PEOPLE v. CASTILLOLOPEZRespondent’s Opening Brief on the MeritsCal.October 30, 2014 In the Supreme Court of the State of California THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, Vv. EMMANUEL CASTILLOLOPEZ, Defendant and Appellant. SUPREME COURT FILED OCT 30 2014 Case No. 8218861 Frank A. MoeGuire Clerk, Fourth Appellate District, Division One, Case No. D063394 2 Deputy Os eg 9,qo —- San Diego County Superior Court, Case No. SCD242311 The Honorable Albert T. Harutunian,III, Judge OPENING BRIEF ON THE MERITS KAMALAD. HARRIS Attorney General of California GERALD ENGLER Chief Assistant Attorney General STEVE OETTING Deputy Solicitor General JENNIFER TROUNG Deputy Attorney General JULIE L. GARLAND. Senior Assistant Attorney General State Bar No. 179657 110 West A Street, Suite 1100 San Diego, CA 92101 P.O. Box 85266 San Diego, CA 92186-5266 Telephone: (619) 645-2604 Fax: (619) 645-2581 Email: Julie.Garland@doj.ca.gov Attorneysfor Plaintiffand Respondent TABLE OF CONTENTS Page Issue Presented ....0.... se cessessssseessssceseeeeeescecesscessenessesscsesestesesossesaseuseesnsacscasaees 1 Introduction ........eeseesscesseseceesesssessseeseeseessenssesseessseseessessesessssescesesesesacatsesees 1 Statement of the Case and Facts.......0...c.:ccsssssssssssesessseneserseecsessseseessesssssveess I ALQUMEN.......ceceseeecssessecseceecesdessessesesseescessesscsessessessssecveeenseesseeecgnsensenseness 6 I. A pocketknife is capable of ready use as a stabbing weapon,and thus punishable as a dirk or dagger, when it is concealed with the blade secured in the open POSITION 0... seesesesseseseseserserereteeseessessesseeeeetensseeseeesesseesesesees 6 A. Applicable canons of statutory construction............... 8 B. The developmentofthe dirk or dagger statute........... 9 C. Underthe plain statutory language, a pocketknife concealed with the blade secured in the open position is a dirk or dagger.......u.cesere Il 1. The broad scopeofthe statute reflects the Legislature’s intent to prohibit instruments concealed in a ready-to-stab POSITION... .essccesesessessseseecessceessotestessesesssecensers 1] 2. The meaningofthe phrase “locked into position” must be determined based on the scopeofthe statute and the practical function of a pocketknife 0.0... eeeesseseeeeeeees 14 3. The Court of Appeal’s interpretation transmutes the meaning of the wordsin the Statute 00... eseeesecsesseceesseseeteeseeteeseceseees 17 4. Courts have interpreted the phrase “locked into position” as meaning open........ 19 D. Thelegislative history provides further support that a pocketknife concealed with the blade secured in the open position is a dirk or dagger....... 20 E, Sufficient evidence supported the jury’s finding that Castillolopez’s pocketknife is a dirk or dagger...Sas eeaeenssesevsasarstosesecenessacesensnssesssossenersees 26 CONCIUSION..........ccccessseccecccsecccsscssesesessecessscsscsecsscesuasecevessssceesseceecevecsuscees 27 People v. Benson (1998) 18 Cal4th 24 oocccccccesesenenesssessesesesesssssseeseessesssesscrasesevesees 9 People v. Forrest (1967) 67 Cal.2d 478 oeeccesccescssssssscseseecsssssesssseseseseseesersesneseaeseeespassim People v. Grubb (1965) 63 Cal.2d 614iceccseeesessssssesssescesssnssessssesssenssseesssssesesssesseeseees 13 People v. Jenkins (1995) 10 Cal.4th 234 ooescsssssenesssssssssssesessesesserseeceeesesesesensesseseses 8 People v. Johnson (1980) 26 Cal.3d 557 wi cccccessesesssssessecsssssesessssssssesesees seeatenescessesesessesaes 26 People v. Mays (2007) 148 Cal.App.4th 13 oo eeececessessseesessesssssessestesseseecaesesesecssesesseenes 9 People v. Mendoza (2000) 23 Cal4th 896 occessscccssssssssssstsnssessesssresuesnsesseessesserseesvees 11,14 People v. Mowatt (1997) 56 CalApp.4th 713...eeceseeseseestetseseeeseenLeseneenseaseeeaeesteeeeeee 23 People v. Murphy (2001) 25 Cal.4th 136 on.eesecesssssessessesseessseesssasesesssesssasessesessssssessesseeees 8 People v. Plumlee (2008) 166 Cal.App.4th 935.0... ceesssecssseessessssessesseestesseesesesessesssesseesee 19 People v. Rodriguez (2012) 55 Cal.4th 1125 ooceesssesscsstecsseesenesscscsussesssesesesessssnetseeasesees 8 People v. Rubalcava (2000) 23 Cal.4th 322 ooccccsssssesessssesssssesescsssesseaneesssrsessesens 13, 22, 23 People v. Ruiz . (1928) 88 CalApp. 502oeeesscssssesessesecssnessesesssesssessssesssessnessesasenees 9 People v. Sisneros . (1997) 57 Cal.App.4th 1454... cccccceecssscsescssseesssseseseseecsesees 19, 20, 21 People v. Villagren (1980) 106 Cal.App.3d 720... ecscescssessessssssesessestssssssseeseesesesecssessnsess 13 iii ISSUE PRESENTED Is possession of a concealed, open pocketknife with the blade in a fully extended position sufficient to sustain a conviction for carrying a concealed dirk or dagger? INTRODUCTION During a high-risk vehicle stop, Emmanuel Castillolopez refused to comply with a police officer’s repeated commandsto stop moving and put his hands in the air. He stared at the officer, who had his gun drawn and pointed at Castillolopez, andreached around under the dashboard area of the car until he surrendered a minute and a half later. Uponarrest, Castillolopez had an open pocketknife with a fully extended two- to three- inch blade hiddenin his front jacket pocket. Castillolopez was properly convicted of concealing a dirk or dagger. Asthe plain language and legislative history of Penal Code section 16470 makeclear, a pocketknife can be a dirk or dagger whenit is carried as one—that is, with the blade secured in the open position. This interpretation is consistent with the Legislature’s intent to protect the public from weaponsthat can be immediately used as stabbing implements without further manipulation STATEMENT OF THE CASE AND FACTS Around 10:00 p.m. on July 29, 2012, Emmanuel Castillolopez was riding in a car in San Diego’s City Heights neighborhood. Police Officer Bryce Charpentier attempted traffic stop on the car but the driver continued driving. Whenthe driver finally stopped, the car was facing bumper-to-bumperwith the patrol car.’ (2 RT 96-98.) ' The trial court precluded testimony regarding the circumstances of the pursuit as overly prejudicial to Castillolopez. (1 RT 28-59.) years as a deputy sheriff. (2 RT 134.) He has taught Edged Weapons Training to new deputy district attorneys for four years andhastestified as a weapons expert approximately a dozen times. (2 RT 136-137.) Investigator Gary described Castillolopez’s knife as a pocketknife® or “multi-tool” with a blade that is sharp enoughto cut through flesh. (2 RT 137-138.) The open blade is heldinto placeby a friction/spring type of lock. (2 RT 138.) Investigator Gary explained that the spring causes resistance that once “you get past a certain point, the resistance releases, and thenit locks into place. [] That’s what holds [the blade] in place.” (2 RT 138-139; see also 2 RT 147-148.) Once opened, the blade clicks into place in the “exposed and locked position.” (2 RT 139.) He opined that every folding knife has somesort of locking mechanism “because, otherwise, the blade wouldn’t be ableto stay in place.” (2 RT 155-157.) Castillolopez’s knife is different than what is commonlyreferred to as a locking blade knife, which requires manipulation of the locking mechanism to close. (2 RT 147-148.) When askedto define the word “lock,” Investigator Gary said “[t]o make something impenetrable or immovable.” (2 RT 151.) Investigator Gary acknowledgedthat a pocketknife may not be a “weapon of choice”as a defensive tactic because it could closeifit hit something hard,but that it is nonetheless capable of inflicting great bodily 3 Witnesses described Castillolopez’s knife by various terms such as collapsible knife (2 RT 104), Swiss Army Knife (2 RT 149, 172), folding knife (2 RT 149, 154, 188), multi-tool (2 RT 140-141, 180), and pocketknife (passim). For consistency, and because the precise type of knife is not generally in dispute, the People will refer to the knife by the common term pocketknife. A copyofa picture of the pocketknife that was introduced as Exhibit 2 (2 RT 105; CT 79)is attached for the court’s convenience as Appendix A. The People have asked the Superior Court to transmit the exhibit to this court under California Rules of Court, rule 8.224(a)(1). During deliberations, the jury requestedclarification on the definition . of dirk or dagger, specifically the phrase “locked into position.” (CT 77.) Thetrial court responded with a written statement: “Whetheror not a knife blade is ‘locked into position’ is a question of fact for the jury to decide, and the court cannot give further guidance on that question.” (CT 78.) Thejury found Castillolopez guilty of carrying a concealed dirk or dagger. (4 RT 269; CT 146.) Castillolopez admitted a prior serious felony strike (§§ 667, subds. (b)-(i), 1170.12) and a prison prior (§ 667.5, subd. (b)). The trial court sentenced him to a total term of three years eight months. (CT 147.) On appeal, Castillolopez first raised a vagueness challenge to Penal Code section 16470. Section 16470 defines a dirk or dagger, in pertinent part, as “a knife or other instrument[] that is capable of ready use as a stabbing weapon that mayinflict great bodily injury or death. A nonlocking folding knife, a folding knife that is not prohibited by section 21510 [switchblade], or a pocketknife is capable of ready use as a stabbing weaponthat may inflict great bodily injury or death onlyif the blade ofthe knife is exposed and lockedinto position.” | Castillolopez claimed the statute was unconstitutionally vague because “the notion that a ‘nonlocking’ knife can be ‘lockedinto position’ is inherently contradictory.” The Court of Appealrejected that argument. Relying on dictionary definitions of the verb “lock,” the Court of Appeal held that the “the phrase ‘locked into position,’ when givenits plain and commonsense meaning, is sufficiently definite to provide fair notice to people of ordinary intelligence that in order for a concealed folding knife or pocketknife to be a dirk or dagger[], the blade mustnot only be exposed, butalso firmly fixed in place or securely attached so as to be immovable.” (Ship opn.at p. 15.) The court further rejected Castillolopez’s contention that the term “nonlocking folding knife” was vague. The court held thatit But the Court of Appeallost sight of the legislative intent whenit focused on the word “locked”in isolation without consideration for the scope, purpose, and history of the legislation. In so doing, the Court of Appeal failed to adhere to several well-established canonsofstatutory construction. First, the broad scope and contextofthe plain statutory language demonstrates that the Legislature intended to prohibit any instrumentthat was readily capable of inflicting serious harm. Second, examining the statutory language in context demonstrates that “locked into position” simply meansthat the pocketknife is secured into a ready-to-stab position. Third, the Court ofAppeal’s interpretation of the phrase “locked into position” as meaning that the knife mustbe altered into an immovable position adds an alteration requirementthat could have been,but is not, in the statute and results in absurd consequences. Fourth, interpreting the statute as applying to pocketknivesthat are carried in the open and ready- to-stab position is consistent with the appellate decisions that have interpreted the statutory definition of dirk or dagger. / And, evenif the issue cannot be resolved by interpretation ofthe plain statutory language alone,thelegislative history provides a roadmap leading to a conclusion that a pocketknife concealed with the blade secured into the open position is punishable as a dirk or dagger. Thehistory reflects that the Legislatureintended to and has significantly expanded the early judicial decisions that expressly excluded pocketknives from the definition of dirk or dagger. . The Legislature did not seek to prohibit only the most efficient stabbing weapons.Instead, in its effort to protect the public from the dangers of concealed stabbing implements, it specifically chose to proscribe otherwise harmless folding and pocket knives when those knivesare carried in a mannerthat allows immediate access for stabbing. not exist.” [Citation.]’” (Lennane v. Franchise Tax Bd. (1994) 9 Cal.4th 263, 268; People v. Benson (1998) 18 Cal.4th 24, 30) 66Onthe other hand, if the statute is ambiguous, courts may consider a variety of extrinsic aids, includinglegislative history, the statute’s purpose, and public policy.’ [Citation]” (People v. Mays (2007) 148 Cal.App.4th 13, 29-30; Coalition ofConcerned Communities, Inc. v. City ofLos Angeles (2004) 34 Cal.4th 733, 737.) B. The Developmentof the Dirk or Dagger Statute In 1917, the Legislature enacted an uncodified statute that prohibited the mere possession of a dirk or dagger. The statute provided, “Every person who possesses any instrument or weapon ofthe kind commonly known asa blackjack, slungshot, billy, sandclub, sandbag, bludgeon, metal knuckles, bomb or bombshells, or who carries a dirk or a dagger, is guilty of a misdemeanor... .” (Stats. 1917, ch. 145, p. 221, § 2.) In 1923, the Legislature addedto the statute the elements of carrying upon the person and concealment, and madethe offense a felony: “[E]very person who .. carries concealed upon his person any dirk or dagger, shall be guilty ofa felony ....” (Stats. 1923, ch. 339, p. 696, § 1.) In 1953, the statute was codified in the Penal Code as section 12020. (Stats. 1953, ch. 36, p. 653, § 12020.) Section 12020 provided, “Any person in this State who . . . carries concealed upon his person any dirk or dagger, is guilty ofa felony... .” The statute was amended numeroustimes between 1953 and 1993, but. none of the amendments during this period includeda definition of “dirk or dagger.” In 1967, the California Supreme Court adopted the following definition of “dirk or dagger” from People v. Ruiz (1928) 88 Cal.App. 502, 504: C. Underthe Plain Statutory Language, a Pocketknife Concealed withthe Blade Secured in the Open Position is aDirk or Dagger Castillolopez’s knife, which he concealed in his jacket pocket with a two-to-three-inch blade secured in the fully open and extendedposition, was undisputedly readily capable ofinflicting great bodily injury or death. The plain languageofthestatute reflects the Legislature’s intent to criminalize the carrying of such knives because — in the open position — pocketknives becomereadily capable of being used as a stabhing weapon. Yet the Court of Appeal defined the plain statutory language so narrowly that only pocketknives with the blade altered into a fixed and immovable position will be punishable as a dirk or dagger even whenthey are undisputedly capable of ready use as a stabbing weapon. This court should reject the Court ofAppeal’s interpretation because it is inconsistent with several well-established canonsofstatutory construction. 1. The broad scope ofthe statute reflects the Legislature’s intent to prohibit instruments concealed in a ready-to-stab position The Court ofAppeal failed to consider the commonsense meaning of the words within the context of the statute as a whole. Courts should considerthe entire substanceofthe statute in context, “’keeping in mind the nature and obvious purposeofthe statute ....’ [Citation.]* (People v. Mendoza (2000) 23 Cal.4th 896, 907-908 (Mendoza).) Penal Code sections 21310 and 16470 provide the controlling languageatissue in this case. Section 21310 makesit a crimeto carry a concealed dirk or dagger. It provides, in pertinent part, “any person in this state who carries concealed upon the person any dirk or daggeris punishable by imprisonmentin a county jail not exceeding one year or imprisonment ....” There is no debate about whether Castillolopez’s knife was concealed, so no further analysis of section 21310 is necessary. The 11 instruments punishableas a dirk or dagger, but instead clarifies the position certain instruments mustbein to be “capable of ready use”as a stabbing instrument. As this court has long recognized, some instruments may be designed for innocent or harmless purposes but may nonetheless become criminal under certain circumstances. “The Legislature thus decrees as criminal the possession of ordinarily harmless objects when the circumstances of possession demonstrate an immediate atmosphere of danger.” (People v. Grubb (1965) 63 Cal.2d 614, 621, superseded by statute as stated in People v. Rubalcava (2000) 23 Cal.4th 322, 329-330 (Rubalcava); see also People v. Villagren (1980) 106 Cal.App.3d 720, 726 [“depending on their characteristics and capabilities for stabbing and cutting, some objects present a question of fact for a jury as to whether they are a ‘dirk or dagger,’ whereas others are considered a ‘dirk or dagger’ as a matter of law”].) Consistent with this principle, the Legislature recognized that commonitems such as pocketknives or folding knives are not dangerous unless and until they are concealed in a dangerous manner. As the experts in this case agreed, an open pocketknife is readily capable of inflicting great bodily injury or death. (2 RT 139, 183-184.) Thus, carrying a concealed and open pocketknife should be punishableas a dirk or dagger. Yet, the Court of Appeal’s interpretation of the statute excludes all pocketknives from the definition except those that are altered to make the blade immovable, even if they are concealed in a ready-to-stab position. (Slip opn. at pp. 22-24.) The Court of Appeallost sight of the forest (...continued) a thumbstud attachedto the blade, 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.” (§ 17235.) 13 Moreover, the Legislature used the phrase “exposed and locked into position” rather than just the word “locked.” Considering the entire phrase “locked into position” rather than isolating the single word “locked” helps clarify the meaning ofthe statute, particularly when considered within the context of the “ready use” requirement and the function of a pocketknife. The Court of Appealrelied on dictionaries to define “locked”as fixed, immobile, immovable, incapable ofbeing moved. (Slip opn.at pp. 14-15.) However, the word “locked” must be defined based on the item at issue. A folding knife mechanism is moresimilar to a joint than a keyed door, for example. Webster’s 3d New International Dictionary describes locked in the context of a joint as “held rigidly in the position assumed during complete extension”as in “struck a blow with a [locked] wrist.” (Webster’s New Internat. Dict. (3d ed. 2002) p. 1328.) Similarly, the Oxford English Dictionary defines lock as “to fasten, make orset fast, fix; [] to fasten or engage (one part of a machine to another); . . . (of a joint) to. be rendered rigid.” (Oxford English Dict. Online (2014) (as of October 28, 2014).) Underthese definitions, it is reasonable to interpret the Legislature’s use of the word “locked” as simply meaning securedin a rigid or fastened location. Moreover, the Legislature’s meaning becomes more clear when considering the word “locked” with the word “position.” Position has been defined as“a properor natural location in relation to other items.” (Webster’s New Internat. Dict., supra, at p. 1769.) The examplegiven is “put the lever in operating [position].” (/bid.) The Oxford English Dictionary defines position, in pertinentpart, as “in (also into)its, his, or her proper, appropriate, or correct place.” (Oxford English Dict. Online (2014) (as of October 28, 2014).) Thus, position can simply be read as the proper place to operate. 15 3. The Court of Appeal’s interpretation transmutes the meaning of the wordsin the statute Courts “presumethe Legislature intended everythingin a statutory scheme,and[] do not read statutes to omit expressed languageor to include | omitted language”[Citation.]” (Tyron W. v. Superior Court (2007) 151 Cal.App.4th 839, 850.) The Court ofAppeal failed to adhereto this canon of statutory construction when it added an alteration requirement and rendered the “nonlocking” descriptor superfluous. The Court of Appeal interpreted the statutory language in the context of Castillolopez’s vagueness argument, which was based on the “inherent inconsistences” created by the Legislature’s use of the terms “nonlocking folding knife” and “locked into position.” (Slip opn. at pp. 16-17.) After defining “locked into position” as “plainly mean[ing] a knife with a folding blade that, as designed and manufactured, does not lock into position so as to be firmly fixed and immovable whenit is in an open position,” the court applied this definition in the converse to the term “nonlocking folding knife.” The court stated that a nonlocking folding knife “plainly means a knife with a folding blade that, as designed and manufactured, does not lock into position soas to be firmly fixed and immovable whenit is in an open position.” (/d., at p. 16.) This interpretation runs contrary to several accepted cannonsofstatutory construction. A court “should give meaning to every word of a statute and should avoid constructions that would render any word or provision surplusage. {Citations.]” (Tuolumne Jobs & Small Business Alliance v. Superior Court (2014) 59 Cal.4th 1029, 1038.) Section 16470 specifically contemplates that even a “nonlocking folding knife” can constitute a dirk or dagger.In attempting to give meaningto this term, while at the same time give meaning to the requirement that the knife be “locked into position,”the Court ofAppeal concluded that the former applied to knives manufactured 17 4. Courts have interpreted the phrase “locked into position” as meaning open Consistent with the context and practical meaningofthe statutory language as set forth above, courts have interpreted the “locked into position” phrase as simply meaning open,or not closed. In other words, a folding knife that is concealed in the open position is a dirk or dagger because it can be immediately used as a stabbing weapon, whereas a folded or closed knife cannot. In People v. Plumlee (2008) 166 Cal.App.4th 935, the issue before the court was whether a switchblade with its blade retracted wasa dirk or dagger. (id. at p. 939.) In finding that it was, the court noted the language from former section 12020, subdivision (c)(24), which provided that a nonlocking folding knife that is not a switchblade,is a dirk or dagger onlyif it is “exposed and locked into position.” The court found this “fairly straightforward” language meansthat a switchbladeis a dirk or daggerregardless ofits position but that a folding knife “can be a dirk or dagger only if the knife is open.” (/d., at p. 940, emphasis added.) . The court in Jn re George W. (1998) 68 Cal.App.4th 1208 considered whether there was evidence the defendant’s folding knife was capable of ready use. (/d. at pp. 1214-1215.) The court explained that although the knife was capable of lockinginto position, there was no evidence showing “the blade of the folding knife in appellant’s pocket was exposed and locked into position—as opposed to being closed andretractedinto its - handle.” (dd. at p. 1215.) The court noted that “closed pocketknives are not ‘capable of ready use’ without a numberofintervening machinationsthat give the intended victim time to anticipate and/or prevent an attack.” (/d. at p. 1213.) The court in People v. Sisneros (1997) 57 Cal.App.4th 1454, 1457, held that a device requiring assembly before it can be usedis not a dirk or dagger. The device at issue was a cylinder that, when unscrewed, revealed 19 the statute to ascertain legislative intent. (Kraus v. Trinity Management Services, Inc. (2000) 23 Cal.4th 116, 129, superseded by statute on other groundsasstated in Arias v. Superior Court (2009) 46 Cal.4th 969, 977.) Although carrying a dirk or dagger has been a crime in California since 1917, the Legislature did not adopt a definition until 1993. Before this time, courts had interpreted the term dirk or dagger narrowly and presumed it was limited to only those instruments that were designed for stabbing. The Legislature’s first definition followed the judicial interpretations. But the Legislature soonrealized that its initial definition was too narrow becauseit allowed criminals to avoid prosecution by fashioning weapons that did not meet the narrow statutory definition. Over the next few years, the Legislature significantly expanded the definition to includeall knives and instrumentsthat are carried in a ready-to-stab manner. The evolution of the dirk and dagger definition provides a clear roadmap demonstrating the Legislature’s intent to criminalize the carrying of concealed and open pocketknives. Before the Legislature first provided a definition for dirk or dagger in 1994, the meaning of those terms had “bedeviled courts for decades.” (People v. Sisneros, supra, 57 Cal.App.4th at p. 1456.) This court attempted to resolve the confusion in People v. Forrest, supra, 67 Cal.2d 478. In Forrest, this court considered whether a closed pocketknife was a dirk or dagger. (Forrest, at pp. 479-480.) The court noted that lower courts had “only applied the section to instruments where the blades and handle are solid, or where the blade locksinto place.” (/d. at p. 480.) The court noted “dirks and daggers wereoriginally used in dueling and required blades locked into place to be effective. They are weapons designed primarily for stabbing.” (/bid.) Thus, the court held that a folded pocketknife, as a matter of law, is not a dirk or dagger under thestatute at issue. (/d. at p. 481.) Importantly, though,this court also explained that the 21 constructed, or altered to be a stabbing instrument,” with the phrase, “that is capable ofready use as a stabbing weapon.” (Compare Stats. 1993, ch. 357, § 1, p. 2155, with Stats. 1995, ch. 128, § 2, italics added; Rubalcava, . at p. 330.) This was a “much broader and looser definition which included not only inherently dangerous stabbing weaponsbutalso instruments intended for harmless uses but capable of inflicting serious injury or death.” (George W., supra, 68 Cal.App.4th at p. 1212.) The 1995 amendment marked a significant expansion of the primary- purpose definition. In People v. Mowatt (1997) 56 Cal.App.4th 713 (Mowatt), the Court ofAppeal examinedthe applicability of the two versionsofthe statute to the defendant’s possession of a hunting knife. The court noted that the 1993 statute “clearly designates dirks and daggers as ‘classic instruments of violence and their homemade equivalents.’” (Mowatt, at p. 718.) Under the 1993 statute, which applied to defendant based onthedateofhis crime, the court held that defendant’s hunting knife was not a dirk or dagger because“the statutory definition simply does not include instrumentsprimarily designed for lawful uses but subject to criminal misuse.” (/d., at p. 720.) The court noted, however, that the “1995 Legislature reconsidered the ‘dirk or dagger’ question and substituted a muchlooserdefinition, encompassingboth inherently dangerous stabbing weaponsand instruments intended for harmless uses but also capable ofinflicting serious harm.” (/d., at p. 719.) The court concludedthat the defendant’s hunting knife would qualify as a dirk or dagger under the newstatutory definition. (/d., at pp. 719-720.) As the court’s analysis in Mowatt makesclear, the 1995 amendment marked significantly broadenedtheinitial Forrest-based definition. But the broad scope of the 1995 definition raised concerns for hunting knife manufacturers and sportsmen whothought it could criminalize carrying commonitemslike folding knives and pocketknives. (George W., 23 suggested the statute provide: “A non-locking folding knife or pocket knife is not ‘capable of ready use’ within the meaning ofthis section. A folding knife with a locking bladeis not ‘capable of ready use’ within the meaning ofthis section unlessit is carried in an open andlockedposition.” (/d., at p. 245.) Notably, the author of the memo reasonedthat “[fJolding knives that lock should [] be excluded from the definition as the locking mechanism was designed as a safetyfeature and notfor stabbing efficiency. In addition, locking knives are no more ‘capable ofready use’ than a non-locking knife.” (d., at p. 244.) By including nonlocking and locking folding knives, and pocketknives, in the 1997 definition, the Legislature clearly rejected this proposal and instead found that these knives can be capable of ready use depending upon howtheyare carried. The evolution of the statutory definition demonstratesa legislative desire for the definition to be broad enoughto includeall knives, even nonlocking folding knives and pocketknives, that could be readily used as stabbing instrumentsto inflict serious injury or death, while also narrow enough to exclude common pocketknives carried in a safe manner. The Court ofAppeal’s focus on the blade being altered, fixed, and immovable marksa return to the long-abandoned approach ofdefining dirks and daggers by their physical design, rather than their capacity for ready use. This court should establish that a folding knife or pocketknife that is carried with the blade exposed and secured into a position capable of ready use as a stabbing weapon,provides sufficient evidence to sustain a conviction for carrying a concealed dirk or dagger. (...continued) Reorganization ofDeadly WeaponStatutes, supra, 38 Cal. L. Revision Comm’n Reports 217.) . 25 CONCLUSION Forthe reasons set forth above, this court should reverse the decision below and hold that a pocketknife concealed with the blade secured in an open position can provide sufficient evidence to support a conviction for possession ofa dirk or dagger. Dated: October 29, 2014 Respectfully submitted, KAMALA D. HARRIS Attorney General of California GERALD ENGLER Chief Assistant Attorney General STEVE OETTING Deputy Solicitor General JENNIFER TROUNG Deputy Attorney General JULIE L. GARLAND Senior Assistant Attorney General Attorneysfor Plaintiffand Respondent $D2014808722 80970753.doc 27 CERTIFICATE OF COMPLIANCE I certify that the attached OPENING BRIEF ONTHE MERITS uses a 13 point Times New Romanfont and contains 7,834 words. Dated: October 29, 2014 KAMALAD. HARRIS Attorney General of California PPGnkef JULIE L. GARLAND Senior Assistant Attorney General Attorneysfor Plaintiffand Respondent APPENDIX A DECLARATION OF SERVICE BY U.S. MAIL & ELECTRONIC SERVICE Case Name: People v. Emmanuel Castillolopez No.: §218861 J declare: I am employedin the Office of the Attorney General, whichis the office of a memberofthe California State Bar, at which member's direction this service is made. I am 18 years of age or older and nota party to this matter. I am familiar with the businesspractice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Office of the Attorney Generalis deposited with the United States Postal Service that same dayin the ordinary course ofbusiness. On October 29, 2014, I served the attached OPENING BRIEF ON THE MERITSbyplacing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the internal mailcollection system at the Office of the Attorney General at 110 West A Street, Suite 1100, P.O. Box 85266, San Diego, CA 92186-5266, addressed as follows: San Diego County District Attorney's Office Clerk of the Court Hall of Justice Central Courthouse 330 West Broadway, Ste. 1300 San Diego County Superior Court San Diego, CA 92101-3826 220 West Broadway San Diego, CA 92101-3409 Fourth Appellate District, Division One Court ofAppeal of the State of California Symphony Towers 750 B Street, Suite 300 San Diego, CA 92101 and furthermore,I declare in compliance with California Rules of Court, rules 2.251(i)(1) and 8.71(£)(1); I electronically served a copy of the above document on Appellate Defenders, Inc.'s electronic service address eservice-criminal@adi-sandiego.com and on Raymond M. DiGuiseppe,appellant's attorney, via the registered electronic service address diguiseppe228457@gmail.com by 5:00 p.m. on the close of business day. The Office of the Attorney General's electronic service address is ADIEService@doj.ca.gov. I declare under penalty of perjury under the lawsof the State of California the foregoingiis true andcorrect andthat this declaration was executed on Octobef 29, 2014, at San Diégo, California. Tammy Larson TilWAMU[on Declarant Signature / $D2014808722 80970723.doc
