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The People v. Theobald R. Mcdonald

August 27, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
THEOBALD R. MCDONALD, DEFENDANT AND APPELLANT.



(Super. Ct. No. 09F01181)

The opinion of the court was delivered by: Robie , Acting P. J.

P. v. McDonald

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A jury found defendant Theobald McDonald guilty of unlawfully carrying a concealed dirk or dagger and found he had a prior conviction. The court sentenced him to 32 months in prison and awarded him 44 days of actual custody credits plus 22 days of conduct credits.

On appeal, defendant raises five issues. He first contends the trial court erred in denying his motion to suppress because the "the patdown search was [not] justified by specific and articulable facts that would lead a reasonable person to suspect that [he] was armed and dangerous." Second, he argues that a statement by the prosecutor during closing argument regarding his necessity defense amounted to misconduct. Third, he contends the trial court abused its discretion and violated his federal constitutional rights in refusing to take judicial notice that an enhancement on his prior conviction was missing from his "rap sheet." Fourth, he contends the trial court abused its discretion when it failed to strike his prior conviction. Lastly, he contends the equal protection clause "compels that the [most recent] amendment to [Penal Code] section 4019 . . . be applied to award [him] one-for-one conduct credit."

Finding no merit in any of defendant's arguments, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On February 13, 2009, Officer Mark Redlich of the Sacramento Police Department was patrolling with his partner, Officer Gerald Landberg, near 24th Street and Florin Road. The area is an active "problem-oriented policing" project known for drugs, prostitution, and a lot of foot traffic. While patrolling, Officer Redlich's attention was drawn to a nearby parking lot, where it appeared defendant was in an argument with a woman.

Officer Redlich saw the woman with her arms at her side approximately 12 to 18 inches from defendant, who had his hands raised above his head and appeared to be yelling at her. The officers drove to the parking lot to see if the woman was in danger or, if necessary, to prevent a crime from occurring. Once defendant realized the patrol car was headed his direction, he put his arms down, bear hugged the woman, and stayed in that position until the officers arrived.

When Officer Redlich arrived on scene he contacted both parties. After obtaining their names and while his partner checked for outstanding warrants, Officer Redlich had a conversation with the two. During the course of the conversation, he decided to conduct a patdown search of defendant, and in preparation for doing so he asked defendant something to the effect of, "Do you have anything illegal on you?" "Do you have anything sharp?" or "Do you have any weapons?" Defendant responded that he had a knife in his right front jacket pocket. Officer Redlich asked defendant if the blade was exposed, and defendant said that it was. Officer Redlich then asked defendant "if it was sticking up or down and if [he] could retrieve it."*fn1 Officer Redlich then took the concealed knife out of defendant's pocket; it was locked in the open position. He then conducted a patdown search of defendant.

Defendant was charged with unlawfully carrying a concealed dirk or dagger. The information also alleged that he had a prior strike conviction of assault with force likely to produce great bodily injury with a finding that he personally inflicted great bodily injury.

Defendant moved to suppress the knife. In opposition, the prosecution argued that the initial contact with defendant was a consensual encounter rather than a seizure and Officer Redlich had reasonable cause to conduct a patdown search because defendant voluntarily stated that he was carrying a knife. The magistrate found "a reasonable basis for the police officer to have approached the [d]efendant" and, "having formed the intent to do the pat-down search," "it was reasonable for the officer to ask if there was anything present on the [d]efendant's person which might have caused the officer harm during the pat-down search." The magistrate also concluded that the knife "would have inevitably been discovered during the pat-down search either with or without the question and the answer." Alternatively, the magistrate concluded that defendant had not been seized "prior to the question and answer" and "once [defendant] answered that he had a knife . . . , the officer independently had probable cause to conduct a search for the knife."

At trial, defendant testified that he was walking through an alley when a gang of four or five "youngsters" tried to "jump" him. He claimed he pulled the knife out as a "show of force," to defend himself and make sure they did not "knock [him] down." After they saw it, he stuck it back in his pocket and crossed the street to get away ...


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