APPEAL from a judgment of the Superior Court of San Diego County, Richard S. Whitney, Judge. (Super. Ct. No. SCD229968)
The opinion of the court was delivered by: Haller, J.
CERTIFIED FOR PUBLICATION
Affirmed in part; reversed in part with directions.
Kenyatta Mitchell was found guilty of violating former Penal Code section 12020, subdivision (a)(4), which prohibits the carrying of a concealed dirk or dagger.*fn1 On appeal, he asserts his conviction should be reversed because (1) the statute prohibiting concealed carrying of a dirk or dagger violates the constitutional right to bear arms for self-defense, and (2) the trial court erred in failing to instruct the jury on intent to conceal. We reject these contentions.
Mitchell also asserts the court's findings on prior prison term and strike allegations must be set aside because he was not properly advised of his rights prior to admitting these allegations. We agree. Accordingly, we remand the case for redetermination on the priors and for resentencing.
Finally, Mitchell argues the trial court abused its discretion by imposing a $1,000 restitution fine. We find no abuse of discretion.
FACTUAL AND PROCEDURAL BACKGROUND
At about 9:00 a.m. on September 28, 2010, trolley security officer Francisco Valenzuela removed Mitchell from the trolley because Mitchell did not have a ticket to ride the trolley. Mitchell sat down on a bench at the trolley station while Valenzuela contacted a code compliance officer to issue a citation. Another security officer (Alex Colon) stood behind Mitchell to provide cover. When Mitchell leaned forward on the bench, Colon noticed the silver tip of what appeared to be a knife sticking out of the bottom of Mitchell's sweatshirt. The knife was not visible before Mitchell leaned forward.
Colon signaled to Valenzuela to alert him about the knife, and in response Valenzuela asked Mitchell to stand up and put his hands behind his back. Mitchell complied, and Valenzuela handcuffed him. Valenzuela advised Mitchell that he would be conducting a pat-down search for weapons, and asked if Mitchell had anything that would "poke" him. Mitchell denied that he had anything of this nature. During the pat-down, Valenzuela felt or saw the tip of the knife, and when he raised Mitchell's sweatshirt he observed the remainder of the knife. The knife was in between Mitchell's belt and trousers. Its total length was about 11 inches, and it had a five-inch-long, fixed blade. Mitchell told the security officers that he carried the knife for self-defense. The police were summoned and Mitchell was arrested.
At trial, Mitchell elected to represent himself and testified on his own behalf. On direct examination, Mitchell stated that he was going fishing that day and he uses the knife as a fishing tool. He claimed he was not intentionally trying to hide the knife, and he forgot that he had it. He also testified that he tried to be compliant with the security officer because he did not want to inflame the situation and he "was trying to go about [his] business and hopefully get to work on time that day."
On cross-examination, Mitchell testified that before he left for the trolley that morning he placed the knife between his belt and pants, and he was going to the harbor to fish with a friend who had fishing equipment. Although he was now claiming that he had the knife for fishing purposes, he acknowledged that he did not have a fishing pole with him when he was stopped and he told the security officer that he had the knife for self-defense.
Jury Verdict and Sentence
The jury convicted Mitchell of carrying a concealed dirk or dagger. (§12020, subd. (a)(4).) After the jury's verdict, Mitchell admitted a prior prison term allegation and a prior strike allegation. The court sentenced him to five years in prison, consisting of four years for the concealed-carrying offense (double the two-year middle term pursuant to his strike prior) and one year for the prison prior.
I. Constitutionality of Statute Prohibiting Carrying of
For the first time on appeal, Mitchell asserts that the statute prohibiting the carrying of a concealed dirk or dagger is unconstitutional, both facially and as applied to him. He contends that the statute violates the right to bear arms in self-defense under the Second Amendment of the federal Constitution, as interpreted by the United States Supreme Court in District of Columbia v. Heller (2008) 554 U.S. 570 (Heller). Although a defendant's failure to present an issue to the trial court generally forfeits it on appeal, we exercise our discretion to consider the issue to the extent it presents a pure question of law or involves undisputed facts. (See In re Sheena K. (2007) 40 Cal.4th 875, 880-881, 887-888, fn. 7; Charisma R. v. Kristina S. (2009) 175 Cal.App.4th 361, 384, disapproved on other grounds in Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532, fn. 7.)
To review Mitchell's constitutional challenge, we summarize the statute and the Heller decision, and then evaluate the constitutionality of the statute on its face and as applied to Mitchell.
Section 12020 states: "(a) Any person in this state who does any of the following is punishable by imprisonment in a county jail not exceeding one year or in the state prison: [¶] . . . (4) Carries concealed upon his or her person any dirk or dagger." The statute 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. A nonlocking folding knife, a folding knife that is not prohibited by Section 653k [i.e., a switchblade], or a pocketknife is capable of ready use as a stabbing weapon that may inflict great bodily injury or death only if the blade of the knife is exposed and locked into position."*fn2 (§ 12020, subd. (c)(24).) Further, the statute provides: "Knives carried in sheaths which are worn openly suspended from the waist of the wearer are not concealed within the meaning of this section." (§ 12020, subd. (d).)
Thus, the statute generally proscribes the concealed carrying of a knife, but provides exceptions for (1) a knife placed in a sheath and visibly suspended from the waist, and (2) a nonswitchblade folding or pocketknife if the blade is not exposed and locked. (See In re Luke W. (2001) 88 Cal.App.4th 650, 653; In re George W. (1998) 68 Cal.App.4th 1208, 1213-1215.) The Legislature's purpose in enacting the statute was to combat the dangers arising from the concealment of weapons. (See In re Luke W., supra, 88 Cal.4th at p. 653.) "The policy underlying the prohibition against concealed weapons is based on the protection of those persons who may come into contact with a weapon bearer. If a weapon is not concealed, one may take notice of the weapon and its owner and govern oneself accordingly, but no such opportunity for cautious behavior or self-preservation exists for one encountering the bearer of a concealed weapon. In light of this policy, the question whether a particular weapon was concealed should be considered from the point of view of one approaching the location of the weapon, and the intent of the defendant as to concealment should not be considered, since a defendant's innocent intent does not make a concealed weapon any more visible." (94 C.J.S. (2001) Weapons, § 21, p. 594.)
In short, the prohibition against carrying a concealed dirk or dagger is designed to give third parties the opportunity to protect themselves from the risk of a surprise attack by a person carrying a weapon. (See In re Luke W., supra, 88 Cal.App.4th at p. 653.) The openly-displayed sheathed knife exception does not detract from the statutory purpose because the bearer's possession of the knife is visible. Similarly, the folding or pocketknife exception is consistent with the statute's objective because folded knives are not capable of ready use "without a number of intervening machinations that give the intended victim time to anticipate and/or prevent an attack." (Ibid.)
The statute does not require that the defendant intend to use the concealed dirk or dagger as a stabbing instrument. (People v. Rubalcava (2000) 23 Cal.4th 322, 331 (Rubalcava).) However, "the absence of a specific intent requirement does not make the carrying of a concealed dirk or dagger a strict liability offense." (Ibid.) Although a "defendant's intended use of the instrument [is not] an element of the offense, . . . to 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.'. . . A defendant who does not know that he is carrying the weapon or that the concealed instrument may be used as a stabbing weapon is therefore not guilty . . . ." (Id. at pp. 331-332.)
In addition to incorporating a knowledge element, the California Supreme Court has generally recognized that when a defendant is charged with an offense that penalizes possession of an instrument that is ordinarily usable for peaceful purposes, the defendant may justify the possession by showing the possession was "in accordance with [the instrument's] ordinary legitimate design." (People v. Grubb (1965) 63 Cal.2d 614, 621, fn. 9; see Rubalcava, supra, 23 Cal.4th at p. 329 ["the surrounding circumstances of possession--including defendant's intended use--were relevant to the issue of whether the [object] was a prohibited weapon"].) Consistent with this principle, the standard CALCRIM instruction for the offense of carrying a concealed dirk or dagger directs that when the instrument may have innocent uses, the jury should be given an instruction stating: "When deciding whether the defendant knew the object . . . could be used as a stabbing weapon, consider all the surrounding circumstances, including the time and place of possession. Consider also the destination of the defendant, the alteration of the object from standard form, and other facts, if any." (CALCRIM No. 2501, parentheses and bracketed punctuation omitted; see also CALJIC 12.41 [the "mental state with which a knife or other instrument is carried may be inferred from the evidence, including the attendant circumstances, the time, place, destination of the possessor . . . and any other relevant facts established by the evidence"].)
In Heller, the United States Supreme Court held that the Second Amendment to the federal Constitution codifies the long-existing right of an individual to possess and carry weapons for self-defense in case of confrontation. (Heller, supra, 554 U.S. at pp. 592-595; see also McDonald v. City of Chicago (2010) __ U.S. __ [130 S.Ct. 3020] [Second Amendment applies to the states].) Based on this constitutional right, the Heller court struck down statutes that totally banned handgun possession in the home and required that lawful firearms in the home be rendered inoperable by disassembly or binding with a trigger lock. (Heller, supra, at pp. 628-629, 635.) The court reasoned that the handgun ban prohibited an entire class of arms that was overwhelmingly chosen by society for self-defense, and at a location (the home) where the need for self-defense is most acute. (Ibid.) Further, the requirement that firearms in the home be kept inoperable made it impossible to use them in immediate fashion "for the core lawful purpose of self-defense[.]" (Id. at pp. 630, 635.)
However, the Heller court recognized that the right to bear arms in self-defense, like most constitutional rights, is not unlimited. (Heller, supra, 554 U.S. at pp. 595, 626.) "[T]he right [is] not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." (Id. at p. 626, italics added.) Of particular relevance here, the Heller court commented that the majority of 19th-century courts held that ...