Filed 6/24/14 P. v. Davolt CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                        E057359

v.                                                                        (Super.Ct.No. SWF1200933)

ELI TANNER DAVOLT,                                                        OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Mark A. Mandio and

Michael J. Rushton, Judges. Affirmed.

         D. Inder Comar, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney

General, Barry Carlton and Seth M. Friedman, Deputy Attorneys General, for Plaintiff

and Respondent.




                                                              1
       A jury found defendant and appellant Eli Tanner Davolt guilty of one count of

carrying a concealed dirk or dagger. (Pen. Code, § 21310.)1 Defendant previously had

a conviction for a violent felony and had served two other prison terms. The trial court

imposed a sentence of the upper term of three years, doubled for a prior strike

conviction. In addition, defendant was given additional one-year consecutive terms for

each of the other two prior prison terms for a total sentence of eight years.

       Six contentions are raised upon appeal: (1) the search that revealed the

concealed knife violated defendant’s Fourth Amendment rights; (2) the search was not

incident to a proper arrest; (3) the concealed dagger statute infringes defendant’s Second

Amendment right to bear arms; (4) the concealed dagger statute is impermissibly vague

under Fourteenth Amendment standards; (5) defendant charges prosecutorial

misconduct at the sentencing hearing before the trial judge; and (6) defendant asserts the

trial judge abused his discretion by sentencing defendant to the upper limit term for the

primary offense. We find no error and affirm.

                      FACTUAL AND PROCEDURAL HISTORY

       Riverside County Sheriff’s Deputy Michael Mosca was the only trial witness. In

his direct testimony, he told how he observed defendant in Lake Elsinore crossing

Riverside Drive on foot, from a fast food parking lot to a convenience store parking lot.

Deputy Mosca described Riverside Drive, at that section of Lake Elsinore, as a “pretty

busy roadway,” with one lane in each direction separated by a median lane. Deputy


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


                                              2
Mosca stated that it “looked like [defendant] wasn’t sure whether he was going to cross

or stop,” but defendant continued to cross the street, making an oncoming car have to

stop abruptly. Deputy Mosca turned into the convenience store parking lot to follow

defendant and contact him regarding the violation. Defendant was wearing a long,

black, hooded sweatshirt and was wearing a two-handled duffel bag on his back ”like a

backpack.” The sweatshirt and duffel bag both hung past defendant’s belt line. Deputy

Mosca told defendant to take off the duffel bag and sit on a nearby planter. He saw

nothing suspicious in defendant’s hands or on his person.

      Deputy Mosca told defendant to stand up and put his hands behind his back so he

could do a pat-down search. He asked defendant if he had “any sharp objects on him

that would hurt me, stick me, or poke me”; defendant said he did not. Deputy Mosca

then lifted defendant’s sweatshirt to expose his waistband. He saw the silver handle of a

knife in a sheath clipped to the back of defendant’s belt or pants. The sheath was

completely inside defendant’s pants. Deputy Mosca did not notice the sheath when he

lifted defendant’s sweatshirt and saw the knife handle.

      Deputy Mosca testified that he removed the knife and threw it to the ground. He

then handcuffed defendant. Defendant, despite being cuffed, reached to the small of his

back, so Deputy Mosca punched him in the ribs to prevent him from reaching another

weapon.




                                            3
        On cross-examination, defense counsel reexamined the jaywalking arrest.

Defense counsel asked Deputy Mosca about defendant’s attempt to cross the street:

        “[Defense counsel:] . . . So when you stated this pedestrian got to the median,

and they kind of paused—kind of paused in the median?

        “[Deputy Mosca:] No, he didn’t pause. The—he was constantly walking.

        “[Defense counsel:] Okay. Well, I believe you—did you state on direct

examination that the other car started to slow down, because they were not sure whether

he was going to continue crossing or not?

        “[Deputy Mosca:] Correct.

        “[Defense counsel:] So he kind of slowed his pace a little bit as if they weren’t

sure whether he was going to continue or not; correct? Is that a fair statement?

        “[Deputy Mosca:] Slowed his pace, yes.

        “[Defense counsel:] So he sees another car coming. He reaches the median and

kind of slows his pace and sees who’s going to go first? There’s a little hesitation there;

is that fair?

        “[Deputy Mosca:] Yeah.

        “[Defense counsel:] Okay. So at that point, it’s fair to say that there’s a little

hesitation. It’s kind of fair to say as an outside observer the pedestrian and vehicle, they

saw each other because there was a little hesitation there. Would that be fair, as well?

        “[Deputy Mosca:] Yes.

        “[Defense counsel:] Okay. So at that point, you see the pedestrian continue to

cross the street to the [convenience store]; correct?


                                              4
         “[Deputy Mosca:] Yes.

         “[Defense counsel:] Then the car started going again or went at his normal

speed?

         “[Deputy Mosca:] No, the car was slowing.

         “[Defense counsel:] Okay. So the car was slowing down and [the] pedestrian

continued to walk across the street; correct?

         “[Deputy Mosca:] Yes.

         “[Defense counsel:] Then that car stopped instead of hitting that pedestrian?

         “[Deputy Mosca:] Correct.”

         Prior to trial, defense counsel moved to bar introduction of the knife, which was

uncovered pursuant to the search conducted by Deputy Mosca. Deputy Mosca testified

that defendant’s speech and demeanor while being questioned about the jaywalking led

him to suspect that defendant was under the influence of a controlled substance, and

motivated him to do the pat-down search for his own safety. Defendant had told Deputy

Mosca that he had “injected heroin within the last three days and that he occasionally

smoked methamphetamine.” Deputy Mosca saw signs of intoxication, such as fidgeting

hands, twitching, restlessness, and unintelligible speech. Deputy Mosca testified that

once he suspected intoxication, defendant was no longer free to go. He then searched

defendant to make “sure [defendant] didn’t have any weapons or anything that could

hurt me during my investigation.”




                                              5
       In ruling on the motion, the court found Deputy Mosca had probable cause to

stop defendant and investigate a jaywalking violation and that the deputy observed

defendant as possibly under the influence of a controlled substance. The court further

found Deputy Mosca’s experience gave the deputy reason to suspect “that sometimes

people that are using controlled substances carry weapons with them.” Finding that

Deputy Mosca behaved reasonably and had either probable cause or reasonable

suspicion at each stage of his investigation, the court denied the suppression motion.

       The prosecution filed motions in limine to be allowed to impeach defendant with

his prior convictions if he took the stand. In addition, the prosecution requested the trial

court inform the jury that, although defendant had prior felony convictions, the case was

not being tried as a “Three Strikes” case. Both motions were granted. After the jury

gave its verdict and was dismissed, defendant chose to admit his prior convictions.

       Defense counsel urged the trial judge to impose a minimal sentence, saying

“[W]e wouldn’t be here if it wasn’t for [defendant’s] prior crimes. What we have here

. . . is a minor offense which is elevated to where it is because of his prior; but this is not

. . . of the spirit, I guess I would say, of the [T]hree [S]trikes law, what we contemplate

as far as having penalties for such offenses.” In arguing that the trial judge should

impose a sentence at the high end of the range, the prosecutor rested on his sentencing

request, adding only “I’ll just point out, [defendant] is a three-striker.” The second

strike, a first degree burglary, was not listed in the probation report but a certified prior

conviction was marked as evidence in the trial. Defendant was sentenced to the upper




                                              6
term: three years for the concealed knife, doubled for the admission of the prior strike,

and a year for each of the two prior convictions.

                                      DISCUSSION

       A.     THE SEARCH

       Defendant asserts the “pat-down” search that uncovered the knife was prohibited

by the Fourth Amendment because Deputy Mosca had no reason to suspect that

defendant was armed and dangerous. As a result, defendant argues the knife should

have been suppressed by the trial court. We find no fault with the search.

       In evaluating a challenge to the trial court’s ruling on a motion to suppress

evidence, we view the record in the light most favorable to the trial court’s ruling and

defer to its factual findings, whether express or implied, if they are supported by

substantial evidence. “‘[A]ll factual conflicts must be resolved in the manner most

favorable to the [superior] court’s disposition on the [suppression] motion.’ [Citation.]”

(People v. Woods (1999) 21 Cal.4th 668, 673-674.) We then exercise our independent

judgment to decide what legal principles are relevant, independently apply them to the

facts, and determine as a matter of law whether the search was unreasonable. (People v.

Glaser (1995) 11 Cal.4th 354, 362.)

       There are three categories of police contacts with individuals: consensual

encounters, detentions, and arrests. “[A] detention does not occur when a police officer

merely approaches an individual on the street and asks a few questions.” (In re Manuel

G. (1997) 16 Cal.4th 805, 821.) A detention occurs when an officer restrains a person’s

liberty to walk away by force or show of authority. (Terry v. Ohio (1968) 392 U.S. 1,


                                             7
19, fn. 16 (Terry).) “A detention is reasonable under the Fourth Amendment 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.” (People v. Souza (1994) 9 Cal.4th 224,

231.) A police officer’s suspicion need only be reasonable to justify a detention.

(People v. Bennett (1998) 17 Cal.4th 373, 386-387.)

       A consensual encounter between police officers and an individual results in no

restraint of an individual’s liberty, and such an encounter may be initiated by police

without any objective justification. (Florida v. Royer (1983) 460 U.S. 491, 497-498.)

A detention, by contrast, is a seizure of an individual, more limited in duration, scope

and purpose than an arrest, and is proper only where there is an “articulable suspicion

that a person has committed or is about to commit a crime.” (Id. at p. 498; Wilson v.

Superior Court (1983) 34 Cal.3d 777, 784.) In United States v. Mendenhall (1980) 446

U.S. 544, 554, the Court determined that an individual is seized, for Fourth Amendment

purposes, where “in view of all of the circumstances surrounding the incident, a

reasonable person would have believed that he was not free to leave.” (Fn. omitted.)

(See also Florida v. Bostick (1991) 501 U.S. 429, 435-436 [police officers may ask

questions of an individual, ask to examine the individual’s identification, and request

consent to conduct a search, so long as they do not convey a message that compliance

with their requests is required].)

       A police officer does not need probable cause to detain someone. (United States

v. Sokolow (1989) 490 U.S. 1, 7-8.) A reasonable suspicion of involvement in criminal


                                              8
activity will justify a temporary stop and detention even though the circumstances are

also consistent with lawful activity. Typically, the purpose of the detention is to resolve

the ambiguity. (People v. Souza, supra, 9 Cal.4th at p. 233; In re Tony C. (1978) 21

Cal.3d 888, 893-894, superseded by statute on another ground as stated in People v.

Lloyd (1992) 4 Cal.App.4th 724, 733; United States v. Arvizu (2002) 534 U.S. 266, 274-

276; Sokolow, at pp. 7-8.)

       Law enforcement officers may conduct a pat-down search incident to a detention

under circumscribed conditions. An officer may conduct a pat-down search to

determine if a person is carrying a weapon after he or she observes suspicious

behavior—prompting reasonable suspicion—indicative of someone who is armed and

dangerous to the officer or others. (Terry, supra, 392 U.S. at p. 24.) The officer’s pat-

down search is justified by the need to “pursue [an] investigation without fear of

violence,” not to unearth evidence of a crime. (Adams v. Williams (1972) 407 U.S. 143,

146.) Before a police officer “places a hand on the person of a citizen in search of

anything, he must have constitutionally adequate, reasonable grounds for doing so.”

(Sibron v. New York (1968) 392 U.S. 40, 64 (Sibron).) If the search extends beyond

what is necessary to determine if the suspect is armed, it exceeds the allowable

parameters of a Terry stop, resulting in suppression of the fruits of the search.

(Minnesota v. Dickerson (1993) 508 U.S. 366, 373.) Otherwise, there is no violation.

       Defendant asserts that Deputy Mosca saw “nothing suspicious” about defendant

prior to conducting his search. Although defendant was slurring his speech, the deputy

could understand defendant’s answers to his questions, and defendant did nothing


                                             9
furtive. Defendant was “fidgety, nervous, and possibly intoxicated,” but cooperative,

and under those circumstances there is nothing that justifies a search. The jaywalking

violation did not justify a pat-down search: our Supreme Court held that typical

pedestrian traffic violations do not justify pat-down searches. In People v. Lawler

(1973) 9 Cal.3d 156, 162, our Supreme Court held that a defendant’s apprehension or

nervousness in talking with police was not “sufficiently unusual or suspicious to warrant

a pat-down search.” As defendant notes, the Supreme Court found pedestrian traffic

violations do not involve the use of weapons. Since there was no “‘no particularized

concern for safety”” testified to by Deputy Mosca prior to the pat-down, it was

unjustified.

       Defendant argues that his appearance of intoxication likewise does not justify a

search. In support of that point, he cites Sibron, supra, 392 U.S. 40. In Sibron, a police

officer observed the defendant talking with some known addicts and took him aside to

talk. The officer said, “‘“You know what I am after,”’” and the defendant reached into

his pocket. The officer simultaneously reached with him, and found several glassine

envelopes containing heroin. (Id. at p. 45.) The Sibron court found it was clear the

officer was seeking heroin and had no fear that the defendant was reaching for a

weapon, hence there was no justification for the search into the defendant’s pocket

absent a criminal act. (Id. at p. 64, fn. 21.) Since there was nothing here to suggest




                                            10
defendant was carrying a weapon, defendant asserts that there was no justification2 for

the search that found his knife. If the search was unlawful, its fruits must be

suppressed. (People v. Mayfield (1997) 14 Cal.4th 668, 760.)

       We find the search proper. Defendant’s interaction with the police began as a

casual encounter, prompted by his crossing of Riverside Drive. Deputy Mosca

reasonably believed that defendant may have been jaywalking in violation of Vehicle

Code section 21954. Defendant is correct that that violation did not justify a pat-down

search. However, Deputy Mosca’s testimony at the suppression hearing makes it clear

the search was made only after he decided to detain defendant on a further suspicion. In

discussing the traffic violation with defendant, Deputy Mosca observed that defendant

appeared intoxicated; defendant admitted to methamphetamine use and the recent

injection of heroin. Based upon his experience as a police officer, Deputy Mosca had a

reasonable suspicion that defendant was intoxicated, perhaps by a controlled substance.

Officer Mosca testified that, at that point, defendant was no longer free to go. The

search that followed was incident to the detention caused by defendant’s apparent

intoxication and admitted drug use.




       2  Defendant also cites United States v. Starks (2004) 301 F.Supp.2d 76, 79, a
federal district court case from Massachusetts, to show the assumption “that drugs and
weapons often go together” is invalid. We note the person searched in Starks, a
passenger in a car, was not the person with a pending drug trafficking case. The search
of the driver was not at issue, and Starks holds only that the driver’s criminal record
does not justify searching her passengers. The precedent is not binding upon us, and, as
discussed post, we find the reasoning unpersuasive.


                                            11
       Defendant’s assertion that the search was unjustified rests upon the fact that there

is no testimony by Deputy Mosca justifying a suspicion that defendant was armed. He

states that it is an impermissible assumption that drugs and weapons often go together.

However, no authority supports the proposition that it is impermissible to search the

person suspected of a drug violation to ensure they are not carrying any weapons.

Experienced police officers must be given the latitude to protect themselves during the

investigation of drug violations through safety searches of intoxicated individuals.

Intoxication impairs judgment and removes inhibitions, raising the danger of violence.

In their respondent’s brief, the People cite several California cases noting that drugs and

weapons were associated. (E.g., People v. Bradford (1995) 38 Cal.App.4th 1733, 1739

[“[I]t is common knowledge that perpetrators of narcotics offenses keep weapons

available to guard their contraband”].) Further, here there is an independent ground

supporting the search. Defendant admitted recent intravenous drug use, and Deputy

Mosca was concerned defendant was carrying something that would “hurt,” “stick,” or

“poke” him. The deputy’s safety required him, at the least, to be sure defendant was not

carrying a hypodermic needle or other device that could accidently injure him, let alone

anything that an intoxicated person would intentionally use as an improvised weapon.

       Unlike in Sibron, the deputy’s search here was not intended to discover

contraband, was not invasive, and was prompted by more than defendant’s association

with drug users. The court found the search was prompted by Deputy Mosca’s honest

and reasonable apprehension that defendant might be carrying something that could




                                            12
injure him. After conducting an independent review of the evidence, we find the

suppression ruling is supported by substantial evidence and affirm.

         B.     SEARCH PURSUANT TO ARREST

         Defendant asserts that, if the knife was discovered as part of a search incident to

an arrest, the arrest justifying the search took place after the search. He states “[t]o the

extent the trial court’s order could be interpreted to suggest that Deputy Mosca had

probable cause to make an arrest prior to the search, such a finding is erroneous.” Not

having made such an interpretation, we affirm the court’s decision not to suppress the

knife.

         A search may be conducted pursuant to an arrest to remove weapons and seize

evidence. (Arizona v. Gant (2009) 556 U.S. 332, 338.) Defendant notes that the

jaywalking violation probably does not justify a custodial arrest, hence a jaywalking

violation would not cover the search that followed. On cross-examination, Deputy

Mosca stated he usually just cited persons stopped for jaywalking. On this basis,

defendant argues neither the jaywalking violation nor the weapons arrest justified the

search that uncovered the knife. He does not discuss the intoxication investigation.

         The People counter that an arrest is permissible in California for fine-only

offenses. (People v. McKay (2002) 27 Cal.4th 601, 605.) Defendant replies that there

was no probable cause for a jaywalking arrest because his crossing of Riverside Drive

did not constitute an “‘immediate hazard.’”

         We have previously found probable cause existed for the investigation of the

jaywalking violation, based upon Deputy Mosca’s testimony that the oncoming car was


                                              13
forced to stop quickly to avoid hitting defendant because of his untimely crossing. Most

significantly, there was no finding here, or in the trial court, that the search was justified

because it was incident to an arrest. As set forth in section A ante, the search was

justified as a necessary precaution for officer safety pursuant to a detention for

investigation of possible intoxication. Accordingly, we again affirm the trial court’s

suppression ruling.

       C.     SECOND AMENDMENT RIGHTS

       Defendant asserts that section 213103 violates his right to keep and bear arms

under the Second Amendment to the United States Constitution. Defendant argues that,

because the statute contains an overbroad, blanket prohibition against carrying a

concealed dirk or dagger on one’s person, the statute violates the Second Amendment

right to bear arms. Finding the law a proper restriction of the manner of bearing arms,

we affirm the conviction.

       The Second Amendment states, “A well regulated Militia, being necessary to the

security of a free State, the right of the people to keep and bear Arms, shall not be

infringed.” The Second Amendment protects an individual’s right to possess and carry

weapons in case of confrontation. (District of Columbia v. Heller (2008) 554 U.S. 570,

592, 595 (Heller).) The Second Amendment is fully applicable to the states by the Due

Process Clause of the Fourteenth Amendment. (McDonald v. City of Chicago (2010)

561 U.S. 742.) While defendant failed to preserve this challenge in the trial court, we

       3Section 21310 was formerly codified as section 12020, subdivision (a)(4).
References in cases to section 12020 refer to section 21310.


                                             14
reach the issue on its merits as a pure question of constitutional law. (See People v.

Yarbrough (2008) 169 Cal.App.4th 303, 310; see also In re Sheena K. (2007) 40 Cal.4th

875, 884.)

       We have previously adopted the intermediate level of scrutiny in reviewing the

constitutionality of arms restrictions, because the statutes did not completely prohibit or

unduly burden the right of law-abiding persons to bear arms, absent guidance from our

Supreme Court. (People v. Ellison (2011) 196 Cal.App.4th 1342, 1347.) Here, too, we

adopt the intermediate or heightened scrutiny standard because section 21310 does not

completely prohibit or unduly burden the right of law-abiding persons to bear arms.

(Ellison, at p. 1347.)

       The law at issue in Heller totally banned handgun possession in the home, and

required that any lawful firearm in the home be disassembled or bound by a trigger lock

at all times, rendering it inoperable. (Heller, supra, 554 U.S. at p. 628.) The Heller

court concluded that a total ban on the possession of handguns in the home, without an

exception for self-defense, was unconstitutional. (Id. at p. 630.) However, the Supreme

Court observed that the right is not unlimited. (Id. at pp. 595, 626.) The “right was not

a right to keep and carry any weapon whatsoever in any manner whatsoever and for

whatever purpose.” (Id. at p. 626.) The court acknowledged the majority of 19th-

century courts that have considered the question, held that prohibitions on carrying

concealed weapons were lawful under the Second Amendment. (Ibid.) It also

cautioned that its holding “should not be taken to cast doubt on longstanding

prohibitions [including] the possession of firearms by felons and the mentally ill, or


                                            15
laws forbidding the carrying of firearms in sensitive places such as schools and

government buildings, or laws imposing conditions and qualifications on the

commercial sale of arms.” (Id. at pp. 626-627.) In so stating, the court indicated its list

was not an exhaustive analysis, but merely examples of “presumptively lawful

regulatory measures.” (Id. at p. 627, fn. 26.)

       The United States Supreme Court expressly included longstanding prohibitions

against carrying concealed weapons in its non-exhaustive list of presumptively lawful

restrictions on the right to bear arms. (Heller, supra, 554 U.S. at p. 626.) For example,

carrying a concealed or concealable firearm, without a permit, in a vehicle, presents a

“‘threat to public order’” that may be “‘“prohibited as a means of preventing physical

harm to persons other than the offender.” [Citation.]’ [Citation.]” (People v.

Yarbrough, supra, 169 Cal.App.4th at p. 314, fn. omitted.) As the court in Yarbrough

observed, a person who carries a concealed firearm on his person or in a vehicle, which

permits him immediate access to the firearm but impedes others from detecting its

presence, poses an imminent threat to public safety. (Ibid, quoting People v. Hodges

(1999) 70 Cal.App.4th 1348, 1357 [holding section 12025, subd. (a) does not violate

substantive due process rights].)

       Defendant asserts, without example, that the statute is overbroad because it

criminalizes otherwise innocent conduct. He states that “on its face [it] criminalizes

conduct that reaches into the home.” The statute is “poorly written,” and defendant

urges that it be struck down. Defendant does not charge that the facts of his case




                                            16
present a unique situation, or that he has been punished for otherwise innocent conduct;

he objects to the broad outline of the law.

       Section 21310 prohibits the carrying of a dirk or dagger that is concealed. It

therefore falls within the “presumptively lawful restrictions” on the right to bear arms.

The fact that the statutory definition of “dirk or dagger” may criminalize some

“innocent” carrying of legal instruments such as steak knives, scissors, and metal

knitting needles does not render the statute unconstitutional because “‘there is no need

to carry such items concealed in public.’” (People v. Rubalcava (2000) 23 Cal.4th 322,

330 (Rubalcava), quoting Sen. Com. On Crim. Procedure, Analysis of Assem. Bill No.

1222 (1995-1996 Reg. Sess.) as amended May 31, 1995, pp. 3, 5-6.) Moreover, it has

been recognized that the fact a statute may capture some innocent conduct in the future

does not rise to the level of a constitutional violation. (Rubalcava, at p. 331; In re R.P.

(2009) 176 Cal.App.4th 562, 569.) A statute is only overbroad in the constitutional

sense if it “‘prohibits a “‘substantial amount of constitutionally protected conduct.’”’

[Citation.]” (Rubalcava, at p. 333, quoting Tobe v. City of Santa Ana (1995) 9 Cal.4th

1069, 1095.) The statute’s reach into the home is not so extreme as to justify finding it

constitutionally impermissible.

       The California Supreme Court has previously determined that section 21310 is

neither vague nor overbroad, and that holding has not been affected by Heller or

McDonald. (See Rubalcava, supra, 23 Cal.4th at pp. 332-333.) Carrying a dirk or

dagger in a sheath worn openly suspended from the waist is not prohibited. (§ 21310.)

Carrying a concealed dirk or dagger in the home or stored in the glove compartment or


                                              17
trunk of a car is not prohibited. Because the statute does not completely ban the

carrying or possession of a dirk or dagger, section 21310 passes constitutional muster

under the intermediate scrutiny standard of review.

       The statute at issue is a limited intrusion on defendant’s Second Amendment

rights. We conclude section 21310, both facially and as applied to defendant, does not

violate defendant’s Second Amendment right to bear arms. The statute is narrowly

tailored to protect the public by prohibiting only carrying a concealed dirk or dagger on

one’s person. Because of its narrow focus, it is not overbroad. The statute is

constitutional.

       D.     VAGUENESS

       Defendant asserts that defining a dirk or dagger as a knife or an instrument “that

is capable of ready use as a stabbing weapon” makes the statute unconstitutionally

vague. Because there is good reason for the Legislature to prohibit the concealed

carrying of stabbing weapons, we disagree.

       For a statute to be impermissible under the Fourteenth Amendment due to

vagueness, it must be found that a person of ordinary intelligence would be unable to

understand what conduct was prohibited, and that the statute encouraged arbitrary and

discriminatory enforcement. (Kolender v. Lawson (1983) 461 U.S. 352, 357-358.) Put

another way, due process of law in this context requires two elements: a criminal

statute must ‘“be definite enough to provide (1) a standard of conduct for those whose

activities are proscribed and (2) a standard for police enforcement and for ascertainment

of guilt.”’ [Citations.]” (Williams v. Garcetti (1993) 5 Cal.4th 561, 567.) A statute


                                           18
must provide at least “minimal guidelines” to prevent “standardless” enforcement that

allows the law to be applied by the whim or personal predilictions of the police.

(Kolender, at p. 358.)

       The presumption is for constitutionality. “Statutes must be upheld unless their

unconstitutionality clearly, positively and unmistakably appears.” (Lockheed Aircraft

Corp. v. Superior Court (1946) 28 Cal.2d 481, 484; Collins v. Riley (1944) 24 Cal.2d

912, 915; People v. Fannin (2001) 91 Cal.App.4th 1399, 1403 [“the constitutionality of

a statute designed to protect the public from dangerous weapons,” such as slingshots or

“billy” clubs, must be sustained if possible].) Useful items may function as

impermissible weapons. One court used the example of a detached table leg, which is

both a furniture part and a usable club. Carrying such an item “at night in a ‘tough’

neighborhood” could be a violation, but “the presence of suspicious circumstances

attendant to possession of the proscribed object does not forge an ironclad case against

defendant. He may be able to demonstrate an innocent usage of the object but the

burden falls upon him to do so.” (People v. Grubb (1966) 63 Cal.2d 614, 621, fn.

omitted, superseded by statute as noted in Rubalcava, supra.)

       Further, “‘to succeed on a facial vagueness challenge to a legislative measure

that does not threaten constitutionally protected conduct . . . a party must do more than

identify some instances in which the application of the statute may be uncertain or

ambiguous; he must demonstrate that “the law is impermissibly vague in all of its

applications.” [Citation.]’ [Citations.]” (People v. Ervin (1997) 53 Cal.App.4th 1323,

1328, quoting Evangelatos v. Superior Court (1988) 44 Cal. 3d 1188, 1201.)


                                            19
Hypothetical vagueness will not rescue defendant: “[P]laintiffs cannot complain of the

vagueness of a statute if the conduct with which they are charged falls clearly within its

bounds.” (Bowland v. Municipal Court (1976) 18 Cal.3d 479, 492.)

       Defendant argues that the definitional phrase “‘other instrument with or without

a handguard that is capable of ready use as a stabbing weapon’” both fails to give fair

notice of what is forbidden and encourages erratic and arbitrary arrests and convictions.

He cites a New York case concerning a prohibition on persons under age 21 carrying

“‘sharp pointed or edged instrument which may be used for cutting or puncturing.’”

(People v. Munoz (1961) 9 N.Y. 2d 51, 56.) The court decided that, because the law

could cover “the most commonly used and innocently possessed devices of everyday

life,” the purpose of the law “could only be to enable prosecution of those whom the

police believe to be bad boys or girls.” (Id. at pp. 57-58) Defendant asserts that section

21310 provides no guidance to know what items are covered by the statute, from knife

and ice-pick to metal files, fountain pens, and toilet articles.

       Defendant was carrying a fixed-blade knife, with a 4- and one-half-inch blade,

carried in a sheath concealed inside his pants. Such items are indisputably intended to

be covered by the prohibition on concealed carrying. While knives have innocent uses,

they are intended to cut and stab. Defendant clearly falls within the bounds of the

statute and cannot argue vagueness. (Bowland v. Municipal Court, supra, 18 Cal.3d at

p. 492; People v Murphy (2001) 25 Cal.4th 136, 149.)

       Furthermore, defendant has not explained the vagueness he finds in the statute or

distinguished this claim from his earlier charge of overbreadth. His argument again


                                              20
resolves into the claim that innocent conduct may be captured by the statute. Rubalcava

settled that issue. (Rubalcava, supra, 23 Cal.4th at p. 331.) Although the law does not

require a specific intent to use the item as a weapon, it does require the defendant

knowingly and intentionally carry an instrument capable of ready use as a stabbing

weapon concealed on his or her person. (Id. at pp. 331-332.) The Rubalcava court

questioned the wisdom of the law, but affirmed its constitutionality. (Id. at p. 333.) We

do so as well.

       E.        PROSECUTORIAL MISCONDUCT

       The prosecutor referred to defendant as a “three-striker” to the trial judge during

sentencing. Defendant asserts that this constituted misconduct and rendered his

sentence unfair. Finding no prejudice to defendant from the comment, we deny relief.

       “Absent a specific Constitutional violation, prosecutorial misconduct implicates

the defendant’s federal constitutional rights only if it is so egregious that it infects the

trial with such unfairness as to make the conviction a denial of due process. [Citation.]”

(People v. Harris (1989) 47 Cal.3d 1047, 1083-1084.) Short of that, only the use of

deceptive or reprehensible methods to persuade the fact finder constitutes prosecutorial

misconduct.

       The prosecutor’s comment referred to an unproven prior conviction, thus it could

not be used to enhance defendant’s sentence. (People v. Rodriguez (2004) 122

Cal.App.4th 121, 128.) Defendant asserts the mention of the unproven prior conviction

must be proven harmless beyond a reasonable doubt. Alternatively, defendant argues

reversal is required if a result more favorable to him was reasonably probable to have


                                              21
been reached in the absence of the remark. (People v. Watson (1956) 46 Cal.2d 818,

837.) In explanation of the prejudice caused by the remark, defendant states only, “it is

reasonably probable that [defendant] would not have received the high term for his

offense,” had the remark not been made.

       The remark did not prejudice defendant at sentencing. Although it should not

have been made, it added nothing of which the trial judge was not already aware. The

complaint and information in the case reported three prior felony convictions, and those

convictions were the subject of pretrial motions. Defendant had the option of a trial on

his prior offenses, but chose to admit his priors. The court found those priors true as

alleged. The court was aware defendant had a prior offense that could have been used

as a second strike and that it had not been proven before him or charged in the

complaint or information. After the prosecutor’s comment, the trial judge inquired:

       “[The Court]: Okay. What was the second strike? Another first-degree

burglary; right?

       “[Prosecutor]: Yes.

       “[Defense counsel]: Regarding the second strike—I’m sorry—I looked at the

probation report and also looked at the CLETS report and did not see a conviction for it.

       “[Prosecutor]: It’s not listed in the probation report but a certified prior

conviction was actually marked as evidence during the trial, so the priors are there for

the court to review.”

       The trial judge then indicated his reasons for the sentence he imposed, and each

time he discussed the effect of defendant’s prior serious felonies he referred to a


                                             22
singular “strike.” Only when he commended the People’s decision not to file a second

strike against defendant as “completely appropriate” did he ever mention the other

strike.

          The trial judge was scrupulous about separating what he knew from presiding at

the trial, from what was properly a consideration at sentencing. Since the trial judge

already knew about the second violent felony offense, the prosecutor’s remark, however

ill-considered, introduced no new material. In both its terms and the trial judge’s

explanation, the sentence was based upon only what was properly before the court. The

trial judge did not find that defendant deserved an upper term because of a mechanical

operation of prior strikes, but because defendant had a heroin addiction that made him

likely to continue to commit crimes. We find no prejudice to defendant from the

prosecutor’s remark about defendant’s additional strike offense.

          F.     SENTENCING DISCRETION

          Defendant charges that the trial judge abused his discretion by sentencing

defendant to the upper limit on the concealed dirk or dagger violation. As there is no

indication that the judge abused his discretion by considering improper or irrelevant

factors, we find the sentence valid.

          California Rules of Court, rule 4.420 states in pertinent part: “(a) When a

sentence of imprisonment is imposed, . . . the sentencing judge must select the upper,

middle, or lower term on each count for which the defendant has been convicted, as

provided in section 1170(b) and these rules.” The court may consider the record in the

case, the probation report, evidence introduced at the sentencing hearing, and “any other


                                              23
factor reasonably related to the sentencing decision,” and “shall select the term which,

in the court’s discretion, best serves the interests of justice.” (Cal. Rules of Court, rule

4.420(b); § 1170, subd. (b).)

       Courts have broad sentencing discretion, and we review a trial court’s sentencing

choices, including whether to impose the upper term, for abuse of discretion. (People v.

Sandoval (2007) 41 Cal.4th 825, 847.) In reviewing for abuse of discretion, we may not

substitute our judgment for that of the trial court. (People v. Carmony (2004) 33 Cal.4th

367, 377.) We must affirm unless there is a clear showing the sentencing choice was

arbitrary, capricious or irrational. (People v. Avalos (1996) 47 Cal.App.4th 1569,

1582.) A trial court abuses its discretion when it relies on circumstances that are not

relevant to its decision or that otherwise constitute an improper basis for the decision.

(People v. Moberly (2009) 176 Cal.App.4th 1191, 1196.)

       A trial court is “required to specify reasons for its sentencing decision, but [is

not] required to cite ‘facts’ that support its decision or to weigh aggravating and

mitigating circumstances.” (People v. Sandoval, supra, 41 Cal.4th at pp. 846-847.)

“[A] trial court is free to base an upper term sentence upon any aggravating

circumstance that the court deems significant, subject to specific prohibitions.” (Id. at

p. 848.) “[T]he existence of a single aggravating circumstance is legally sufficient to

make the defendant eligible for the upper term.” (People v. Black (2007) 41 Cal.4th

799, 813; see also § 1170, subd. (b); Cal. Rules of Court, rule 4.420(b).) “The court’s

discretion to identify aggravating circumstances is otherwise limited only by the

requirement that they be ‘reasonably related to the decision being made.’ [Citation.]”


                                             24
(Sandoval, at p. 848.) Imposition of an upper term sentence is permissible when based

upon the aggravating circumstance of the defendant's criminal history. (Black, at p.

818.)

        Defendant asserts that the trial court did not undertake a serious analysis of the

sentencing factors, and only cited the probation report and the California Rules of

Court. In addition, defendant charges the trial court’s view that defendant’s heroin

addiction was the persistent root cause of his criminal behavior rendered the resulting

sentence arbitrary. Defendant asserts that the court could not impose sentence based

upon one aggravating factor, reference to the probation report, and the effect of

defendant’s intractable heroin addiction. (People v. Fernandez (1990) 226 Cal.App.3d

669.)

        At sentencing, the trial judge first heard from both counsel. The trial court told

counsel it was going to “bottom-line it” in explaining the reasons for the sentence

imposed. Then, the judge discussed the probation report. Rather than reading the report

into the record, the judge announced he would only talk about the factors where he

disagreed; “otherwise you can assume I agree with them.” The trial judge then noted he

agreed the manner of the crime indicated sophistication or professionalism by

defendant. The trial judge stated the crime was “pretty low-grade,” but noted defendant

had such a serious drug problem that “nothing[ is] going to stop him from continuing

the criminality, which puts the public at risk.” The probation report noted defendant

had prior offenses that were numerous, or of increasing seriousness; had served prior

prison terms; was on probation or parole when the crime was committed; and his prior


                                             25
performance on probation or parole was unsatisfactory. There were no circumstances in

mitigation in the probation report, and none were offered by counsel at the sentencing

hearing. The court imposed the maximum sentence based upon the aggravating

circumstances of criminal sophistication, unresolved drug addiction, numerous prior

convictions of increasing severity, and poor results from probation and parole.

       This was well within the wide discretion a trial court has in sentencing a

defendant and was not close to being an “arbitrary, capricious or patently absurd”

decision. (People v. Jordan (1986) 42 Cal.3d 308, 316.) We conclude that the trial

court did not abuse its discretion in sentencing defendant to the upper term.

                                        DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                       MILLER
                                                                                         J.


We concur:


KING
                       Acting P. J.


CODRINGTON
                                   J.




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