Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC597449
Bamattre-Manoukian, Acting P.J.
Defendant Ronald Moffett was convicted after jury trial of carrying a dirk or dagger concealed on his person (Pen. Code, § 12020, subd. (a)(4)). Defendant admitted having served two prior prison terms (§ 667.5, subd. (b)). The trial court sentenced defendant to three years, four months in state prison.
Further statutory references are to the Penal Code unless otherwise specified.
On appeal defendant contends that (1) the evidence does not support his conviction; (2) the court failed to instruct the jury on an element of the offense; (3) the court abused its discretion by admitting evidence of a prior physical altercation between defendant and a witness; (4) the court prejudicially erred by failing to give CALJIC No. 2.71 sua sponte; and (5) cumulatively, the errors require reversal of his conviction. We disagree with all of these contentions and, therefore, affirm the judgment.
BACKGROUND
Defendant was charged by information with carrying a dirk or dagger concealed on his person (§ 12020, subd. (a)(4)). The information further alleged that defendant had served three prior prison terms (§ 667.5, subd. (b)). The prosecutor dismissed one of the prison prior allegations prior to trial and the court granted defendant’s request to bifurcate trial on the remaining prior allegations. Defendant moved to exclude any evidence of his pending domestic violence case involving Tinisha Trotter, a witness in this case. The prosecutor sought admission of the evidence pursuant to Evidence Code section 1101, subdivision (b). Following an Evidence Code section 402 hearing, the court found some of the evidence to be more probative than prejudicial (see Evid. Code, § 352), and denied defendant’s motion.
The Trial Evidence
Tinisha Trotter and defendant dated for about seven years until she ended the relationship sometime before February 2005. This caused some tension between the two of them. On March 8, 2005, defendant showed up unexpectedly at Trotter’s apartment, and she allowed him inside. While he was there, he grabbed Trotter’s cell phone out of her hand when she tried to make a call. A physical altercation ensued during which Trotter was injured. This caused Trotter to be fearful of defendant.
In May or June 2005, defendant called Trotter at work. They had a friendly conversation and Trotter agreed to see defendant. She went to defendant’s house, where they talked for four or five hours. Because she was dating somebody new, she did not agree to get back together with defendant at that time. However, she agreed to consider doing so sometime in the future.
On July 5, 2005, Trotter invited defendant to her apartment. After defendant was there for some time, he and Trotter agreed that he could stay overnight and leave in the morning because he did not have a car and Trotter did not want to have to drive defendant home. While at Trotter’s apartment that night, defendant asked to use her cell phone. After using the phone he checked its call log without Trotter’s permission. Trotter told defendant to stop and tried to take the phone back. Defendant would not give the phone to Trotter and she did not want to argue with him about it. Defendant questioned Trotter about a phone number that appeared several times in the call log that he did not recognize. Trotter told defendant that the phone number belonged to the person Trotter was dating.
Trotter does not have a home phone and the nearest pay phone was a couple blocks away.
The next morning, July 6, 2005, when Trotter went to work, defendant was still at her apartment. She left defendant her cell phone so that he could call somebody to pick him up. Defendant called Trotter at work four or five times and questioned her about her relationship with the person she was dating, yelling at her while doing so. He continued to call her even after she asked him to stop, and he had also called the person she was dating. Trotter became upset; she knew that defendant was not calling for a ride and that he would still be there when she arrived home from work. She did not want to go home knowing that defendant was still there, and that he was angry, because she feared another confrontation. She called 911 and told the operator that defendant had previously been “a little violent” with her, and asked that the police remove defendant from her apartment.
San Jose Police Sergeant Larry McGrady contacted Trotter around 1:40 p.m. on July 6, 2005. Trotter sounded nervous and afraid. She expressed concern about being able to go home and asked for assistance in getting her ex-boyfriend to leave her apartment. She said that they had argued and that defendant had taken her cell phone from her the night before, that they had been in a physical altercation in March, that she was fearful, and that she was somewhat surprised that he allowed her to go to work that day. McGrady agreed to assist Trotter and she gave McGrady permission to enter her apartment. McGrady obtained a pass key from Trotter’s apartment manager. Because Trotter said that defendant would try to flee from the police by jumping out a window, McGrady and two other officers went to the front of the apartment shortly after 2:00 p.m. while other officers were positioned in the rear.
The officers knocked on the front door and announced themselves as police officers three to five times. There was no response, but McGrady was advised that defendant briefly appeared at a back window, so McGrady opened the front door with the pass key. He again announced their presence multiple times and yelled, “Let me see your hands.” About 45 seconds later defendant put his hands out so that McGrady could see them, and then he stepped out into the living room from the bedroom area. Defendant was wearing a baggy shirt and baggy jeans. When McGrady entered the apartment he did not see any weapons on defendant, but defendant’s shirt covered the pockets of his jeans. McGrady asked defendant whether he had any guns, knives, hand grenades, or anything that might stick the officer. Defendant said no. For safety reasons, McGrady searched defendant. He felt a knife in defendant’s right back pocket and pulled it out. It was a small kitchen knife and the blade of the knife was clean. Although McGrady did not enter the apartment’s kitchen, he could see into it and did not notice any food or food preparation items. McGrady seized the knife and removed defendant from the apartment. He then called Trotter to alleviate her concerns.
When Trotter arrived home around 4:30 p.m. on July 6, 2005, she found eggs boiling in a pot on the stove and a bowl of noodles on the coffee table. Trotter was not sure if the knife found on defendant came from her kitchen.
Verdicts and Sentencing
On October 20, 2005, outside the jury’s presence, and while they were deliberating, defendant waived trial on the two remaining prison prior allegations. The jury found defendant guilty of carrying a dirk or dagger concealed on his person (§ 12020, subd. (a)(4)), and defendant admitted the prison prior allegations. On March 9, 2006, the court sentenced defendant to three years, four months in state prison, the sentence consisting of the lower term of 16 months for the weapon offense plus two consecutive one-year terms for the prison priors.
DISCUSSION
Sufficiency of the Evidence
Section 12020 states in pertinent part: “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.” Defendant contends that, because “the entirety of his possession of [a] steak knife was while alone in a private residence,” “the evidence of his carrying is insufficient and the conviction must be reversed.” Defendant cites In re Bergen (1923) 61 Cal.App. 226 (Bergen) in support of his contention.
“In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.]” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
In People v. Grubb (1965) 63 Cal.2d 614 (Grubb), our Supreme Court upheld the constitutionality of section 12020 against a void-for-vagueness challenge. Construing the statute “in the light of the legislative design and purpose” (Grubb, at p. 620), the court found: “The Legislature here sought to outlaw the classic instruments of violence and their homemade equivalents; the Legislature sought likewise to outlaw the possession of the sometimes-useful object when the attendant circumstances, including the time, place, destination of the possessor, the alteration of the object from standard form, and other relevant facts indicated that the possessor would use the object for a dangerous, not harmless, purpose. [Citation.]” (Id. at pp. 620-621, fn. omitted.) “The concomitant circumstances may well proclaim the danger of even the innocent-appearing utensil. The Legislature thus decrees as criminal the possession of ordinarily harmless objects when the circumstances of possession demonstrate an immediate atmosphere of danger.” (Id. at p. 621.) “We recognize that the presence of suspicious circumstances attendant to possession of the proscribed object does not forge an ironclad case against defendant. He may be able to demonstrate an innocent usage of the object but the burden falls upon him to do so.” (Id. at p. 621, fn. omitted.)
The holding in Grubb that section 12020 is not unconstitutionally vague was reaffirmed in People v. Rubalcava (2000) 23 Cal.4th 322 (Rubalcava), even though, “[a]s written, section 12020, subdivision[] (a) . . . may criminalize seemingly innocent conduct.” (Id. at p. 333.) “[T]he 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.” (Ibid.) Therefore, “a defendant may be guilty of carrying a concealed dirk or dagger without intending to use the instrument as a stabbing weapon, . . .” (Ibid.)
In this case, there is ample evidence to support defendant’s conviction of carrying a concealed dirk or dagger. Sergeant McGrady testified that he saw defendant step from the bedroom area of Trotter’s apartment into the living room before McGrady entered the apartment. McGrady did not see any weapons on defendant but defendant’s shirt covered the pockets of his pants. Because McGrady wanted to search defendant for safety reasons, McGrady asked defendant whether he had any knives or anything that would stick McGrady. Defendant responded no. However, McGrady found a small kitchen knife with a clean blade in defendant’s right rear pocket. McGrady did not see any food or food preparation items in the apartment’s kitchen, and there was no evidence that defendant offered an innocent explanation for his possession of the knife.
Bergen does not help defendant. In that case, the defendant was charged by complaint with violating a statute which proscribed carrying a concealed firearm without a license. However, the complaint alleged that the defendant violated the statute by “conceal[ing] upon his person one . . . Pistol, without a license to carry such firearm.” (Bergen, supra, 61 Cal.App. at p. 227.) The appellate court found that the complaint did not state facts sufficient to constitute a violation of the statute as the “absence of an allegation of ‘carrying’ leaves the accusation defective, not merely in form, but in substance.” (Id. at p. 228.) “[T]he purpose of the legislature in enacting this law was to prevent citizens going armed in such fashion as to constitute a danger to the public; we think it was not designed to prohibit the concealment of a weapon upon one’s person on his own premises or in his own home.” (Id. at p. 228.)
In this case, defendant was charged with violating section 12020, subdivision (a)(4), which proscribes carrying a concealed dirk or dagger on one’s person, and the record supports the finding that defendant carried a concealed knife on his person inside Trotter’s apartment. The jury could reasonably conclude that, by his actions, defendant was “going armed in such fashion as to constitute a danger to the public.” (Bergen, supra, 61 Cal.App. at p. 228.) Defendant was not “on his own premises or in his own home” (ibid.), and the circumstances surrounding defendant’s conduct supports the finding that he violated “the legislative design and purpose” of section 12020, subdivision (a)(4). (Grubb, supra, 63 Cal.2d at p. 620.)
CALJIC No. 12.41
Defendant contends that section 12020, subdivision (a)(4), “requires intentional concealment, rather than mere intentional carrying of an instrument that is in fact not visible. As such, intentional concealment is an element of the crime, and the jury should have been given instructions sua sponte as to this element.” We disagree.
Contrary to defendant’s contention that “the law is unsettled as to whether the requisite intent goes to the concealment itself, or simply to the accused’s awareness that he is carrying an instrument that happens to be not visible,” our Supreme Court has settled the issue. The court stated in Rubalcava that, “[b]ecause the dirk or dagger portion of section 12020 criminalizes ‘ “traditionally lawful conduct,” ’ we construe the statute to contain a ‘knowledge’ element. [Citation.] Thus, to commit the offense, a defendant must . . . have the requisite guilty mind: that is, the defendant must knowingly and intentionally carry concealed upon his person an instrument ‘that is capable of ready use as a stabbing weapon.’ (§ 12020, subd. (a), (c)(24).) 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 of violating section 12020.” (Rubalcava, supra, 23 Cal.4th at pp. 331-332, fn. omitted.)
Thus, the Rubalcava court held that the requisite intent for section 12020, subdivision (a)(4), is knowingly and intentionally carrying a dirk or dagger that is concealed on one’s person. Accordingly, a defendant who knows that he is carrying the concealed weapon is guilty of violating section 12020, subd. (a)(4). The statute does not require intentional concealment. “Reading an intent-to-conceal element into the statute may not be consistent with its overall purposes, as carrying a concealed dagger is dangerous to public safety whether or not the bearer purposely concealed the weapon.” (Rubalcava, supra, 23 Cal.4th at p. 338, fn. 1 (conc. opn. of Werdegar, J.).)
People v. King (2006) 38 Cal.4th 617 (King), cited by defendant, does not require a contrary finding. In that case, the court reiterated, “as Rubalcava noted, the crime of carrying a concealed dirk or dagger, . . . prohibited in section 12020, is ‘not . . . a strict liability offense’; ‘to commit the offense, a defendant must still have the requisite guilty mind . . . .’ (Rubalcava, supra, 23 Cal.4th at pp. 331-332.)” (People v. King, supra, 38 Cal.4th at p. 625.) The requisite guilty mind required by Rubalcava is knowingly and intentionally carrying a dirk or dagger that is concealed on the person (Rubalcava, supra, 23 Cal.4th at p. 332), it is not knowingly and intentionally concealing a dirk or dagger.
The trial court properly instructed the jury pursuant to CALJIC No. 12.41 that, in order to prove the offense, the following elements had to be proved: (1) that defendant carried a dirk or dagger; (2) that the weapon was substantially concealed on his person; and (3) that defendant knowingly and intentionally carried a knife or other device capable of ready use as a stabbing weapon. (See also Judicial Council of Cal. Crim. Jury Instns. (2006), CALCRIM No. 2501.) As there is no intent-to-conceal element of section 12020, subdivision (a)(4), the trial court was not required to instruct sua sponte on such an element of the offense.
Evidence of a Prior Physical Altercation
During Trotter’s testimony, the court instructed the jury as follows: “I need to caution you that there will be evidence that’s going to be introduced from the witness who is being recalled that may demonstrate, may, that the defendant committed a crime or crimes other than that for which he is presently on trial, and it’s introduced for the – for a limited purpose, and except as you otherwise will be instructed, this evidence, if believed, may not be considered by you to prove that the defendant is a person of bad character or that he has a disposition to commit the crime for which he is currently on trial. It may be considered by you only for the limited purpose of demonstrating, if it tends to show, the mental state with which a knife or other instrument was carried on the date that is the subject matter of this particular litigation.”
Defendant contends that the trial court abused its discretion by admitting the evidence of a prior physical altercation between defendant and Trotter. He argues that the court’s theory of admissibility, that the evidence would be allowed on the issue of the intent element of section 12020, was improper “since there was insufficient similarity between the prior event and the instant facts.”
Although Trotter testified at an Evidence Code section 402 hearing that defendant slapped her, causing her to fall on the floor and suffer an injury to her leg, during this physical altercation, the court precluded Trotter from telling the jury the specifics of the physical altercation.
“ ‘Evidence that a defendant has committed crimes other than those currently charged is not admissible to prove that the defendant is a person of bad character or has a criminal disposition; but evidence of uncharged crimes is admissible to prove, among other things, . . . the intent with which the perpetrator acted in the commission of the charged crimes. (Evid. Code, § 1101.) Evidence of uncharged crimes is admissible to prove . . . intent only if the charged and uncharged crimes are sufficiently similar to support a rational inference of . . . intent. (People v. Ewoldt (1994) 7 Cal.4th 380, 402-403.)’ ” People v. Carter (2005) 36 Cal.4th 1114, 1147.) “The least degree of similarity is required to establish relevance on the issue of intent. (People v. Ewoldt, supra, 7 Cal.4th 380, 402.) For this purpose, the uncharged crimes need only be ‘sufficiently similar [to the charged offenses] to support the inference that the defendant “ ‘probably harbor[ed] the same intent in each instance.’ [Citations.]” ’ (Ibid.)” (People v. Kipp (1998) 18 Cal.4th 349, 371.)
“[T]he admissibility of other-crimes evidence depends upon the materiality of the fact sought to be proved or disproved, the tendency of the uncharged crime to prove or disprove the material fact, and the existence of any policy requiring exclusion of the evidence. [Citation.] In order to be material, the fact in dispute ‘may be either an ultimate fact in the proceeding or an intermediate fact “from which such ultimate fact[] may be . . . inferred.” ’ [Citation.]” (People v. Catlin (2001) 26 Cal.4th 81, 146.) “On appeal, the trial court’s determination of this issue, being essentially a determination of relevance, is reviewed for abuse of discretion. [Citations.]” (People v. Carter, supra, 36 Cal.4th at pp. 1147-1148.)
At the close of evidence, the court instructed the jury with CALJIC No. 12.41, which states in part, “The mental state with which a knife or other instrument is carried may be inferred from the evidence, including the attendant circumstances, the time, place, destination of the possessor, the alteration, if any, of the object from its standard form, and any other relevant facts established by the evidence.”
In order to prove defendant’s guilt, the prosecution had to prove that defendant knowingly and intentionally carried the knife concealed on his person. The court determined that evidence of defendant and Trotter’s prior physical altercation in Trotter’s apartment was evidence from which the jury could infer defendant’s mental state in carrying the knife during the incident at issue. The prior physical altercation involved defendant and Trotter, it occurred at Trotter’s apartment during an argument regarding Trotter’s cell phone, and Trotter was injured during the physical altercation, causing her to fear defendant. During the incident at issue in this case, defendant was again at Trotter’s apartment, he and Trotter had an argument regarding her cell phone, Trotter feared another confrontation with defendant, and Trotter contacted the police and requested that they remove defendant from her apartment. Even if the similarities of “the attendant circumstances” of the prior physical altercation and the current offense were not sufficiently similar and the court abused its discretion by admitting evidence of the prior physical altercation, we would find that such error clearly could not have resulted in a “miscarriage of justice.” (Evid. Code, 353, subd. (b).) Trotter called the police and told them that she was afraid to go home, the police went to and entered Trotter’s apartment at her request, defendant denied to the police that he was carrying a weapon while inside Trotter’s apartment, and the police found a knife concealed on defendant’s person. On review of the entire record, it does not appear reasonably probable that a result more favorable to the defendant would have been reached had the evidence not been admitted. (People v. Watson (1956) 46 Cal.2d 818, 837.)
CALJIC No. 2.71
Sergeant McGrady testified that he could not see any weapons on defendant, but defendant’s shirt covered the pockets of his pants. McGrady asked defendant whether he had any guns, knives, hand grenades, or anything that would stick him, and defendant replied no. McGrady then searched defendant and found a small kitchen knife in defendant’s right rear pocket. Defendant now contends that, because of this testimony and the prosecutor’s implication during argument that defendant’s denial reflected consciousness of guilt, the trial court prejudicially erred by failing to instruct the jury sua sponte with CALJIC No. 2.71.
CALJIC No. 2.71 states: “An admission is a statement made by [a][the] defendant which does not itself acknowledge [his][her] guilt of the crime[s] for which the defendant is on trial, but which statement tends to prove [his][her] guilt when considered with the rest of the evidence. [¶] You are the exclusive judges as to whether the defendant made an admission, and if so, whether that statement is true in whole or in part. [¶] [Evidence of an oral admission of [a][the]defendant not made in court should be viewed with caution.]”
CALJIC No. 2.71 (which is now embodied in CALCRIM No. 358) should be given sua sponte when there is evidence of a defendant’s admission and the admission is used to prove a part of the prosecution’s case. (People v. Beagle (1972) 6 Cal.3d 441, 455; People v. Marks (1988) 45 Cal.3d 1335, 1346; People v. Shoals (1992) 8 Cal.App.4th 475, 498.) An admission is an extrajudicial statement by the defendant—inculpatory or exculpatory—which tends to prove his or her guilt when considered with the rest of the evidence in the case. (People v. McClary (1977) 20 Cal.3d 218, 230; People v. Mendoza (1987) 192 Cal.App.3d 667, 676; People v. Brackett (1991) 229 Cal.App.3d 13, 19-20.)
While it is error for a court to fail to give CALJIC No. 2.71 whenever an extrajudicial statement by the defendant is admitted and the prosecution relies on it to establish the defendant’s guilt, the failure to do so “does not constitute reversible error if upon a reweighing of the evidence it does not appear reasonably probable that a result more favorable to defendant would have been reached in the absence of the error. [Citations.]” (People v. Beagle, supra, 6 Cal.3d at p. 455-456; People v. Carpenter (1996) 15 Cal.4th 312, 393.) “Since the cautionary instruction is intended to help the jury to determine whether the statement attributed to the defendant was in fact made, courts examining the prejudice in failing to give the instruction examine the record to see if there was any conflict in the evidence about the exact words used, their meaning, or whether the admissions were repeated accurately. [Citations.]” (People v. Pensinger (1991) 52 Cal.3d 1210, 1268.)
In this case, there was no evidentiary uncertainty about what defendant said. Defendant’s claimed admission was admitted through Sergeant McGrady’s uncontradicted testimony. McGrady testified that, when he asked if defendant had any knives or anything that would stick the officer, defendant said no. McGrady then found the small kitchen knife in defendant’s right rear pocket. Although the prosecutor implied that defendant’s denial was evidence of his guilt, McGrady’s testimony about finding the knife was sufficient in and of itself to support defendant’s conviction. The jury was instructed with CALJIC No. 2.20 on the factors to consider in judging the credibility of a witness and with CALJIC No. 2.27 on the sufficiency of testimony of one witness. We conclude that it is not reasonably probable that defendant would have obtained a more favorable result had the jury been instructed to view defendant’s response to McGrady’s question with caution. (People v. Beagle, supra, 6 Cal.3d at p. 455; People v. Pensinger, supra, 52 Cal.3d at p. 1268.)
Cumulative Prejudice
Defendant contends that he was denied due process and a fair trial “based on the cumulative prejudice and manifest unfairness established by some or all of the above-described errors. Even if the errors stated in the foregoing claims are deemed not prejudicial while taken singly, their cumulative effect combined to irreparably prejudice [his] right to a fair trial.” We find that any errors were not prejudicial, in view of the entire record, whether considered individually or collectively. (See People v. Cain (1995) 10 Cal.4th 1, 82; United States v. Valenzuela-Bernal (1982) 458 U.S. 858, 872.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: MIHARA, J., Duffy, J.