IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo)
July 6, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
DANIEL MAURICE CARTER, DEFENDANT AND APPELLANT.
(Super. Ct. No. 101257)
The opinion of the court was delivered by: Hoch, J.
P. v. Carter
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.
Defendant was convicted of carrying a concealed dirk or dagger. Proof of that offense requires that the People prove (1) the defendant carried a dirk or dagger on his person, (2) the defendant knew he was carrying it, (3) the dirk or dagger was substantially concealed on the defendant's person, and (4) the defendant knew the dirk or dagger could readily be used as a stabbing weapon. The People need not prove the defendant used or intended to use the dirk or dagger as a weapon. (Pen. Code, § 12020, subd. (a); CALCRIM No. 2501.)
Penal Code section 12020 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." (Pen. Code, § 12020, subd. (c)(24).) A pocketknife, a nonlocking folding knife, or a folding knife that is not prohibited by Penal Code Section 653k, is not a dirk or dagger, that is, it is not capable of ready use as a stabbing weapon that may inflict great bodily injury or death, unless the blade of the knife is exposed and locked into position. (Pen. Code, § 12020, subd. (c)(24); CALCRIM No. 2501.)
All persons are capable of committing crimes except those "who committed the act or made the omission charged through misfortune or by accident, when it appears that there was no evil design, intention, or culpable negligence." (Pen. Code, § 26, class Five, italics added.)
Defendant claims the evidence established a reasonable doubt as to whether the knife opened accidentally, thus bringing into question whether defendant had the required mental state. He therefore contends there was substantial evidence to support the defense of accident, thus triggering the trial court's sua sponte duty to instruct the jury on the accident defense.
As we shall explain, defendant neither relied on the accident defense nor was that defense supported by substantial evidence or consistent with the theories on which he did rely.
"In criminal cases, even absent a request, a trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence. [Citation.] A trial court, however, has a duty to instruct on its own initiative on a particular defense only if it appears the defendant is relying on such a defense, or substantial evidence supports the defense and it is consistent with the defendant's theory of the case. [Citation.]" (People v. Booker (2011) 51 Cal.4th 141, 179; see also People v. Salas (2006) 37 Cal.4th 967, 982.)
Here, defendant relied on two theories, neither one of which was accident. First, in his cross-examination of Officer Bellamy, defendant focused on the assertion that Officer Bellamy lied about the knife being open in defendant's pocket. Next, he focused on the theory of intervening manipulation, that in order to access the knife at all, it was necessary to first remove the can of beer from defendant's pocket. With regard to the knife, defendant asked three questions on cross-examination regarding whether or not it was possible to open the knife with one hand, and six questions about the age, appearance, and condition of the knife. Defendant's closing argument*fn1 focused on two theories: (1) Officer Bellamy lied about the knife being open in defendant's pocket; and (2) access to the knife was prevented by the beer can in defendant's pocket.
The claim that the knife accidentally opened in defendant's pocket without defendant's knowledge is inconsistent with the theory advanced by defendant that Officer Bellamy lied in his report and while testifying at trial that the knife was in the open and locked position when he discovered it in defendant's pocket.
Even assuming some consistency between the police officer lying theory and the accident theory, there was no substantial evidence presented at trial that would have triggered the trial court's duty to instruct on its own initiative on the defense of accident. The only evidence presented at trial relating to the knife opening accidentally without defendant's knowledge was Officer Bellamy's testimony regarding his conversation with defendant prior to the arrest. According to Bellamy, defendant first stated he knew the knife was in his pocket but did not know it was open, then contradicted himself and stated that he picked the jacket up from his mother's house and did not know the knife was in the pocket, and then contradicted himself again when he stated that he knew the knife was in the pocket but did not know it was locked open and explained that "the bolts in the knife must be loose and that it opened by itself while inside his pocket." Bellamy testified that he examined the knife at the time of the arrest and attempted to "flick" it open but could not. He tried again at trial, snapping his wrist and using "centrifugal force to open it," and was only able to do so after trying four or five times. Bellamy did not notice anything about the condition of the knife that would suggest either the handle or blade was loose or would open up into a locked position absent somebody purposefully opening it. Although he acknowledged that the fact that he was eventually able to "flick" the knife open with his wrist "could be an indication that they [the bolts] were loose," he confirmed that nothing on the knife appeared to be loose. (Italics added.) This evidence did not constitute substantial evidence supporting the jury instruction defendant sought.
Defendant neither relied on, nor advanced, the theory of accident or any theory consistent therewith, nor was there substantial evidence to support the accident theory. As such, the trial court did not err in failing to instruct the jury on the defense of accident.
Ineffective Assistance of Counsel
Defendant asserts trial counsel was ineffective for failing to request an instruction on the defense of accident.
This claim of ineffective assistance is similar to defendant's earlier argument that the trial court erred in failing to instruct the jury sua sponte. As we have concluded that the trial court did not err in failing to instruct the jury on the defense of accident, it necessarily follows from that conclusion that the failure of defendant's trial counsel to request an instruction on the accident defense did not fall below the standard of a reasonably competent attorney and/or was not prejudicial. (People v. Ochoa (1998) 19 Cal.4th 353, 414 ["A defendant claiming ineffective assistance of counsel under the federal or state Constitution must show both deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of a different outcome"]; see People v. Dennis (1998) 17 Cal.4th 468, 541 [claim of ineffective assistance premised on failure to request jury instruction must fail where defendant was not entitled to such instruction].)
Defendant's trial counsel did not render ineffective assistance by failing to request an instruction on the defense of accident.
The judgment is affirmed.
We concur: RAYE , P. J. HULL , J.