Filed 7/12/13 P. v. Thomas CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
                               publication or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                        E056203

v.                                                                        (Super.Ct.No. RIF1101096)

ANTHONY THOMAS,                                                           OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Richard A. Erwood,

Judge. Affirmed.

         Gail Ganaja, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Lilia E. Garcia, Kristine A.

Gutierrez and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.




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         A jury found defendant and appellant Anthony Thomas, guilty of (1) carrying a

concealed dirk or dagger (former Pen. Code, § 12020, subd. (a)(4) [eff. Jan. 2009]);1

(2) possessing a device or paraphernalia for injecting or smoking a controlled substance

(former Health & Saf. Code, § 11364, subd. (a) [eff. Jan. 2005]); and (3) willfully

resisting, delaying, or obstructing a peace officer (former Pen. Code, § 148, subd. (a)(1)

[eff. Jan. 2000]). The trial court found true the allegations that defendant suffered (1) a

prior strike conviction (former Pen. Code, §§ 667, subds. (c) & (e)(1), 1170.12, subd.

(c)(1)); and (2) a prior conviction for which he served a prison term (former Pen. Code,

§ 667.5, subd. (b)). The trial court sentenced defendant to prison for a term of five

years.

         Defendant contends (1) substantial evidence does not support his conviction for

carrying a concealed dirk or dagger because the weapon was not capable of being

readily used; and (2) the trial court miscalculated defendant‟s conduct credits (§ 4019).

We affirm the judgment.

                        FACTUAL AND PROCEDURAL HISTORY

         A Riverside police officer placed defendant in handcuffs. The officer then

searched defendant. Defendant was wearing a jacket. The officer “could feel in the

bottom of [defendant‟s] jacket something stiff and rigid inside.” The officer noticed the

tip of a blade “sticking out the back of [defendant‟s] jacket.” The officer found a knife

“in the back lining of [defendant‟s] jacket.” The officer described the knife as “kind of


         1   All further statutory references are to the Penal Code unless indicated.


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like a kitchen knife, like a steak knife, about four-and-a-half-inch-long blade, two-and-

a-half-inch-long black handle.”

       In order to retrieve the knife from the jacket, the officer “had to actually push the

knife through [defendant‟s] jacket.” The officer pushed the knife through the lining and

pulled it out. The officer continued searching defendant.

                                      DISCUSSION

       A.     SUBSTANTIAL EVIDENCE

       Defendant contends substantial evidence does not support his conviction for

carrying a concealed dirk or dagger because the weapon was not capable of being

readily used. We disagree.

       “When a defendant challenges the sufficiency of the evidence, „“[t]he court must

review the whole record in the light most favorable to the judgment below to determine

whether it discloses substantial evidence—that is, evidence which is reasonable,

credible, and of solid value—such that a reasonable trier of fact could find the defendant

guilty beyond a reasonable doubt.” [Citation.]‟ [Citations.]” (People v. Clark (2011)

52 Cal.4th 856, 942-943.) “We „“„presume in support of the judgment the existence of

every fact the trier could reasonably deduce from the evidence.‟” [Citations.]‟

[Citation.]” (Id. at p. 943.)

       Former section 12020, subdivision (a) made it a crime to carry a concealed dirk

or dagger. “Dirk or dagger” was defined as “a knife or other instrument 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


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by Section 653k, 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.” (§ 12020, subd. (c)(24).)

       The requirement of “ready capability[] means to exclude certain devices from”

the definition of “dirk or dagger.” For example, “capable of ready use” excludes a

weapon “that requires assembly before it can be utilized as a weapon.” (People v.

Sisneros (1997) 57 Cal.App.4th 1454, 1457.) Thus, “capable of ready use” refers to the

type of weapon—not the location of the weapon.

       The officer described the knife as “kind of like a kitchen knife, like a steak knife,

about four-and-a-half-inch-long blade, two-and-a-half-inch-long black handle.” Given

that the knife was “like a kitchen knife,” it can be inferred that it had a fixed blade. The

evidence supports a conclusion that the knife could readily be used as a stabbing

weapon that would cause great bodily injury, due to the depth of the potential stab

wounds, i.e., four and one-half inches. Accordingly, we conclude substantial evidence

supports the finding that defendant‟s knife was “capable of ready use.”

       Defendant asserts substantial evidence does not support the “capable of ready

use” finding because the knife was located in the lining of his jacket. For the sake of

analyzing defendant‟s argument, we will accept defendant‟s premise that the phrase

“capable of ready use” can refer to the location of the weapon. Defendant‟s argument

concerning the location of the knife is not persuasive because the tip of the knife blade

was exposed, which means defendant would only have needed to push down the fabric

around the knife blade to have the entire four and one-half inch blade exposed and ready


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to use. The jury could reasonably infer that the act of pushing out the rest of the blade

would take less than a minute, given that defendant would only need to remove the

jacket and push down the fabric around the blade. Moreover, it did not appear from the

officer‟s testimony that he struggled with removing the knife from the jacket. The

officer testified that the tip of the blade was “sticking out the back” of the jacket, so the

officer “pushed it out through the jacket and pulled it out,” and then returned to

searching defendant. The apparent ease with which the knife was removed from the

jacket is further evidence supporting the inference that the knife was “capable of ready

use.”

        Defendant focuses on the officer‟s testimony that there was no hole in the jacket

other than the one the officer made when removing the knife. Specifically, the officer

was asked, “Was there a previous hole in the lining before you created one?” The

officer responded, “I did not see one.” Defendant asserts this evidence shows defendant

did not have “quick access” to the knife. Defendant‟s argument is not persuasive

because he is not looking at the evidence in the light most favorable to the judgment.

The officer also testified that the tip of the knife blade was “sticking out the back of

[defendant‟s] jacket.” The logical inference is that there was a hole in the lining of the

jacket through which the tip of the blade was protruding, prior to the officer removing

the knife. When looking at the contradictory evidence in the light most favorable to the

judgment, there is substantial evidence supporting the jury‟s verdict because the knife

was readily accessible.




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       B.     PRESENTENCE CREDITS

              1.     PROCEDURAL HISTORY

       Defendant was arrested on May 19, 2011. Defendant remained in custody and

was sentenced on April 13, 2012. Defendant‟s actual time in custody was 331 days. At

the sentencing hearing, defendant was granted 164 days of section 4019 credit.

              2.     ANALYSIS

                     a)     Contention

       Defendant contends the trial court miscalculated his conduct credits because it

should have calculated defendant‟s credits at two different rates: one formula for the

days defendant spent in jail prior to October 1, 2011, and a second formula for the days

defendant spent in jail on and after October 1, 2011. Defendant asserts he should have

been given 262 days of conduct credit.

                     b)     Statutory Language

       In the prior version of section 4019, “the Legislature did not expressly declare

whether the January 25, 2010, amendment was to apply retroactively or prospectively.

[Citation.] Here, [in the current version,] the Legislature did expressly state the current

version of section 4019 is to apply prospectively only to defendants who commit their

offenses on or after October 1, 2011.” (People v. Rajanayagam (2012) 211 Cal.App.4th

42, 52, fn. 4 (Rajanayagam).) Consistent with that plain expression, we interpret the

most recent version of section 4019 as applying only to defendants who committed their

offenses on or after October 1, 2011. The statute does not contain a provision granting

trial courts authority to apply a bifurcated or two-tier credit system. The current version


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of the statute is only applicable to inmates who commit crimes on or after October 1,

2011. Thus, we conclude the trial court correctly calculated defendant‟s section 4019

credits per a single accrual system, rather than a bifurcated system.

                     c)     Statutory Ambiguity

       Defendant asserts there is ambiguity in the language of the current version of

section 4019 that must be construed in his favor. For example, defendant highlights

section 4019, subdivision (h), which reflects: “The changes to this section . . . shall

apply prospectively and shall apply to prisoners who are confined to a county jail . . . for

a crime committed on or after October 1, 2011. Any days earned by a prisoner prior to

October 1, 2011, shall be calculated at the rate required by the prior law.” Defendant

asserts this second sentence is problematic because if the current version of section

4019 only applies to people who committed crimes on or after October 1, 2011, then it

is superfluous to include language concerning credits earned prior to October 1, 2011.

Thus, defendant reasons this seemingly conflicting language must be construed in his

favor and interpreted as creating a two-tiered or bifurcated system of credits.

       When a penal statute “is susceptible of two reasonable interpretations, the

appellate court should ordinarily adopt th[e] interpretation more favorable to the

defendant.” (People v. Avery (2002) 27 Cal.4th 49, 57.) We do not find defendant‟s

argument to be persuasive because we do not find an ambiguity in the statutory

language. The first sentence in subdivision (h) plainly sets forth the rule that the current

version of the statute applies only to people to who committed crimes on or after

October 1, 2011. In that context, the second sentence is not ambiguous. The second


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sentence reinforces the idea that people whose crimes were committed prior to October

1, 2011, are subject to earning credits at the rate set forth by the prior law. The second

sentence also clarifies how to address the credit situation for people who commit crimes

while in jail, e.g. those who have earned credits, but have also committed a crime on or

after October 1, 2011. In sum, we do not find an ambiguity in the statutory language.

                      d)     Equal Protection

       Defendant contends equal protection requires his conduct credits be calculated at

the same rate as inmates who committed crimes on or after October 1, 2011, because

there can be no justification for awarding inmates conduct credits at different rates

based on the dates they committed their crimes. We disagree.

       Where a statute at issue distinguishes between classes of people but “neither

touches upon fundamental interests nor is based on gender, there is no equal protection

violation if the challenged classification bears a rational relationship to a legitimate state

purpose. [Citations.]” (Rajanayagam, supra, 211 Cal.App.4th at p. 53.) The interest at

issue in section 4019 is conduct credits or incentives to perform assigned work and

comply with rules and regulations. (Id. at pp. 54-55.) This is not a fundamental

interest, and therefore, the issue is whether the separate treatment of the classes bears a

rational relationship to a legitimate state interest. (Id. at pp. 53-54.)

       The separate classifications at issue in section 4019 bear a rational relationship to

the state interest in cost savings. (Rajanayagam, supra, 211 Cal.App.4th at p. 55.) In

other words, section 4019 is rationally related to the objective of reducing prison




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spending, which was a primary purpose of the Realignment Act. (Id. at p. 49.) Thus,

we conclude defendant‟s equal protection rights were not violated.

                                       DISPOSITION

      The judgment is affirmed.

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                     MILLER
                                                                                      J.


We concur:


RAMIREZ
                              P. J.


HOLLENHORST
                                  J.




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