San Francisco, CA (November 15, 2008) – The American Knife & Tool Institute was asked to prepare an amicus curiae (friend of the court) brief on behalf of the defendant in the case detailed below. 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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
Plaintiff and Respondent,
FERNANDO LOPEZ LOPEZ,
Defendant and Appellant.
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).(See Footnote 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.
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.”
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.
The judgment is reversed.
MARCHIANO, P. J.
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. [P] 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. [P] 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.”