How does a box cutter with a one-inch blade become a dirk or dagger? California has a history of treating knives as prohibited dirks and daggers. A recent court case has put Californians who carry box cutters in jeopardy.
The California Supreme Court has denied a petition filed by defendant Jonathan Hester seeking review of the Court of Appeal’s decision, State v Hester, 58 Cal. App. 5th 630, which upheld a conviction for the concealed carry of a “dirk or dagger.” The items in question were two box cutters.
The circumstances which led to Hester’s arrest are troubling. Sabrina O’Hara (witness) walked to the end of her West Hollywood home’s driveway on the evening of November 7, 2018. She intended to meet a friend. She heard a cry for help and observed Edward Zaccho (victim) leaning against a wall. His hand was bleeding. O’Hara called 911 to report the incident while she ran back to her home to fetch a towel with which to wrap Zaccho’s wounded hand. Upon her return, she observed Jonathan Hester (defendant) about 15 feet away. She heard Hester threaten to harm Zaccho and then her.
Hester left the scene but was stopped shortly after that based on O’Hara’s description. A search incident to arrest revealed a folding box cutter in his front pocket and a retractable box cutter in his backpack. Significantly, there was no blood on either of the box cutters nor was any blood observed on Hester or his clothing.
Hester was charged with assault with a deadly weapon, making criminal threats, and possession of a concealed “dirk or dagger” defined by statute – § 16470 – as:
“dirk” or “dagger” means 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. A nonlocking folding knife, a folding knife that is not prohibited by § 21510, 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.
(§ 21510 pertains to the CA legal automatic knife with a blade not exceeding two inches in length). The blade length of Hester’s box cutters was stated as about one inch.
The case was tried non-jury. At the close of the State’s case, the assault count was dismissed as there was no evidence to support a finding that Hester cut the victim. The victim, Zaccho, did not testify. O’Hara had observed Hester only after she returned with the towel. No forensic or DNA / crime laboratory evidence suggested a link between Hester, the box cutters, and the victim. In addition to the concealed dirk or dagger charge, Hester was also found guilty of making criminal threats, but the “use of a weapon” allegation in connection with the criminal threats was dismissed.
Hester was sentenced to two concurrent terms of six years. He appealed to the California Court of Appeals, which affirmed both convictions in a decision issued on December 14, 2020.
The issue of interest to thousands of people in California and the knife community is how does a box cutter with a one-inch blade become a dirk or dagger? There is no satisfactory answer.
If you give a young boy a hammer, he will treat everything like a nail. The California legislature prohibited the carrying of a dirk or dagger in 1917. Shortly after that, California prosecutors began to treat every knife or cutting instrument as a dirk or dagger.
The California Supreme Court in People v Castillolopez, 371 P.3d 216 (2016), repeated a quote regarding the creation of statutory definitions for dirk and dagger:
In 1993, the Legislature undertook the first of several efforts to supply a definition of “dirk or dagger.” In its initial effort, the Legislature defined ‘dirk’ or ‘dagger’ ” to mean “a knife or other instrument with or without a handguard that is primarily designed, constructed, or altered to be a stabbing instrument designed to inflict great bodily injury or death.” . . . But this definition “ultimately proved too narrow and too difficult of proof. Prosecutors complained that ‘since we can never show that the primary purpose of a butcher knife, hunting knife, survival knife, ice pick, etc., is to cause death or great bodily injury by stabbing, we cannot obtain convictions under the statute,’ even when the person was carrying the concealed instrument for potential use as a weapon.” (citations omitted).
Prosecutors were complaining that they could not convict someone with a hunting knife or a butcher knife under a statute that prohibited dirks and daggers. Their “hammer” – dirk and dagger prohibition – was not a universal tool with which to address all problems.
The above quote was part of a concurring opinion in the case of People v Rubalcava 1 P.3d 52 (2000), which involved the dirk or dagger definition.
The Rubalcava Court recognized the overbroad nature of the definition but undertook to simply construe additional wording as a correction:
we construe the statute to contain a “knowledge” element. . . Thus, to commit the offense, a defendant must still have the requisite guilty mind: that is, the defendant must knowingly and intentionally carry concealed upon his or her person an instrument “that is capable of ready use as a stabbing weapon.” . . . 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 12020.6 [now § 21310].
To “construe” means to interpret. The California Supreme Court applied a splint to a defective statute by assuming it included some additional wording. Accordingly, we are assumed to understand the definition to add the guilty mind element whereby someone is magically imbued with the knowledge that the innocuous sharp instrument is “capable of ready use as a stabbing weapon.”
The Court of Appeals in Hester assumed that the defendant had actually cut the victim despite the fact that the assault with a deadly weapon charge was dismissed:
We agree with the concurring opinion that a morally blameless person carrying a concealed box cutter for innocent purposes, such as a grocery store worker, carpenter, or car mechanic, cannot be convicted of violating Penal Code section 21310. The defendant was convicted of violating section 21310 because he inflicted a deep, bloody wound on the victim and yelled at the victim as he sat slumped against a wall that the defendant would kill him (and the eyewitness, too), leaving the victim in hysterical fear of death. This defendant was not morally blameless, and our holding does not invite prosecutors to prosecute morally blameless people. (underlining supplied for emphasis).
The holding of the Court of Appeals decision clearly invites prosecutors and judges to assume facts not in evidence and not found. It also sets a low standard for the unwritten “knowledge” element in the § 16470 dirk and dagger definition. It is disappointing that the California Supreme Court did not accept the case for review.
The thousands of people in California who routinely carry box cutters are likely oblivious to the fact that some slight departure from correctness may send them to prison. Any knife or cutting instrument with a blade that locks in the open position without regard to blade length may be a dirk or dagger.
Thanks to Attorney Daniel C. Lawson for his insights.
The American Knife & Tool Institute has been instrumental several times in California knife laws and issues.
California Knife Laws
California Appellate Court Again Uphold AKTI’s Signature Bill (formerly 653k) (2012)
California Appellate Court Affirms 653k Exemption for One-hand Opening Knives (2007)
AKTI One-Hander Law Signed in California (2001)
Review Court Case Summaries
Proposition 65 (2017)