Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC064630A
Margulies, J.
Marcus Masellus Tuuhetoka was convicted by jury of violating Penal Code section 12020, subdivision (a). The court suspended imposition of sentence and placed defendant on probation for three years.
All subsequent statutory references are to the Penal Code unless otherwise indicated.
Defendant contends the court erred by denying his motion for acquittal and motion in arrest of judgment. He argues the information charging him with willful and unlawful possession of “an instrument or weapon of the kind commonly known as a knife in violation of Penal Code section 12020[,subdivision] (a)” failed to state a public offense because mere possession of a knife is not a crime.
We hold the information did state a public offense, and defendant waived any other pleading defect because he did not file a demurrer.
I. FACTS
The San Mateo District Attorney charged defendant by felony complaint as follows:
“On or about 08/18/2007 Marcus Marcellus Tuuhetoka did willfully and unlawfully manufacture, cause to be manufactured, import into the state of California, keep for sale, offer or expose for sale, or give, lend, or possess an instrument or weapon of the kind commonly known as a knife in violation of Penal Code section 12020[, subdivision] (a), a felony.”
Defendant waived a preliminary hearing. On September 27, 2007, the district attorney filed an information charging defendant with a violation of section 12020, subdivision (a) in the same language as the complaint.
At trial, San Bruno police officer Realyvasquez testified she detained and searched defendant during an investigation of a report of car vandalism in the 800 block of Huntington Avenue in San Bruno. The parties stipulated that officer Realyvasquez lawfully detained and searched defendant.
Officer Realyvasquez asked defendant if he had anything illegal on him such as “guns, knives, drugs.” He responded that he had a knife. The knife was not in defendant’s waistband, and Officer Realyvasquez did not find the knife in her pat-down search. She asked where it was. Defendant told her it was in his jacket. Officer Realyvasquez found a knife in the left inside breast pocket of defendant’s jacket.
The knife had a sharp curved blade that was five to six inches long. It had a finger-hold grip, and a butt to hold the hand in place when the knife is used. It also had a horizontal metal bar to prevent the finger from slipping onto the blade. The knife was not snapped into the sheath and could easily slide in and out.
After the prosecution rested, defendant moved to dismiss or for a judgment of acquittal pursuant to section 1118.1. He argued the information failed to state a public offense because it is not unlawful to possess a knife, and because the information failed to specify which of the knives listed in section 12020, subdivision (a) defendant was charged with possessing and, if it was a dirk or dagger, to allege it was concealed. The court denied the motion.
Defendant presented no evidence or witnesses on his behalf. In closing argument, defense counsel did not challenge the evidence that the knife met the statutory definition of a dirk or dagger, or that it was concealed. Instead, counsel tried to raise a reasonable doubt as to whether defendant knew the knife was in his jacket pocket.
The jury found defendant guilty “of the crime of possession of a dangerous weapon in violation of Penal Code Section 12020, [subdivision] (a)....”
Before the sentencing hearing, defendant filed a motion in arrest of judgment pursuant to section 1185 on the same grounds stated in his motion to dismiss or for acquittal. The court denied the motion, suspended imposition of sentence, and placed defendant on probation for three years on condition that he serve six months in jail.
II. ANALYSIS
Section 950 requires an accusatory pleading to contain “[a] statement of the public offense or offenses charged therein.” A public offense is “an act committed or omitted in violation of a law forbidding or commanding it.” (§ 15.) When an accusatory pleading fails to state a public offense, the defect is not waived by failing to demur (§ 1012) and may be raised in a motion to arrest the judgment. (§ 1185; see also People v. Norwood (1972) 26 Cal.App.3d 148, 152–153.) Except for lack of jurisdiction, any other defect that appears on the face of the accusatory pleading, must be raised by demurrer, or it is waived. (§§ 1012, 1004.)
Defendant did not file a demurrer. Nonetheless, he contends the pleading defect he raised in his motion for acquittal and the motion in arrest of judgment constituted a failure to state a public offense, and therefore was not waived by his failure to demur.
The appropriate procedural vehicle for raising the failure of the pleading to state a public offense is either a demurrer, or a motion in arrest of judgment, because the objection is to a defect that appears on the face of the pleading. (§ 1012.) The court therefore could have denied the motion for acquittal on this ground alone. As a practical matter, however, this procedural distinction is of little consequence to our analysis, because the motion in arrest of judgment was based upon the same asserted pleading defect. We therefore turn to the dispositive question: Did the information state a public offense?
Defendant first argues the information did not state a public offense because it is not a criminal act to possess any knife, but only those listed in section 12020 subdivision (a)(1), which proscribes possession of a “ballistic knife,” “belt buckle knife,” “lipstick case knife,” “air gauge knife,” “writing pen knife,” or in section 12020 subdivision (a)(4), which proscribes possession of a concealed dirk or dagger. He asserts that by omitting a more specific description of the knife, the information failed to distinguish between a criminal and innocent act, and consequently did not state a public offense.
In support of this contention, defendant relies primarily upon People v. Grinnell (1908) 9 Cal.App. 238 (Grinnell). In Grinnell the indictment alleged the defendant, in violation of section 288, “ ‘did willfully and lewdly commit a lewd and lascivious act upon and with the body of a child under the age of fourteen years,’ ” with the requisite intent. (Grinnell, at p. 239.) The court held the allegation insufficient to state a public offense because section 288 excepted certain acts from its definition of the offense, and nothing in the pleading negated the possibility that the act fell within that exception. The court held that in the absence of either a description of the particular act, or an allegation that the act did not fall within the exception, the indictment failed to state a public offense (Grinnell, at p. 240).
By analogy to Grinnell, defendant reasons the possession of a knife is not a criminal act, and by failing to describe the knife, or to specify which statutorily proscribed knife he possessed, the pleading failed to negate the possibility that he lawfully possessed a knife, and therefore failed to state a public offense.
Grinnell is of limited value because it was decided before amendments to section 952 in 1927 and 1929, which liberalized the rules of pleading in criminal cases. (See People v. Codina (1947) 30 Cal.2d 356, 359 [noting limited value of prior cases decided under strict rules of pleading]; see also People v. Curtis (1939) 36 Cal.App.2d 306, 317.) Section 952 now provides a pleading adequately states a public offense if it uses “the words of the enactment describing the offense or declaring the matter to be a public offense, or [states the offense] in any words sufficient to give the accused notice of the offense of which he is accused.” The “sufficiency of an indictment is not now to be tested by the rigorous rules of the common law nor by the rules existent prior to the 1927 and 1929 amendments to our statutes governing pleadings in criminal cases.” (People v. Thompson (1948) 85 Cal.App.2d 261, 263.)
In any event, Grinnell is distinguishable because the information in this case charged defendant with “unlawfully” possessing a knife “in violation of Penal Code section 12020[, subdivision] (a).” Even under the former stricter rules of pleading use of words like “unlawful” or “feloniously” were sufficient to distinguish an otherwise innocent act from a crime. For example, in People v. Mead (1904) 145 Cal. 500 (Mead), a defendant was convicted of violating a criminal statute that made it a felony for a man to permit his wife to be placed at, or remain in, a house of prostitution. The defendant contended the court erred by denying his motion to arrest the judgment. The motion was made on the grounds that the statute did not make it a crime for a man to allow his wife to remain at a house of prostitution for a lawful purpose, such as to work as a cook or seamstress. The defendant argued no crime was stated because the accusatory pleading did not allege “the wife was left in the house of prostitution with the intention on the part of the husband that she should herself act as a prostitute.” (Id. at p. 503.) The information did, however, allege that the defendant left his wife at the house of prostitution “willfully, unlawfully and feloniously.” (Id. at p. 502.)
The California Supreme Court held a person of common understanding would construe these words to “exclude an act which by law was innocent.” (Mead, 145 Cal. at p. 503.) For the same reason, by charging defendant with “unlawfully” possessing a knife “in violation of Penal Code section 12020 (a),” the information adequately stated the knife defendant was charged with possessing was one of the knives proscribed by section 12020, subdivision (a), and not a knife that it is lawful to possess.
Defendant also argues the information failed to state a public offense because it did not specify which of the knives proscribed by section 12020, subdivision (a) defendant was charged with possessing, and, if it was a dirk or dagger that it was concealed. He asserts the information must either use words describing a particular kind of knife or cite not only section 12020, subdivision (a), but also paragraphs (1) and (4). In the proceedings below, defendant relied primarily upon this court’s decision in Sallas v. Municipal Court (1978) 86 Cal.App.3d 737 (Sallas) for the proposition that, to state a public offense, the information had to specify the particular kind of knife or cite paragraphs (1) and (4) of section 12020, subdivision (a). Our decision in Sallas, however, does not stand for such a broad proposition.
In Sallas, a group of 25 defendants were charged by separate criminal complaints alleging a violation of Health and Safety Code section11550, “ ‘in that said defendant did unlawfully and wilfully use and was under the influence of a controlled substance.’ ” The complaints did not identify which controlled substance each defendant was accused of using. The defendants petitioned for a writ of prohibition to prevent further prosecution after the municipal court overruled their demurrers. The superior court denied the writ, and the defendants appealed. (Sallas, supra, 86 Cal.App.3d at pp. 739–740.)
This court held the lack of specificity concerning the controlled substance the defendants were accused of using violated the defendants’ due process rights. We explained that a person charged with using a controlled substance under Health and Safety section 11550 “must be prepared to defend against prosecutorial proof that he had used, or been under the influence of any one of [about 120 individually proscribed drugs or substances], or its ‘isomers, esters, ethers, salts, and salts of isomers....’ Having no information of the precise charge, he would be ill-prepared to establish that he had not shown the symptoms or behavior attending use of the undisclosed controlled substance.” (Sallas, supra, 86 Cal.App.3d at pp. 742–743.)
We also observed the defendants were charged with using a controlled substance. Therefore, the identity of the substance was not readily ascertainable in the same way it might be if they had been charged with unlawful possession because in the latter case the substance would typically be seized and be readily ascertainable by discovery. (Sallas, supra, 86 Cal.App.3d at pp. 741–742.) Here, by contrast, the charge involved unlawful possession, and the knife was seized from defendant.
Sallas, however, does not require that whenever a statute proscribes more than one type of substance or contraband the pleading must pinpoint a particular one in order to state a public offense. In fact, we cautioned against such an interpretation, by specifying that we did not “hold, or suggest, that... the charge must pinpoint one of the many controlled substances of the statute. It may be that among them are families, or classes, or chemical groupings, of such substances with substantially the same qualities, symptoms and behavioral effects, and that constitutional demands would be satisfied by charging use or abuse of one of the substances of that family, class or group.” (Sallas, supra, 86 Cal.App.3d at p. 744.) We also never reached the question whether the information stated a public offense, but rather held that in light of the breadth of substances covered due process required the pleading be more specific. This latter issue was not waived because the defendants had filed demurrers raising the issue of vagueness or uncertainty created by the lack of specificity in the accusatory pleading. (Id. at pp. 740–741.)
Unlike the statute at issue in Sallas, section 12020 subdivision (a) covers a much smaller list of proscribed weapons. Moreover, the information identified the category or group of proscribed weapons defendant was charged with possessing by describing the weapon in common language as “a knife.” Even without specifically referencing paragraphs (1) and (4), this description was adequate to put a person on notice that he was charged with violating section 12020, subdivision (a) by carrying or possessing one of the six types of knives described in subsection (1) or (4). (See § 952; see also People v. Atwood (1963) 223 Cal.App.2d 316, 323, disapproved on another ground by People v. Carter (2003) 30 Cal.4th 1166, 1197.)
At worst, the failure of the information specifically to refer to paragraphs (1) and (4) or section 12020, subdivision (a), or to choose among the types of knives proscribed by section 12020, subdivision (a) created a problem of vagueness or uncertainty. If defendant found the pleading too uncertain, “it was incumbent upon defendant to raise the question by demurrer and his failure to do so constituted a waiver of such objection.” (People v. Atwood, supra, 223 Cal.App.2d at p. 324; see also People v. Sanders (1922) 188 Cal. 744, 752 [contention that pleading could be read to embrace threats under two different subdivisions of section 519 was “at most a mere uncertainty” that is waived if not raised by demurrer].)
We conclude the court properly denied defendant’s motions because the information adequately pleaded a public offense, and defendant waived any objection that the pleading was too uncertain by not filing a demurrer.
III. CONCLUSION
The judgment is affirmed.
We concur: Marchiano, P.J. raham, J.
Retired judge of the Superior Court of Marin County assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.