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The People v. Daniel Maurice Carter

July 6, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
DANIEL MAURICE CARTER, DEFENDANT AND APPELLANT.



(Super. Ct. No. 101257)

The opinion of the court was delivered by: Hoch, J.

P. v. Carter

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Daniel Maurice Carter was convicted of carrying a concealed dirk or dagger and sentenced to five years in state prison. He appeals, claiming his conviction was the result of prejudicial error due to the trial court's failure to instruct the jury sua sponte on the defense of accident. Defendant also claims his counsel rendered ineffective assistance by failing to request the accident instruction. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

While on patrol at approximately 10:20 p.m. on March 11, 2010, Davis Police Officer Sean Bellamy noticed defendant, who was wearing dark clothing, standing near the gate of a storage facility. Knowing the facility was closed, Bellamy approached defendant in his marked patrol car. When he did, defendant looked over his shoulder, then turned and started walking in the opposite direction. Officer Bellamy parked and aimed his spotlight at defendant. He stepped out of the car and asked defendant, "'hey, man, what's up?'" Defendant responded, "'nothing.'" He told Bellamy he was from Sacramento and said he was going to meet a friend in West Sacramento but got on the wrong bus and ended up in Davis.

Prior to conducting a search, Bellamy asked defendant if he "had anything on him he shouldn't have." Defendant said he had a knife in his pocket. Bellamy reached into the right-side pocket of defendant's jacket and felt an unopened can of beer and the handle of a knife. The blade of the knife was facing downward and the tip of the blade was facing forward. First, Officer Bellamy removed the can of beer. Next, he pulled the knife out and saw that it was a folding knife with a three and one-half inch blade which was open and locked into position. Defendant first told Officer Bellamy he knew the knife was in his pocket, but did not know that it was open. He then explained that he had just picked his jacket up from his mother's house and did not know what was in the pockets. When Bellamy pointed out that defendant had already said he knew the knife was in his pocket, defendant stated he knew the knife was there but did not know it was locked open, explaining that the bolts in the knife must be loose and the knife must have opened by itself while inside his pocket. Bellamy examined the knife and tried without success to "flick" it open with one hand.

Defendant was arrested and charged with a single count of carrying a concealed dirk or dagger in violation of Penal Code section 12020, subdivision (a)(4). The information also alleged a prior serious felony conviction (Pen. Code, § 667, subds. (c)-(i)), and a prior prison term (Pen. Code, § 667.5, subd. (b)).

Officer Bellamy was the sole witness at trial. The jury found defendant guilty as charged. The court held a bifurcated proceeding on the prior strike and prior prison term enhancements and found both to be true. The court denied probation and sentenced defendant to five years in state prison.

Defendant filed a timely notice of appeal.

DISCUSSION

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