Anthony Sculimbrene, Esq.
People v. Mitchell
209 Cal. App. 1364 (Cal. Ct. App., decided October 11, 2012)
California’s concealed carry knife law does not require an intent to conceal or intent to harm.
The defendant, a homeless man, was caught riding a trolley without a ticket. The trolley officer removed him from the train and detained him. As he did another officer approached. When the second officer approached he saw the man from behind, sitting down. In that position, the man’s sweatshirt lifted up and revealed what the officer claimed was the silver tip of a knife. The knife was tucked between the man’s pants and his belt. The second officer discretely notified the first officer, who then asked the defendant if he had anything on him that could poke someone. The defendant denied having anything. The first officer then pat frisked the defendant and found an 11 inch fixed blade knife with a 5 inch handle.
At trial, the defendant refused to accept the assistance of an attorney and tried the case himself. He claimed on the stand that he had been or was about to go fishing and thus was innocently carrying the knife on his person. On cross examination the State proved that the man had no other fishing gear on him and the defendant was convicted of concealed carry of a dirk knife or dagger under California law.
On appeal, the man accepted the assistance of a lawyer and made three arguments. First, he argued that the law violated Heller. Second, he argued that the law was unconstitutionally vague both on its face and as applied to him. Third, he argued that the law was a specific intent crime and that he lacked the intent to conceal the knife as he carried it. The appeals court rejected each argument, but struggled most with the last claim.
In applying Heller, the court found that the concealed carry law did not bar all possession of weapons used in self-defense and thus applied intermediate scrutiny to the law. Using this test and relying on explicit language from Heller that stated concealed carry laws were not automatically invalid, the court rejected the defendant’s Second Amendment argument.
The court also rejected both vagueness arguments. The court first noted that the law was clear about what it banned and that innocent possessions would not be criminalizes because of 1) the jury instruction given in a case involving the law; and 2) the possibility of raising an accident defense. The court did note that to the extent the argument was that a specific intent element was missing with regard to the concealment element, the laws were not vague.
The court then spelled out the specific intent/general intent argument. The defendant argued that he could not be convicted of violating the law because he did not have a specific intent to conceal the knife. The court rejected this argument and again relied on the jury instruction which made clear that innocent possessions were not criminal and that the context of the carry was part of the jury’s focus. The court noted that other cases in California have not required a specific intent. In other words, the defendant’s claim that the law required both an intent to carry and an intent to conceal was not grounded in the law itself. All the State had to show was that the defendant intended to carry a knife that violated the law and that it was concealed. Based on this, the court of appeals upheld the lower court’s finding of guilty.
Notes for Knife Owners
The biggest take away here is always use a lawyer. The Defendant could have had one for free (a public defender is available county by county in California for people that meet certain financial requirements) but here, he decided to go on his own. If Mitchell had accepted the assistance of a lawyer, they could have better preserved issues on appeal and critically evaluated the defense—a claim that the knife was for fishing—and perhaps prevented Mitchell from being destroyed on cross examination.
As the court showed, defense and circumstances of carry matter, and without a good argument the Defendant could not win on defense. The other takeaway here is that the concealed carry law in California is not as strict or protective of knife owners as its language would sound. It seems pretty clear that Mitchell didn’t intend to a hide a knife on his person or that he planned on harming someone with it, but those things didn’t really make a difference here.
- Point 1: Always hire a lawyer. Even if it is just to get another set of eyes on your case that can be valuable.
- Point 2: The concealed carry law in California is not that hard to violate – you don’t need to plan on injuring someone or even plan on concealing the knife to be in violation.
Notes for Attorneys
This case is especially dense. The reasoning seemed strained – resorting to jury instructions to save a statute is not a normal way of writing an opinion. Perhaps had the Defendant (or a lawyer) made objections at the time of trial, the outcome would have been different. Also, it is interesting to see that the court unflinchingly applied Heller to knives. At the worst, Heller requires intermediate scrutiny under this knife law in California. Again, had an attorney helped the defendant, perhaps he or she could have crafted arguments that would have resulted in the intermediate scrutiny knocking down the knife law. This is also a case where a lawyer would have spotted the clearly untrue story from the trolley officers. The idea that the Defendant would have a 5 inch dagger exposed and hanging out of his belt without injury is simply ludicrous. Finally, this is a case that turned on law school distinction of specific intent/general intent crimes. A lawyer would likely have been better prepared for this argument at trial.
- Point 1: Always make contemporaneous objections at trial for appellate purposes.
- Point 2: Heller will likely apply to knives in California.
- Point 3: The knife concealed carry law, on the facts in this case, passes intermediate scrutiny under Heller.
- Point 4: Never forget to challenge obviously impossible factual assertions by the state.
- Point 5: The California concealed carry knife law is not a specific intent crime.