Filed 10/16/14 P. v. Smith CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H039617
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. No. SS121632)

         v.

STEPHEN SEBASTIAN SMITH,

         Defendant and Appellant.



         Defendant Stephen Sebastian Smith appeals from a judgment of conviction
entered after a court trial in which he was convicted of possession of a concealed dirk or
dagger (Pen. Code, § 21310 – count 1)1 and resisting a peace officer (§ 148, subd. (a)(1)
– count 2). Defendant also admitted that he had a prior strike conviction (§§ 667,
subds. (b)-(i), 1170.12). The trial court sentenced defendant to 16 months in state prison
on count 1, which was to be served concurrently with a 16-month sentence on count 2.
Defendant’s sentence was doubled to 32 months pursuant to section 1170.12. On appeal,
defendant contends that there was insufficient evidence to support his convictions. He
also contends that section 21310, as applied under the facts of this case, violates the
Second and Fourteenth Amendments to the United States Constitution. We conclude that




1
         All further statutory references are to the Penal Code.
there was insufficient evidence to support defendant’s conviction of resisting a peace
officer and reverse the judgment.


                                     I. Statement of Facts
                                      A. Prosecution Case
       On August 23, 2012, a man who identified himself as Jorge called 911 and stated
that he lived at the Northridge Park Apartments. He reported that he had seen “a guy like
. . . yelling and everything and screaming, and he was like . . . [¶] calling out” at the
apartment complex “two, three minutes ago.” The man had been “just staring” at Jorge
and he had a big knife, which Jorge described as “like a Rambo-type thing.” The man
carried the knife “like kind of, telling me, ‘Oh, I got a knife, so don’t mess with me.’ But
without saying any of that.” Jorge did not want the man to think that he had called the
police. Jorge described the man as “a mix, like Hispanic or black, like somewhere in
there” and he was wearing pants that were “like one-piece. But it goes all the way up.”
Jorge also stated that the man was wearing a faded black sweater and blue jeans. The
man was “kind of bald” and had “cornrows” or “dreadlocks on the back.” The man was
“calling a name out,” and Jorge was concerned about children in the area. The operator
told Jorge that two officers were already en route to the apartment complex.
       Officer Gavin McVeigh, who was wearing his uniform, was dispatched to the
Northridge Park Apartments at about 5:50 p.m. As he drove into the apartment complex,
he observed defendant, who was wearing a black sweatshirt and blue jeans, walking in a
westbound direction. Defendant’s hair was balding, short in front and “a little past his
shoulders” in the back. Officer McVeigh immediately stopped, exited his patrol vehicle,
pointed his gun at defendant, and told him to stop. The officer drew his gun due to the
nature of the call, that is, a “man with a large knife walking around inside the apartment
complex.” Defendant appeared nervous, looked around, and ran. Officer McVeigh was
approximately 25 to 30 feet from the defendant when he told him to stop.
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       As defendant began to run, Officer McVeigh saw that he was concealing a “shiny
metallic” item in the right sleeve of his sweatshirt. As defendant ran, his left arm was
moving in an up and down motion and his right arm was “a little more stiff and it . . .
appeared as though he was using his fingertips to push something up his sleeve.” The
officer saw the item in defendant’s right hand for “[j]ust seconds.” Defendant ran
between two buildings. Officer McVeigh followed him, but he slowed down as he turned
the corner. He lost sight of defendant for “several seconds.” After the officer turned the
corner, he saw defendant entering the office of the apartment complex.
       Other officers arrived and Officer McVeigh informed them of the events. As
Officer McVeigh approached the office, defendant and his sister Wendy Duran exited it.
Defendant then complied with Officer McVeigh’s order to stop and he was taken into
custody. When he was arrested, defendant had a flashlight and some other small items on
his person.
       Sergeant George Lauricella conducted a search of the area around the office and
found a large knife about 20 to 25 feet from the front door of the office. The knife was
the same color as the object that Officer McVeigh had seen defendant hide in his sleeve.
The parties stipulated that the knife found by Sergeant Lauricella did not have
defendant’s fingerprints on it.


                                      B. Defense Case
       Juan Terrones, the maintenance supervisor at the Northridge Park Apartments,
often found items of contraband, such as knives, on the grounds of the property. Duran
was Terrones’s boss.
       Duran, the property manager at the Northridge Park Apartments, was working
when defendant came to the apartment complex about 20 minutes before he was arrested.
When she saw defendant, he did not have a knife.


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       Defendant testified that he ran when he saw the officer because he had marijuana
in his pocket. He denied that he had a knife. Defendant was wearing a black sweatshirt
and blue bib overalls, and he described his hair as long in the back and that he “kind of
shaved” his hair in the front.


                                          C. Rebuttal
       After defendant had waived his Miranda2 rights, he told Officer McVeigh that a
man, who was stalking his sister, put a knife on the ground. Defendant picked it up and
threw it in the garbage can. No knife was found in the garbage can.


                                         II. Discussion
                                 A. Sufficiency of the Evidence
       Defendant contends that there was insufficient evidence to support his convictions.
       “The law we apply in assessing a claim of sufficiency of the evidence is well
established: ‘ “ ‘ “[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.] The
standard is the same under the state and federal due process clauses. [Citation.] ‘We
presume “ ‘in support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence.’ [Citation.] This standard applies whether direct
or circumstantial evidence is involved.” [Citation.]’ [Citation.]” (People v. Gonzales
and Soliz (2011) 52 Cal.4th 254, 294 (Gonzales).)




2
       Miranda v. Arizona (1966) 384 U.S. 436.
                                             4
                          1. Carrying a Concealed Dirk or Dagger
       Defendant argues that there was insufficient evidence that he was carrying a
concealed dirk or dagger. He asserts that the prosecution failed to prove that (1) he
possessed a knife, and (2) even if he did, he substantially concealed the knife.
       Here, two or three minutes before Jorge called 911, he saw a man carrying a large
knife in the Northridge Park Apartments. Two police officers were en route to the
apartment complex before the call ended. Jorge described the man as “kind of bald” and
with “dreadlocks on the back.” Jorge also stated that the man was wearing pants that
were “like one-piece,” and/or blue jeans and a faded black sweater. When Officer
McVeigh arrived at the apartment complex, he saw defendant, who was wearing a black
sweatshirt and blue overalls or blue jeans. Defendant’s hair was balding, short in front,
and “a little past his shoulders” in the back. Thus, there was substantial evidence that
defendant was the man whom Jorge saw carrying a knife.
       Defendant argues, however, that “[t]he evidence does not show whether the police
responded to the apartment complex within five minutes, five hours or five days of the
report that a man had a knife.” There is no merit to this argument. While Jorge was
speaking to the 911 operator, two police officers were en route to the apartment complex.
       Defendant also points out that he did not have dreadlocks or cornrows and there is
nothing in the record regarding his race. However, we “ ‘ “ ‘ “must review the whole
record in the light most favorable to the judgment . . . .” ’ ” ’ ” (Gonzales, supra, 52
Cal.4th at p. 294.) Here, defendant met the general description of a balding man, who
had hair to his shoulders and was wearing a black sweater and blue jeans. Moreover, the
trial court observed defendant’s appearance in court in making its determination as to
whether defendant sufficiently matched the ethnic or racial description provided by Jorge.
       Defendant next contends that “only speculation supports the conclusion” that
defendant carried the knife. We disagree.


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       As defendant fled, Officer McVeigh saw that he was concealing a “shiny metallic”
item in the right sleeve of his sweatshirt. While defendant was running, his left arm was
moving in an up and down motion and his right arm was “a little more stiff and it . . .
appeared as though he was using his fingertips to push something up his sleeve.” Though
defendant did not have a knife in his possession when he was arrested, an officer found a
silver knife in the bushes along the path of defendant’s flight. This knife was the same
color as the item that Officer McVeigh saw in defendant’s sleeve. Thus, there was
substantial evidence that defendant had a concealed knife which he tossed into the bushes
as he ran away from the officer.
       Defendant also argues that, even assuming he possessed a knife, there was
insufficient evidence that he substantially concealed it on his person.
       “ ‘A defendant need not be totally successful in concealing a dirk to be guilty of’
[citation]’ ” possession of a concealed dirk or dagger. (People v. Wharton (1992) 5
Cal.App.4th 72, 75.) Wharton held that there was substantial evidence that the defendant
concealed a seven and three-eighths inch knife when one and one-half to two inches of
the blade protruded from his pocket. (Id. at p. 75.)
       Here, Officer McVeigh testified that “it appeared as though [defendant] was
concealing an item” in his sleeve and described the item as “shiny metallic.” He also
testified that “[i]t appeared when he was running, it appeared as though his left arm was
running as you would normally run in an up and down motion and his right one was a
little more stiff and it was -- appeared as though he was using his fingertips to push
something up his sleeve.” Defendant focuses on the officer’s use of the word “appear”
and argues that the officer never testified that he “successfully concealed the knife up his
sleeve.” “Appear” is defined as “to be or come in sight.” (Merriam-Webster’s New
Collegiate Dict. (10th ed. 1993) p. 56.) Thus, the officer was testifying as to what he had
observed, that is, that defendant was concealing a shiny, metallic object, later determined
to be a knife, in his sleeve and he described how defendant moved his arms while he was
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running with the knife concealed in his right sleeve. Thus, there was substantial evidence
that defendant had concealed the knife.
                                  2. Resisting a Peace Officer
        Defendant contends that there was insufficient evidence to support his conviction
of resisting a peace officer.
        The elements of resisting arrest are: “ ‘(1) the defendant willfully resisted,
delayed, or obstructed a peace officer, (2) when the officer was engaged in the [lawful]
performance of his or her duties, and (3) the defendant knew or reasonably should have
known that the other person was a peace officer engaged in the performance of his or her
duties. [Citations.]’ [Citation.]” (People v. Ghebretensae (2013) 222 Cal.App.4th 741,
759.)
        Defendant argues that there was insufficient evidence of the second element, that
is, that Officer McVeigh was acting lawfully when he detained him.
        “A detention is lawful ‘when the detaining officer can point to specific articulable
facts that, considered in light of the totality of the circumstances, provide some objective
manifestation that the person detained may be involved in criminal activity.’ [Citation.]”
(People v. Mayfield (1997) 14 Cal.4th 668, 791.) Thus, an investigative stop is valid if
the officer reasonably suspects that “the person stopped is, or is about to be, engaged in
criminal activity.” (United States v. Cortez (1981) 449 U.S. 411, 417.)
        Here, Officer McVeigh was dispatched to the Northridge Park Apartments while
the 911 operator was speaking with Jorge. The officer knew that the “nature of the call”
involved “[a] man with large knife walking around inside the apartment complex.”
However, the prosecution presented no evidence that the officer knew of any facts that
lead him to reasonably suspect that defendant was the person who had a large knife.
Officer McVeigh may well have been informed by dispatch about the perpetrator’s
hairstyle, clothing, racial or ethnic background, but no such testimony was presented at
trial. The officer also did not testify about the threatening behavior of the perpetrator.
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Thus, there was insufficient evidence that the officer was engaged in the lawful
performance of his duties when he ordered defendant at gunpoint to stop.
       The Attorney General argues that this court must view the evidence in the light
most favorable to the judgment and thus we must assume that Officer McVeigh was
aware of the information that Jorge conveyed to the 911 operator. Our standard of
review, however, does not allow us to assume facts that are not part of the record.
       Relying on People v. Dolly (2007) 40 Cal.4th 458 (Dolly), the Attorney General
contends that since defendant never argued that Officer McVeigh did not have the
information provided by Jorge, he has forfeited the issue. Dolly is readily distinguishable
from the present case. In Dolly, the defendant appealed from an order denying his
motion to suppress evidence. (Id. at p. 461.) The defendant challenged, among other
things, the trial court’s implied finding that the officer was aware that the 911 caller had
been threatened with a gun, because the tape of the radio dispatch did not include the
word “threat.” (Id. at p. 466, fn. 1.) It was in this context that Dolly stated “defendant
never argued below that the officers lacked knowledge of the contents of the 911 call,
thereby denying the People the opportunity to offer contrary evidence . . . . [Citations.]”
(Ibid.) More importantly, the officer in Dolly testified that, prior to the stop, he had
received information of the following: a man had threatened a 911 caller with a gun, a
detailed physical description of the man, and the man’s location. (Id. at p. 462.) Here, in
contrast to Dolly, the issue is whether there was sufficient evidence to support a
conviction. Unlike the officer in Dolly, there was no evidence that Officer McVeigh was
aware of Jorge’s physical description of the perpetrator or his threatening behavior.


                                    B. Right to Bear Arms
       For the first time on appeal, defendant contends that his conviction of carrying a
concealed dirk or dagger violated the Second Amendment right to bear arms.


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       “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. [Citations.]” (People v.
Mitchell (2012) 209 Cal.App.4th 1364, 1370.) Mitchell held that the statute prohibiting
carrying a concealed dirk or dagger “does not run afoul of the Second Amendment
because it is narrowly tailored to serve the important governmental interest of preventing
exposure to the risk of surprise attacks . . . .” (Id. at p. 1375.)
       Defendant argues, however, that “the important governmental interest of
protecting others from being surprised by a weapon is not present here,” because
“[e]veryone involved in this case knew that [he] had a knife or a shiny object that could
be a knife . . . .” It is irrelevant whether Officer McVeigh knew that defendant was
carrying a concealed knife. As previously discussed, there was substantial evidence that
defendant was carrying a concealed knife. Since the governmental interest was present
here, there was no Second Amendment violation.


                                        III.    Disposition
       Since there was insufficient evidence to support the conviction for resisting arrest,
we reverse the judgment.




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                                 _______________________________
                                 Mihara, J.



WE CONCUR:




______________________________
Premo, Acting P. J.




______________________________
Elia, J.




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