American Knife & Tool Institute (AKTI) Keeping Knives in American Lives

AKTI was asked to prepare an amicus curiae (friend of the court) brief on behalf of the defendant in this
case. We did so and also provided a representative when oral arguments were heard by the court.
     In summary, the court upheld the 653k exemption for one-handers in the state’s switchblade statute.
This exemption was initiated and supported by AKTI in 2000/2001 but has been periodically challenged in
various court cases, all of which have upheld 653k.
     This case was an opportunity to argue the merits of the 653k exemption at the appellate level and, once
again, the court agreed that the 653k exemption is valid. The opinion (with footnotes) is published here in
its entirety. Editor

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
FERNANDO LOPEZ LOPEZ,
Defendant and Appellant.
A116300
(Sonoma County
Super. Ct. No. SCR-482358)

     Defendant Fernando Lopez Lopez appeals from a judgment, following a court trial, finding him guilty of
carrying concealed upon his person a dirk or dagger, a felony under Penal Code section 12020,
subdivision (a)(4).1 He contends, among other things, the prosecution did not prove the knife he
concededly carried was a “dirk or dagger.” It seems the superior court did not retain, or has lost, the knife in
question.2 Defendant also contends that its loss has deprived him of his due process right to an appellate
record permitting meaningful review of the evidence leading to his conviction. We agree, and reverse the
judgment for that reason.

BACKGROUND
     On February 26, 2006, police received a report of persons fighting at a location in Rohnert Park. Police
Officers Paul Lawrence and Charles Larson were dispatched to the scene of the reported fighting, where
they made contact with defendant. Officer Lawrence searched defendant and found a knife in his pocket. He
described the knife as a folding knife with a five- to six-inch handle and four- to five-inch blade. The knife
was in the closed position when the officer retrieved it. It was equipped with a metal stud or “thumb assist.”
A “thumb assist” is installed to enable a person to open the blade with his or her thumb. Officer Lawrence
testified defendant’s knife could be opened without the thumb assist, explaining it took only a simple flick of
the wrist to open it. The blade, however, would not drop by its own weight. The court asked the officer to
demonstrate. All agreed it took the officer more than one flick of the wrist to open the knife. Defendant
testified he used the knife in his daily work as a truck accessory assembler, explaining he used it to cut into
and through packaging materials. He stated he opened it using the thumb stud. Defendant testified he had
purchased the knife the previous year from Wal-Mart and had not altered it.
     Section 12020, subdivision (c)(24) defines a “dirk or dagger” 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.” Section 12020, subdivision (c)(24) provides, further, “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.” A folding
knife, therefore, is a “dirk or dagger” only if the blade of the knife is exposed and locked into position. If the
blade is not exposed and locked into position, it is a “dirk or dagger” if it is a knife that is prohibited by
section 653k. (See generally In re George W. (1988) 68 Cal.App.4th 1208, 1211-1215, tracking and
explaining the history leading to the current version of section 1202, subdivision (c)(24).)
     Defendant’s knife was a folding knife. As its blade was not exposed and locked into position it was not a
“dirk” or a “dagger” unless it was a folding knife prohibited by section 653k. Section 653k defines
“switchblade knife,” providing, “ ‘[S]witchblade knife’ means a knife having the appearance of a pocketknife
and includes a spring-blade knife, 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 other mechanical device, or is released by the weight of
the blade or by any type of mechanism whatsoever.” Section 653k contains an exemption, providing, “
‘Switchblade knife’ does not include a knife that opens with one hand utilizing thumb pressure applied
solely to the blade of the knife or a thumb stud attached to 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.”
     Defense counsel argued to the court that defendant’s knife did not meet the statutory definition of
switchblade, pointing out the knife did not spring open, nor would it simply drop open by gravity. Counsel
asserted the knife was designed to open with one hand using thumb pressure and was equipped with a
mechanism that provided resistance, which the officer had to overcome by flicking his wrist. The prosecutor
did not contest this assertion, but countered that even if the knife might not have been a switchblade at
the time of purchase, it had become a “gravity knife” by the time of defendant’s arrest, because it could be
opened with the flick of a wrist without the thumb assist. The prosecutor argued, further, it could be inferred
defendant knew of the knife’s condition. The court took the matter under submission, framing the question
as whether, through wear and tear, the knife had become a gravity knife.
     The court later found defendant guilty, explaining, “I should tell you that . . . the Court handled the knife.
With absolutely no effort, the knife opened and locked in place. I didn’t do anything. I didn’t even do a [West
Side] Story kind of flick. It so easily slid open that it surprised me how quickly it did. So in the Court’s mind
that’s what convinced me beyond a reasonable doubt . . . . I don’t use knives that fold. And it flicked open
without any effort on my part, a lay person. And that’s what convinced me beyond a reasonable doubt that it
did qualify under the code and by the evidence that was presented to the Court.”

DISCUSSION
     It is clear from the record the finding of guilt was based on the trial judge’s own experiment with the
knife, conducted outside of the presence of defendant and his attorney. Defendant contends the judge’s
experiment amounted to judicial misconduct. A judge commits misconduct by conducting out-of-court
experiments, abdicating his or her responsibility for deciding the parties’ dispute on the pleadings and
evidence properly brought before the court. (Guadalupe A. v. Superior Court (1991) 234 Cal.App.3d 100,
108-109.) But even in the absence of misconduct, the judge’s reliance on her own examination of the knife
mandates reversal because that evidence cannot be meaningfully reviewed here.
     A defendant’s due process rights include an accurate record on appeal. (In re Roderick S. (1981) 125
Cal.App.3d 48, 53 (Roderick S.); and see People v. Howard (1992) 1 Cal.4th 1132, 1165 [a defendant is
entitled to a record adequate to permit meaningful review].) The point was made in Roderick S. where, as
here, the defendant was convicted of carrying a concealed dirk or dagger. (Roderick S., supra, at p. 50.) As
here, the testimonial evidence did not clearly establish the knife was a dirk or dagger within the meaning of
sections 12020, subdivision (c)(24) and 653k, and the trial judge, in deciding against the defendant, saw
and examined the knife itself. (Id. at p. 52.) The knife was destroyed and therefore was not available to the
appellate court, which found, “The effect of this unauthorized destruction of the knife is to preclude this court
from making an examination on its own of the critical bit of evidence in this case. . . . Absent a testimonial
description which would constitute evidence, substantial in nature before the juvenile court, and now
absent the device itself, this court is unable to ascertain whether the judge’s view of the knife was in fact
substantial evidence supporting the trial court’s finding. The unauthorized destruction of the knife denies
[the defendant] the opportunity for a fair appellate review of the evidence and is a denial of due process.” (Id.
at p. 53.)
     The People do not dispute that defendant’s due process rights include an appellate record that allows
meaningful review of the evidence considered by the trial court in determining guilt, including evidence of
defendant’s knife. They contend that the record is sufficient because, unlike the record in Roderick S.,
supra, 125 Cal.App.3d 48, it contains a testimonial description of the knife. The problem is that Officer
Lawrence’s testimonial description does not establish the knife was a dirk or dagger, and even if the trial
judge’s experiment and description are considered, they contradict the officer’s description. The judge
indicated there was no resistance to overcome in opening the blade. That evidence is inconsistent with the
evidence the knife did not open, at least at first, when the police officer attempted to open it with a simple
flick of the wrist. It also is inconsistent with the officer’s testimony that the blade did not simply fall out. It
further appears the knife was equipped with the required safety mechanisms even if the court believed they
were not operating correctly. On this record we have no way of reviewing whether those mechanisms were
in fact inoperative or if, for example, the knife was not completely closed when the judge conducted her
experiments so that the mechanisms were not engaged. The judge’s conclusions appear to have been
based on her own examination of the knife, which is exactly the evidence we are unable to review.
     The problem is exacerbated by what appeared to be the view of the prosecution and the judge, that the
knife would meet the definition of an illegal “switchblade knife” if it could be opened by the flick of the wrist
without resort to the thumb assist. Section 653k, however, exempts from that definition any knife that is
designed to open with thumb pressure and is equipped with a detent or other mechanism providing some
resistance.3 That the knife might be opened with the flick of a wrist does not, in and of
itself, remove it from the exemption.
     The People also point out defendant bears the burden of showing the deficiencies in the record are
prejudicial to him (People v. Osband (1996) 13 Cal.4th 622, 663; People v. Coley (1997) 52 Cal.App.4th
964, 970), arguing he has not satisfied that burden because he has not attempted to reconstruct the
missing exhibit by, for example, seeking a reconstruction proceeding. It is true that lost exhibits may be
reconstructed in many instances, and if they can be reconstructed, the appellate court can review them as if
they had not been lost. (Ibid.) The test is whether the exhibits can be reconstructed sufficiently to determine
there was no prejudicial error at trial. (Ibid.) It also is true that, ordinarily, a defendant cannot show prejudice
from the absence of exhibits without first moving for an order from the appellate court to the trial court to
reconstruct the lost exhibit. (Id. at p. 972.) Nonetheless, we agree with defendant that such an order would
be futile under the circumstances of this case. That it might be possible to purchase and observe the same
make and model of knife is not helpful because the prosecution’s case, and the court’s decision, were
based on the condition of the knife when it was found on defendant’s person, not on its condition when
new. Testimonial evidence would be of no help because the record already contains conflicting
descriptions of the condition of the knife. Any additional evidence, in the form of further testimonial
description, would only add to the inconclusive nature of the existing evidence.
     For all of the above reasons, we find defendant has met his burden.

DISPOSITION
The judgment is reversed.
_________________________
STEIN, J.

We concur:
_________________________
MARCHIANO, P. J.
_________________________
MARGULIES, J.

FOOTNOTES:
1 All statutory references are to the Penal Code.
2 The clerk of the superior court has certified that the knife cannot be located. (See Clerk’s Declaration, filed
June 26, 2007.)
3 Prior to 2001, the exemption covered “a knife that opens with one hand utilizing thumb pressure applied
solely to the blade of the knife or a thumb stud attached to the blade,” an exemption that unquestionably
would include defendant’s knife. In 2001 the Legislature, by means of Senate Bill No. 274 (2001-2002 Reg.
Sess.), added the language which, according to the prosecution, rendered defendant’s knife illegal.
Senator Betty Karnette, who authored Senate Bill No. 274, explained the legislative intent: “Section 653k
makes it a misdemeanor to sell or possess upon one’s person a switchblade in
California. . . . Recently there has been concern that the language of the exemption is broadly interpreted to
apply to knives that are essentially switchblades, but that are designed to fall under the language of the
exemption. [¶] In order to ensure that only legitimate one-handed knives are covered, SB 274 narrows the
language to only allow knives to fall under the exemption from the switchblade law if that one-handed
opening knife contains a detent or similar mechanism. Such mechanisms ensure there is a measure of
resistance (no matter how slight) that prevents the knife from being easily
opened with a flick of the wrist [italics added]. Moreover, a detent or similar mechanism is prudent and a
matter of public safety as it will ensure that a blade will not inadvertently come open. [¶] Although some one-
handed opening knives can be opened with a strong flick of the wrist, so long as they contain a detent or
similar mechanism that provides some resistance to opening the knife, then the exemption is triggered.
These knives serve an important utility to many knife users, as well as firefighters, EMT personnel, hunters,
fishermen, and others.” (July 18, 2001 letter from Senator Karnette to Secretary of the Senate Gregory
Schmidt.)
     By all appearances, defendant’s knife, at least when new, was exactly the kind of utility knife the
Legislature did not mean to include in the definition of “switchblade,” and even when it was taken from
defendant, there seems to have been some resistance that had to be overcome before it would open.

“Section 653k, … exempts … any knife that is designed to open with thumb pressure and is equipped with
a detent or other mechanism providing some resistance.”

“Switchblade knife does not include a knife that opens with one hand utilizing thumb pressure applied
solely to the blade of the knife or a thumb stud attached to the blade.”

“Although some one-handed opening knives can be opened with a strong flick of the wrist, so long as they
contain a detent or similar mechanism that provides some resistance to opening the knife, then the
exemption is triggered. These knives serve an important utility to many knife users, as well as firefighters,
EMT personnel, hunters, fishermen, and others.”