendant argues that, because the statute contains an overbroad, blanket prohibition against carrying a concealed dirk or dagger on one's person, the statute violates the Second Amendment right to bear arms. We disagree.
The Second Amendment of the United States Constitution states, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." (U.S. Const., 2nd Amend.) Under the Second Amendment, an individual has the right to possess and carry weapons in case of confrontation. (Heller, supra, 554 U. S. at pp. 592, 595.) The Second Amendment is applicable to the states through the due process clause of the Fourteenth Amendment. (McDonald, supra, 561 U.S. ___ .)
Neither Heller nor McDonald specifies the applicable standard of review. (See Nordyke v. King (9th Cir. 2011) 644 F.3d 776, 782.) There is case law that suggests an "intermediate scrutiny" or "heightened scrutiny" applies under the Second Amendment (United States v. Miller (W.D. Tenn. 2009) 604 F.Supp.2d 1162, 1169, 1171-1172; United States v. Masciandaro (4th Cir. 2011) 638 F.3d 458; Nordyke, supra, 644 F.3d at p. 786). There also is at least one court that concludes strict scrutiny applies to all gun-control regulations. (United States v. Engstrum (D. Utah 2009) 609 F.Supp.2d 1227, 1231-1232.) The Nordyke court observed that Heller and McDonald suggest that heightened scrutiny applies only if a regulation substantially burdens the right to keep and to bear arms for self-defense. (Nordyke, at p. 783.) Application of strict scrutiny to every gun-control regulation would be inconsistent with Heller's reasoning since Heller "sorted such regulations based on the burden they imposed on the right to keep and to bear arms for self-defense" (Nordyke, at p. 784), and referred to "presumptively lawful" gun regulations. (Heller, supra, 554 U.S. at pp. 626-627, and fn. 26; People v. Ellison (2011) 196 Cal.App.4th 1342, 1347 [Fourth Dist., Div. Two] (Ellison).)
We recently concluded in Ellison, supra, 196 Cal.App.4th at page 1347, in which the defendant raised a Second Amendment challenge to section 12025, subdivision (a), that, "[a]bsent any specific direction from the Supreme Court, we adopt the 'intermediate scrutiny' standard, because the statute, on its face, does not completely prohibit or unduly burden the right of law-abiding persons to bear arms. The law at issue in Heller totally banned handgun possession in the home, and required that any lawful firearm in the home be disassembled or bound by a trigger lock at all times, rendering it inoperable. (Heller, supra, 554 U.S. at p. 628.) It concluded that a total ban on the possession of handguns in the home, without an exception for self-defense, was unconstitutional. (Id. at p. 630.)" (Ellison, at p. 1347.) Likewise, here too, we adopt the intermediate or heightened scrutiny standard because section 12020, subdivision (a)(4) "does not completely prohibit or unduly burden the right of law-abiding persons to bear arms." (Ellison, at p. 1347.)
The inherent right to bear arms in self-defense is not unlimited. (Heller, supra, 554 U.S. at p. 626; Ellison, supra, 196 Cal.App.4th at p. 1348.) The "right [i]s not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." (Heller, at p. 626.) The Heller court "acknowledged that the majority of 19th-century courts [considering] the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment. [Citation.] It also cautioned that its holding should not be taken to cast doubt on long-standing prohibition, including the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. [Citation.]" (Ellison, at p. 1348.) The Heller court indicated this list of permissible prohibitions was not all-inclusive. (Heller, at p. 627, fn. 26; Ellison, at p. 1348.)
After Heller was decided, the court in People v. Yarbrough (2008) 169 Cal.App.4th 303, 310 (Yarbrough) rejected arguments similar to those posited in Ellison and in the instant case, and held that section 12025 is constitutional. In Yarbrough, the court noted that, unlike in Heller, section 12025, subdivision (a), does not broadly prohibit or regulate possession of a gun in the home for the lawful purposes of confrontation or self-defense. (Yarbrough, at p. 313.) In rejecting the defendant's Second Amendment challenge, the Yarbrough court reasoned that, unlike possession of a gun for protection within a residence, carrying a concealed firearm presents a recognized "'threat to public order,'" and is "'"prohibited as a means of preventing physical harm to persons other than the offender." [Citation.]'" (Id. at p. 314, quoting People v. Hale (1974) 43 Cal.App.3d 353, 356.)
The Yarbrough court noted that Heller "specifically expressed constitutional approval of the accepted statutory proscriptions against carrying concealed weapons." (Yarbrough, 169 Cal.App.4th at p. 314, citing Heller, supra, 554 U.S. at p. 678.) Yarbrough explained this was because carrying a concealed or concealable firearm presents a "'threat to public order'" that may be "'"prohibited as a means of preventing physical harm to persons other than the offender." [Citation.]'" (Yarbrough, supra, 169 Cal.App.4th at p. 314.) "As the court in Yarbrough observed, a '[p]erson who carries a concealed firearm on his person or in a vehicle, "which permits him immediate access to the firearm but impedes others from detecting its presence, poses an 'imminent threat to public safety . . ."'"' (Ellison, at pp. 1348-1349.)
In Ellison, we rejected the defendant's Second Amendment challenge to section 12025, subdivision (a)(1), which prohibits carrying a concealed firearm in a vehicle. We rejected the Ellison defendant's Second Amendment challenge on the following grounds: "The Second Amendment protects the right of law-abiding, responsible citizens to use arms in defense of hearth and home. (Heller, supra, 554 U. S. at p. 635.) But Penal Code section 12025, subdivision (a), does not impair the ability of a person to defend 'hearth or home' because it does not prohibit the possession of loaded firearms in the home. Nor does it constitute a blanket prohibition against carrying a firearm for self-defense because it exempts from prosecution the carrying of a concealable firearm with a permit, and the carrying of a firearm in a locked trunk or other locked container, among other exceptions. The statute is narrowly tailored to protect the public by prohibiting only the unregistered carrying of concealable firearms in a vehicle. Because of its narrow focus, it is not overbroad. Penal Code section 12025, subdivision (a), does not substantially burden defendant's exercise of his Second Amendment right, and is constitutional." (Ellison, supra, 196 Cal.App.4th at pp. 1350-1351.)
Defendant argues that the lack of an alternate way to exercise his Second Amendment right to bear arms renders section 12020, subdivision (a)(4) unconstitutional. We disagree. Section 12020, subdivision (a)(4) criminalizes carrying a knife for self-protection only when: (1) the knife is a dirk or dagger, and (2) when it is concealed on one's person. (§ 12020, subd. (a)(4).) Section 12020, subdivision (a) does not deprive defendant of alternate means of exercising his right to bear arms. It is a limited intrusion. We conclude section 12020, subdivision (a)(4), both facially and as applied to defendant, does not violate defendant's Second Amendment right to bear arms. The statute is narrowly tailored to protect the public by prohibiting only carrying a concealed dirk or dagger on one's person. Because of its narrow focus, it is not overbroad. Section 12020, subdivision (a)(4), does not substantially burden defendant's exercise of his Second Amendment right to bear arms, and therefore is constitutional.
VI
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
I concur:
RICHLI
Acting P.J.
King, J., Dissenting.
Penal Code section 12020, subdivision (a)(4) makes it unlawful for an individual to "carr[y] concealed upon his or her person any dirk or dagger." Read by itself, and in the context of the entire statute, subdivision (a)(4) requires that the dirk or dagger be on the person, not in a purse or some other carryall.
All further statutory references are to the Penal Code unless otherwise indicated.
Section 12020 was repealed effective January 1, 2012. The relevant portion of section 12020, subdivision (a)(4) is now codified at section 21310.
I believe if the Legislature intended to proscribe one's right to carry a dirk or dagger in a purse, it simply could have provided under section 12020, subdivision (a)(1) that it was a crime to possess a concealed dirk or dagger, or it could have drafted subdivision (a)(4) to simply provide that it was unlawful to "carr[y] any concealed dirk or dagger."
References to subdivisions (a)(1) and (a)(4) are to those subdivisions of former section 12020.
Section 12020, subdivision (a)(4) is clear on its face and, as written, appears to express the Legislature's intent.
"'Under settled cannons of statutory construction, in construing a statute we ascertain the Legislature's intent in order to effectuate the law's purpose. [Citation.] We must look to the statute's words and give them their usual and ordinary meaning. [Citation.] The statute's plain meaning controls the court's interpretation unless its words are ambiguous.' [Citations.] If the words in the statute do not, by themselves, provide a reliable indicator of legislative intent, '[s]tatutory ambiguities often may be resolved by examining the context in which the language appears and adopting the construction which best serves to harmonize the statute internally and with related statutes. [Citation.]' [Citation.]" (People v. Arias (2008) 45 Cal.4th 169, 177.)
Giving the phrase "upon the person" its usual and ordinary meaning, the dirk or dagger must be on the person, i.e., directly in contact with the person or in clothing the individual is wearing.
Among Webster's many definitions of "person," the most appropriate is: "[T]he body of a human being as presented to public view usu[ally] with its appropriate coverings and clothing," as is "an unlawful search of the [person]." (Webster's 3d New Internal Dict. (1993) p. 1686.)
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To the extent "upon the person" could be deemed ambiguous, we must examine the statute as a whole in an attempt to harmonize its provisions. Section 12020, subdivision (a)(1) makes it unlawful to possess a number of specified items, including, but not limited to, a belt buckle knife, a lipstick case knife, an air gauge knife, and a writing pen knife. Possession of such items would clearly include the possession of a purse or carryall that contains the item. Thus, if the Legislature wished to proscribe the possession of a concealed dirk or dagger in a purse or carryall, as defendant did in the present case, it could simply have added "a concealed dirk or dagger" to the list of items proscribed in subdivision (a)(1). Instead, by separately dealing with concealed dirks and daggers in subdivision (a)(4), the Legislature intended to punish conduct different than simple possession. Furthermore, if the legislature wished to proscribe the simple carrying of a dirk or dagger in a purse, suitcase, or other carryall, it would have made it unlawful to "carry a concealed dirk or dagger."
The different conduct proscribed in section 12020, subdivision (a)(4) is the carrying of a concealed dirk or dagger "upon" the defendant's person. In construing this language, we should avoid a construction which renders the language superfluous or unnecessary. (People v. Frawley (2000) 82 Cal.App.4th 784, 789.) Here, the phrase "upon his or her person" modifies, or limits, the meaning of the word "carries." The statute does not penalize the carrying of a concealed dirk or dagger regardless of how the dirk or dagger is carried; it penalizes only the carrying of a concealed dirk or dagger when it is carried "upon his or her person." (§ 12020, subd. (a)(4), italics added.)
In applying section 12020, subdivision (a)(4) to the present case, to penalize the carrying of a concealed dirk or dagger in a purse, the majority has made the phrase "upon his or her person" superfluous to the subdivision. "„[T]he court cannot create an offense by enlarging a statute, by inserting or deleting words . . . .'" (People v. Gohdes (1997) 58 Cal.App.4th 1520, 1526.) By including the phrase "upon his or her person," the Legislature intended that the dirk or dagger be concealed on the individual or in his or her clothing. As such, the subdivision has no application to the present factual setting.
Lastly, a requirement that the dirk or dagger be directly in contact with the person or in clothing the individual is wearing addresses some of the concerns discussed by the court in People v. Rubalcava (2000) 23 Cal.4th 322. There, the defendant argued that in order to violate section 12020, subdivision (a)(4), a defendant must have the specific intent to use the dirk or dagger as a stabbing weapon. In concluding that it was a general intent crime and that no intent of unlawful use was necessary, the court recognized that the subdivision had a "potentially broad reach." (People v. Rubalcava, supra, at p. 331.) As stated by the court: "[W]e echo the concerns over the breadth of the statute raised by [defendant.] As written, section 12020, subdivisions (a) and (c)(24) may criminalize seemingly innocent conduct. Consequently, the statute may invite arbitrary and discriminatory enforcement not due to any vagueness in the statutory language but due to the wide range of otherwise innocent conduct it proscribes." (Id. at p. 333.)
To this end, the statutory requirement that the dirk or dagger be "upon the person"—i.e., directly in contact with the person or in clothing the individual is wearing—militates against the statute's application to otherwise innocent conduct. While an individual may innocently carry what qualifies as a dirk or dagger in a purse, picnic bag, or other carryall, an individual who keeps such an item concealed "upon" their person, where it can be quickly accessed, is more likely to do so with a nefarious purpose.
KING
J.