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In re Angel R. (2008) , Cal.App.4th [No. G039120. Fourth Dist., Div. Three. Jun. 5, 2008.] In re ANGEL R., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, Plaintiff and Respondent, v. ANGEL R., Defendant and Appellant.
(Superior Court of Orange County, No. DL027581, Ronald P. Kreber, Judge.)
(Opinion by Sills, P. J., with O'Leary, J., and Moore, J., concurring.)
COUNSEL
Kurt David Hermansen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Deborah La Touche, Deputy Attorneys General, for Plaintiff and Respondent. {Slip Opn. Page 2}
OPINION
SILLS, P. J.-
Angel R. appeals from the order of the juvenile court finding him a ward of the court and placing him on probation after sustaining a petition charging him with possessing a switchblade knife, graffiti tools and less than an ounce of marijuana. (See Pen. Code, §§ 594.2, subd. (a), 653k; Health & Saf. Code, § 11357, subd. (b).) Although Angel brought a motion to suppress evidence, it was not pursued by newly appointed counsel before its hearing, an omission which Angel now characterizes as ineffective assistance of counsel. He also attacks the sufficiency of evidence to support the misdemeanor offenses of switchblade possession and graffiti tools. We affirm.
FACTS
In response to a citizen's complaint of four suspicious males displaying gang signs at an intersection, Anaheim Police Officers Salcido and Coursey proceeded to the nearby Palm Lane Park and found Angel in the company of three other young males. Salcido approached them and immediately noticed that Angel had bloodshot eyes and smelled of marijuana. When asked, Angel informed Salcido that he had some "weed" in his pocket. Salcido asked for, and received Angel's consent to search his person: The result was the discovery of a baggie of marijuana, an orange fluorescent marker and a pocketknife.
Salcido arrested Angel and took him to the police station without giving him
Miranda advice.
fn. 1 As the two entered the building, Salcido cautioned Angel that if he was carrying any other contraband, he would be charged with bringing contraband into the police station.
fn. 2 Angel immediately replied, "It's in my shoe[,]" kicking off his left one. Inside, adhesive stickers with graffiti-style lettering and the initial of a "tagging crew" were found.
Expert testimony from a knife maker, Ronald Clark, established that the pocketknife was a "liner lock" knife: a folding knife that locks when opened. As {Slip Opn. Page 3} originally designed and manufactured, a hole in the back of the blade prevented the knife from opening without specific pressure exerted on the opening button. However, the knife had been either intentionally modified or accidentally damaged so that the resistance mechanism did not function, which means this knife opens with a flick of the wrist. Nonetheless, the expert opined that this knife still did not meet the legal definition of a switchblade because it had been manufactured with a resistance mechanism, although the juvenile court concluded otherwise because of its present ability to open and lock with a mere flick of the wrist.
...(ommitted section discussing innefective council)...
B. Sufficiency of Evidence for Switchblade
Angel contends the evidence is insufficient to sustain the court's finding he possessed a switchblade as that is defined under section 653k of the Penal Code.
fn. 4 He requested that we physically examine the switchblade itself, which we subsequently received as a trial exhibit. {Slip Opn. Page 6}
Section 653k proscribes the possession of "a switchblade knife having a blade two or more inches in length . . . ." It then defines a switchblade knife as "having the appearance of a pocketknife and includes a . . . snap-blade knife, gravity knife or any other similar type knife, the blade or blades of which are two or more inches in length and which can be released automatically by a flick of a button, pressure on the handle,
flip of the wrist . . . or is released by the weight of the blade . . . . [However, it] does not include a knife that opens with one hand utilizing thumb pressure applied solely to the blade of the knife . . . provided that the knife has a detent or other mechanism that provides resistance that must be overcome in opening the blade, or that biases the blade back toward its closed position." (Italics added.) Angel argues that his knife "falls into the area of overlap between the definition and the exemption: It is a folding knife with a detent mechanism providing resistance to opening the blade, but the resistance is slight and therefore the knife can be opened with a strong flip of the wrist."
The standard of review is well established: We "must view the evidence in the light most favorable to the judgment and presume in favor of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. To be sufficient, evidence of each of the essential elements of the crime must be substantial and we must resolve the question of sufficiency in light of the record as a whole.' [Citation.]" (
People v. Carpenter (1997)
15 Cal.4th 312, 387.) Angel acknowledges this rule but argues that it is the lower court's
interpretation of the statute that is in question--and refers us to
People v. Goldberg (2003)
105 Cal.App.4th 1202, at page 1206--thus permitting
us to review the entire issue de novo.
The language of the statute is clear and unambiguous; nothing in the record indicates the lower court was confused, misled, or unclear as to the terms or language of the statute. When the language of a specific statute has "'no ambiguity, then we presume the lawmakers meant what they said, and the plain meaning of the language governs.' [Citation.]" (
Allen v. Sully-Miller Contracting Co. (2002)
28 Cal.4th 222, 227.) By {Slip Opn. Page 7} analogy, when the language of the statute is clear, we do not review a factual finding under it de novo.
The lower court specifically found,
as the trier of fact, that the knife opened if held "upside down with the blade facing the floor and you just drop your hand[.]" The court noted that it was "not pressing anything . . . The mechanism has been modified or worn out where the handle of the knife that covered that portion of the detent or the item that gave resistance to the blade from being opened is just not functioning. And so
it does open up with just a flick of the wrist, and it does go into a locking position when the blade is opened." (Italics added.) The court accepted the expert's "credentials and experience, but I do think the broken part of the handle on this knife has altered the knife[,]"
fn. 5 a point specifically rejected by the expert who emphasized that this knife was designed and manufactured
with a detent. Therefore, in the expert's opinion, even if it had been intentionally altered to eliminate the resistance mechanism, it would
never constitute a switchblade.
Angel maintains that, based on comments provided by the author of the amendment to the statute, even if the blade can be opened easily with but one hand, it does not constitute a switchblade as long as
some resistance is provided by the detent mechanism, no matter how slight. However, the language of the statute is not ambiguous or subject to multiple interpretations. Therefore, an examination of the legislative history is unnecessary. (
Allen v. Sully-Miller Contracting Co., supra, 28 Cal.4th at 227.) Moreover, for the amendment exemption to apply, the knife must be one that "opens with one hand utilizing thumb pressure applied solely to the blade of the knife or a thumb stud attached to the blade"
and has the detent or resistance mechanism. The knife in question was not of that type: It opened by merely a flick of the wrist, not with pressure on the {Slip Opn. Page 8} blade or thumb stud. Thus, the author's statements are irrelevant in attacking the court's finding under this statute.
The finding is sustained.
... (ommitted sections on graffitti tools)...
O'Leary, J., and Moore, J., concurred.
FN 1. See
Miranda v.
Arizona (1966) 384 U.S. 436.
FN 2. See Penal Code sections 4573.8, 4573.9 and 4574.
FN 3. The "doctrine of 'inevitable discovery[]' . . . [pivots on the fact that] 'there is no nexus to the illegality sufficient to provide a taint.' [Citation.]" (
Green v. Superior Court (1985)
40 Cal.3d 126, 136-137, citing
Nix v. Williams (1984) 467 U.S. 431, 390.) "[T]he doctrine 'is in reality an extrapolation from the independent source doctrine:
Since the tainted evidence would be admissible if in fact discovered through an independent source, it should be admissible if it inevitably would have been discovered.'" (
People v.Robles (2000)
23 Cal.4th 789, 800.)
FN 4. All further statutory references are to the Penal Code.
FN 5. At the initial encounter between Angel and Salcido, Angel said he knew the handle was broken.
FN 6. Tagging is the term for marking walls and surfaces with graffiti. A tagging crew is a group of taggers formed for the specific purpose of marking surfaces with identifying letters, names or logos. Angel's tagging crew was called "Buzzing with Korona" and the stickers found in Angel's shoe had the black letters, B, W and K.
