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The People v. Kevin Alejandro Pellecer

April 17, 2013

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
KEVIN ALEJANDRO PELLECER, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Los Angeles County. Monica Bachner, Judge. (Los Angeles County Super. Ct. No. BA388585)

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

CERTIFIED FOR PUBLICATION

Reversed.

Defendant Kevin Pellecer appeals from the judgment entered following a jury trial in which he was convicted of carrying a concealed dirk or dagger on his person in violation of former Penal Code section 12020, subdivision (a)(4).*fn1 Defendant contends that his conviction is not supported by substantial evidence because the knives he possessed were inside of his backpack, and he was thus not carrying them on his person. He raises related contentions of misinstruction of the jury and vagueness of the statute. We agree that defendant did not violate the statute because the knives in his backpack were not carried on his person. Accordingly, we reverse defendant's conviction.

BACKGROUND

At 2:30 a.m. on September 5, 2011, Los Angeles Police Department Officers Reynaldo Masangkay and Carlos Landivar responded to a call about a burglary suspect at Barnsdall Park in Los Angeles. They found defendant crouching in a corner of an enclosed patio in the park. Defendant was leaning on a closed backpack. In response to the officers' orders, defendant approached them. The record does not indicate whether defendant took the backpack with him while complying with the officers' orders. Masangkay unzipped the backpack and found inside it a nylon pouch that contained three identical knives. Masangkay testified that he had previously studied martial arts and recognized the knives as shuriken throwing knives, which could be used offensively or defensively for throwing or stabbing. Each knife was three or four inches long, with one sharp end and a ring on the opposite end. Each knife had an identical ribbon attached to its ring. Masangkay testified that the ring could be used as a handle for stabbing, concealing the knife, or "flipping" it.

Detective Michelle Gomez testified that defendant later told her he used the knives as digging tools and that he had previously been arrested for possession of a knife.

Officer Joenador Nepomuceno testified as an expert for the prosecution regarding "edged weapons." He had an extensive background in martial arts and taught edged weapon classes for law enforcement personnel. Nepomuceno testified that the knives found in defendant's backpack are usually sold in sets of three and are principally used for throwing, though they can be used for stabbing. A lanyard, chain, or rope is attached to the ring so that the knife can be retracted after it is thrown.

The jury convicted defendant of carrying a concealed dirk or dagger on his person in violation of former Penal Code section 12020, subdivision (a)(4). (Stats. 2008, ch. 699, § 18, p. 4835.) The court placed defendant on probation for three years on conditions including serving 365 days in jail, with credit for 334 days.

DISCUSSION

In 2011, former section 12020, subdivision (a)(4) provided criminal penalties for anyone who "[c]arries concealed upon his or her person any dirk or dagger."

Defendant contends that his conviction is not supported by substantial evidence because the knives he possessed were inside of his backpack, and he was thus not carrying them on his person. We agree because the ordinary and usual meaning of the words of the statute; the requirement that both the word "[c]arries" and the phrase "upon his or her person" be given significance and effect; and the legislative history of the statute demonstrate that a dirk or dagger inside a carried or adjacent container is not carried "upon his or her person." Accordingly, the knives contained in the backpack upon which defendant leaned were not carried upon his person, and he did not violate the statute.

During deliberations, the jury honed in upon the very issue presented on appeal by requesting that the trial court "[d]efine on his person." Over defendant's objection, the court responded, "'On his person' includes upon the body of a person, or the attire or clothing, or a bag or container carried by the person."

In construing a statute, we attempt to determine the intent of the Legislature. (People v. Albillar (2010) 51 Cal.4th 47, 54.) In determining that intent, we first examine the words of the statute, viewing them in their statutory context and giving them their ordinary and usual meaning, because the language of a statute is usually the most reliable indicator of legislative intent. (Id. at p. 55.) If the language of a statute is unambiguous, the plain meaning controls, and we have no occasion to resort to principles of statutory construction or extrinsic sources. (Ibid.) Significance should be attributed to every word and phrase of a statute, and a construction making some words surplusage should be avoided. (People v. Rodriguez (2012) 55 Cal.4th 1125, 1131.) We consider the statute as a whole, harmonizing the various elements by considering each clause and section in the context of the overall statutory framework. (People v. Jenkins (1995) 10 Cal.4th 234, 246.) We select the construction that best comports with the apparent intent of the Legislature, with a view to promoting the purpose of the statute, and avoiding absurd consequences. (Ibid.) "If the statute is ambiguous, we may consider a variety of extrinsic ...


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