Who decides whether a knife is a “Dirk or Dagger” under California law? DA? Judge? Jury?

“[S]ection 21310 makes it a criminal offense to carry `concealed upon the person any dirk or dagger.'” (People v. Castillolopez (2016) 63 Cal.4th 322, 327 [202 Cal.Rptr.3d 703, 371 P.3d 216]; see § 21310 [“any person in this state who carries concealed upon the person any dirk or dagger” commits a criminal offense punishable as a felony or misdemeanor].) Section 16470 defines a dirk or dagger as “a knife or other instrument with or without a 653*653 handguard that is capable of ready use as a stabbing weapon that may inflict great bodily injury or death.”

“[T]he legislative history is clear and unequivocal: the intent to use the concealed instrument as a stabbing instrument is not an element of the crime of carrying a concealed dirk or dagger.” (People v. Rubalcava (2000) 23 Cal.4th 322, 331 [96 Cal.Rptr.2d 735, 1 P.3d 52]; accord, Stark v. Superior Court (2011) 52 Cal.4th 368, 394-395 [128 Cal.Rptr.3d 611, 257 P.3d 41].) However, a defendant must know the concealed instrument could readily be used as a stabbing weapon. (Rubalcava, at p. 332 [“[T]o 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.'”]; see CALCRIM No. 2501 [“To prove that the defendant is guilty of this crime, the People must prove that: [¶] … [¶] 4. The defendant knew that it could readily be used as a stabbing weapon.”].) Whether a knife is a dirk or dagger is a question of fact for the jury to determine. (People v. Bain (1971) 5 Cal.3d 839, 851 [97 Cal.Rptr. 684, 489 P.2d 564]; People v. Wharton (1992) 5 Cal.App.4th 72, 76 6 Cal.Rptr.2d 673.)

Belloso contends there is insufficient evidence to support the jury’s finding his knife was a dirk or dagger. He admits Deputy Simpkins testified the stainless steel knife had a four-inch fixed blade and was wrapped in paper to prevent it from cutting someone. But Belloso argues Deputy Simpkins did not testify about the characteristics of the knife, including whether it was sharp or dull; whether it had a pointed or rounded edge; or whether the fixed blade was rigid or flexible. He also claims the photograph did not show these characteristics. Further, Belloso asserts the fact the knife was wrapped during trial to prevent it from cutting someone did not mean the knife had the ability to cause great bodily injury or death.

Contrary to Belloso’s contentions, substantial evidence supported the jury’s finding the knife could readily be used as a stabbing weapon. The jury observed the knife at trial, and the photograph of the knife was admitted into evidence. Deputy Simpkins testified the stainless steel knife measured eight to nine inches long, with a four- to four-and-a-half-inch fixed blade. The knife’s blade could not be folded, unlike a pocket knife. The photograph of the knife showed it had a sharp point. Deputy Simpkins explained the knife was wrapped in paper to prevent cuts from handling the knife. The jury could have reasonably inferred from Deputy Simpkins’s testimony the knife was sharp; otherwise, it would not have posed a risk of cutting someone. In addition, Deputy Simpkins testified Belloso was carrying the knife for protection, in light of Belloso’s comments he was carrying the knife because 654*654 he was “sketched out” and not from the area. The jury could have reasonably inferred Belloso would not have carried a dull, rounded-tip knife for protection.

Full case here: People v. Belloso, 42 Cal. App. 5th 647 – Cal: Court of Appeal, 2nd Appellate Dist., 7th Div. 2019, available at https://scholar.google.com/scholar_case?case=7384235712369789969&hl=en&as_sdt=6&as_vis=1&oi=scholarr

Anton Vialtsin, Esq.
LAWSTACHE™ LAW FIRM | Criminal Defense and Business Law
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