Filed 5/15/13 In re Joshua M. CA5



                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT


In re JOSHUA M., a Person Coming Under
The Juvenile Court Law.


THE PEOPLE,                                                                            F065178

                   Plaintiff and Respondent,                              (Super. Ct. No. JJD065905)

         v.
                                                                                     OPINION
JOSHUA M.,

                   Defendant and Appellant.


                                                   THE COURT
         APPEAL from a judgment of the Superior Court of Tulare County. Hugo J. Loza,
Commissioner.
         Arthur L. Bowie, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Senior Assistant Attorney General, Stephen G. Herndon and
Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-

        Before Wiseman, Acting P.J., Kane, J., and Detjen, J.
                                    INTRODUCTION
       On December 27, 2011, a petition was filed pursuant to Welfare and Institutions
Code section 602 alleging 14-year-old appellant, Joshua M., feloniously carried a dirk or
dagger (Pen. Code, § 12020, subd. (a)(4)).1 At the conclusion of a contested jurisdiction
hearing on April 25, 2012, the juvenile court found the allegation true beyond a
reasonable doubt. At the disposition hearing on May 23, 2012, the juvenile court granted
Joshua’s motion to treat the felony adjudication as a misdemeanor pursuant to section 17,
subdivision (b). We reject Joshua’s contention on appeal that there was insufficient
evidence before the juvenile court that he possessed a dirk or dagger.
                             FACTS AND PROCEEDINGS
       On December 22, 2011, at 5:30 p.m., Detective Hector Rodriguez of the Tulare
County Sheriff’s Department was working with the gang violence suppression unit and
contacted Joshua at the corner of Avenue 404 and Muller Road in Cutler. Joshua was
with three other people. Rodriguez asked the group if anyone had any weapons. Joshua
replied that he had a sharp screwdriver in one of his pockets.
       While conducting a pat-down search of Joshua, Rodriguez found what initially
appeared to be a screwdriver. Upon closer inspection, Rodriguez determined the object
was a current tester, five inches long with a clear yellow handle that was partly broken.
The current tester was received into evidence as People’s exhibit no. 1.
       Rodriguez testified that a current tester is usually connected by a wire to
something else that registers whether or not there is an electrical current. This object had
no wire, Joshua had no wires on his person, and there was no other device attached to the
object. When Rodriguez asked Joshua if he was doing electrical work, Joshua replied


1      Unless otherwise noted, all statutory references are to the Penal Code. Section
12020, subdivision (a)(4) was reenacted by the Legislature without substantive change as
section 21310, with an operative date of January 1, 2012.


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that he was not. Joshua told Rodriguez that he was a Northern gang associate and
Southern gang members were his enemies. Joshua later admitted that he needed the
tester for protection from Southern gang members.
       Rodriguez explained that the object found on Joshua could be used as a stabbing
weapon, and a month or two earlier, he had investigated a stabbing where a similar type
of weapon was used. The tip of the instrument in that crime came within an inch of the
victim’s lung. Had the instrument hit the victim’s lung, it would have caused great
bodily injury. In Rodriguez’s opinion, the object he found on Joshua was a stabbing
weapon capable of causing great bodily injury.
       Joshua’s mother testified that she had a loose headlight on her Chevy Tahoe and
Joshua would fix it when it went out. On December 22, 2011, Joshua’s grandmother
brought out a toolbox and Joshua started fixing the headlight to his mother’s vehicle.
When shown the object taken from Joshua, his mother said she had seen it before because
it was an electricity tester Joshua had used. The tester had an attached cable. The last
time Joshua’s mother saw the tester, it was not broken.
       Joshua’s grandmother testified that she gave Joshua a box of tools to fix the
headlight to his mother’s vehicle and Joshua had used a current tester during the repair.
The grandmother testified that the wire was missing from the tester but Joshua attached a
cord to it in order to use it.
       Joshua testified that he and his mother went to his grandmother’s house to fix the
headlight to his mother’s vehicle. A wire was disconnected from the headlight so Joshua
used the electric tester. The tester is connected to a wire and light bulb. Joshua had all of
those items, but placed the tester in his pocket and the other items back into the tool box.
Joshua did not plan to keep the tester in his pocket and forgot to put it back into the tool
box. Joshua did not believe the tester could be used for protection.




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       Joshua told the detective he was a Northern associate because he was stopped with
friends who were Northerners and felt he had no other choice than to state that gang as
his affiliation. Joshua was not afraid of Southern gang members. Joshua had other
friends who were Northerners and who were unaffiliated with any gang.
       At the conclusion of the prosecution’s case, defense counsel made a motion
pursuant to Welfare and Institutions Code section 701.1 to dismiss the allegation, arguing
there was insufficient evidence that the tester could be used to commit great bodily
injury, or any type of injury. Defense counsel also argued that the object was not much
different from a fountain pen or a ballpoint pen and therefore could not qualify as a dirk
or dagger. Defense counsel stated she was not suggesting that “the [c]ourt stab itself with
the tester” because “[i]t would hurt, but I don’t think you would die from it or even have
to have stitches.”
       The court described its observations of the tester, which was in evidence. The
court explained that although the tester was not an ice pick or a screwdriver, “it certainly
has a very, very sharp point.” The metal portion of the point was about three-quarters of
an inch held within a piece of plastic that was not sharp. The court found the tester was
sharp enough to stab someone because it was “almost like a spear.” Although the piece
of metal was small, it was very sharp, much sharper than a screwdriver.
       The combination of the metal tip and plastic could create a potential wound of
approximately two and a half inches. At first, the court noted the device was two and a
half inches long, but later found it was three inches long. The court stated that the device
was more akin to an ice pick. The only difference the court found between an ice pick
and the tester was that the metal tip of the tester was not as long. The court concluded the
tester could be used as a stabbing instrument and “could cause some pretty serious
damage.” The court denied defense counsel’s motion to dismiss the allegation.




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       In finding the allegation true, the juvenile court noted that the tester was broken
and Joshua was walking around with it concealed in his pocket. The court found that
Joshua’s admission of gang association was relevant because those involved in gangs are
involved in fights and circumstances where they attack or are attacked by others and
therefore carry weapons. The court concluded that the tester qualified as a dirk or dagger
that could be used to stick into someone’s body, especially where there is soft tissue like
a stomach or an eye, and it was capable of causing a significant amount of damage.
                                       DISCUSSION
       Appellant argues that there was insufficient evidence as a matter of law that the
electrical tester was a dirk or dagger as defined by section 12020, subdivision (a)(4).
Joshua argues that he was merely carrying a current tester he recently used to repair his
mother’s vehicle and that it was not designed as, nor was it, the type of tool that could be
used as a dirk or dagger. We disagree.
       In assessing a claim of insufficiency of evidence, the reviewing court’s task is to
review the entire record in the light most favorable to the judgment to determine whether
it contains substantial evidence -- evidence that is reasonable, credible, and of solid value
such that a reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt. The standard of review is the same in cases in which the prosecution relies mainly
on circumstantial evidence. It is the jury, not the appellate court, which must be
convinced of a defendant’s guilt beyond a reasonable doubt. If the circumstances
reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the
circumstances might also reasonably be reconciled with a contrary finding does not
warrant a reversal of the judgment. (People v. Rodriguez (1999) 20 Cal.4th 1, 11; see
also Jackson v. Virginia (1979) 443 U.S. 307, 317-320 and People v. Johnson (1980) 26
Cal.3d 557, 578.)




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       In reviewing a challenge to the sufficiency of the evidence, appellate courts do not
determine the facts. We examine the record as a whole in the light most favorable to the
judgment and presume the existence of every fact the trier of fact could reasonably
deduce from the evidence in support of the judgment. (People v. Guerra (2006) 37
Cal.4th 1067, 1129 [disapproved on another ground in People v. Rundle (2008) 43
Cal.4th 76, 151]; People v. Kraft (2000) 23 Cal.4th 978, 1053.) Unless the testimony of a
single witness is physically impossible or inherently improbable, it is sufficient for a
conviction. (Evid. Code, § 411; People v. Young (2005) 34 Cal.4th 1149, 1181.)
       The statutory definition of a dirk or dagger is “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.” (§ 12020, subd. (c)(24);2 People v. Rubalcava (2000) 23
Cal.4th 322, 330 (Rubalcava).) In so defining a dirk or dagger, the Legislature
recognized that its revised definition from an earlier version of the statute could
potentially criminalize the innocent “carrying of legal instruments such as steak knives,
scissors and metal knitting needles.” The Legislature, however, concluded that there was
no need to carry such items concealed in public. A violation of section 12020 is a general
intent crime and does not require a specific intent for unlawful use. (Rubalcava, at
p. 330.)
       The tester was either dismantled or broken and no longer contained wires and
apparently could no longer be used for its intended purpose as a testing tool. Joshua
concealed the tester in a pocket. Joshua told Detective Rodriguez that he was not doing
electrical work. The detective testified that a similar device had been used in a prior
assault. This is evidence that such a device could be used to stab a person.



2      Section 12020, subdivision (c)(24) was reenacted by the Legislature without
substantive change as section 16470, with an operative date of January 1, 2012.


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       The juvenile court described the tester as being as sharp as an ice pick with a short
metal tip of three-quarters of an inch and a total length of about three inches. The court
further described the tester as almost like a spear and sharper than a screwdriver. The
court found that the tester could be used to cause great bodily injury to eyes or other soft
tissue. There was substantial evidence before the juvenile court that the electrical tester
met the statutory definition of a dirk or dagger, a device that was concealed and capable
of inflicting great bodily injury.3
                                      DISPOSITION
       The orders of the juvenile court are affirmed.




3       Specific intent to commit an offense with a dirk or dagger is not necessary to
violate section 12020. (Rubalcava, supra, 23 Cal.4th at pp. 330-331.) Evidence adduced
at the hearing shows that Joshua was aware of the electrical tester’s presence and he had
the general intent to possess a dirk or dagger for potential use as a stabbing instrument.


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