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In Re Gilbert R., A Person Coming Under the Juvenile Court Law. v. Gilbert R

November 29, 2012

IN RE GILBERT R., A PERSON COMING UNDER THE JUVENILE COURT LAW. THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
GILBERT R., DEFENDANT AND APPELLANT.



Appeal from an order of the Superior Court of Orange County, David A. Hoffer, Judge. (Super. Ct. No. DL036725)

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

CERTIFIED FOR PUBLICATION

OPINION

Reversed.

Gilbert R. appeals from the juvenile court's order sustaining the district attorney's delinquency petition (Welf. & Inst. Code, § 602) and placing him on supervised probation based on his misdemeanor possession of a switchblade knife as defined in former Penal Code section 653k (now codified at § 17235). (All undesignated statutory references are to the Penal Code.) Gilbert contends the knife he possessed falls under the Legislature's express exception identifying knives that do not constitute a switchblade (former § 653k ["'Switchblade knife' does not include . . ."]), and therefore the evidence does not support the juvenile court's delinquency finding. We agree and accordingly reverse the juvenile court's order.

I FACTUAL AND PROCEDURAL BACKGROUND

Anaheim Police Officer Erin Moore stopped Gilbert on foot near an area where graffiti had recently been sprayed because he matched a description of the suspect. He denied involvement in the offense, but when she asked if he possessed "anything illegal," he produced a knife from his sweatshirt pocket. It was approximately seven inches long, with a three inch blade folded in a closed position, and Moore discovered she could open it with a flick of her wrist. The district attorney filed a delinquency petition based on Gilbert's possession of the knife, and Moore demonstrated at the hearing her ability to open the knife by flipping her wrist.

Sam Martin of Plaza Cutlery at South Coast Plaza testified as a knife and cutlery expert called by the defense. He explained that while military or law enforcement personnel and others trained in the use of knives might be able to open the knife with relative ease by a flick of the wrist, lay users generally would not be able to do so, at least at first. But with practice, "[t]hose who have it in their hand a good number of hours a day would learn a dexterity that could indeed flip the blade like this open."

Martin demonstrated that the knife did not easily open because it had a "positive detent, . . . a mechanism which holds the blade in the closed position and you have to provide enough resistance to overcome that for the blade to swing open." Martin held the knife upside down and shook it, but the blade did not descend despite the shaking. Martin explained the detent operated as "a positive retention device" to keep the blade closed. The detent feature was held in place by a "set screw," which had become "a little bit wobbly," reducing the detent pressure by approximately 15 percent according to Martin, but he explained it remained "well within" the manufacturer's parameters, "functioning in all [sic] fashion."

Martin identified other features of the knife. It did not open with the push of a button alone or in conjunction with a wrist flip. Rather, it had a "thumb stud or thumb disk" along the top part of the blade, which Martin opined conformed to state law governing switchblades (former § 653k) because the knife was "designed to be held in one hand and opened with pressure to the thumb [stud] overcoming the positive detent mechanism."

Martin also explained the knife had other "extra features not found on ordinary pocket knives." Martin identified a mushroom-shaped protrusion on one end as a "glass impactor[:] a button protruding from the end for emergency extraction. You would be using it in a fashion to frankly break the glass and extract a person [from] a vehicle." Martin also pointed out as a feature for "an E.M.T. or . . . other emergency person[nel]" an opening in the body of the knife "which is for . . . seat belt cutting . . . [i]t's to cut straps or other restraints to get a person out of a car." Martin identified the knife in "industry" parlance "as a SARK, S-A-R-K, search and rescue knife."

The juvenile court found Gilbert's knife was a switchblade, and therefore sustained the petition. The court explained it had concluded "a switchblade knife is one that can be opened -- one that can be opened by a flip of the wrist, and this knife can be opened by the flip of a wrist. We saw it several times, both from the officer and from Mr. Martin. [¶] And, as I said, I inspected the knife myself and found that is true, it can be opened by the flip of the wrist. That makes it a switchblade."

II DISCUSSION

Gilbert contends the juvenile court misinterpreted the Legislature's prohibition against "switchblades" as applying to all knives that may be opened by flipping one's wrist, even against mechanical or other resistance and in conjunction with other actions. We agree the court erred and that the evidence could not be reconciled with the conclusion Gilbert possessed a switchblade as that ...


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