58 Cal.App.5th 630
Cal. Ct. App.2020Background
- On Nov. 7, 2018, eyewitness Sabrina O’Hara found a man with a deep, bleeding hand wound and saw a tall man in dark clothing (identified in court as Hester) yelling threats at the injured man and at her; she called 911 and later identified Hester at a field identification.
- Deputies detained Hester in an alley; a folding, locking box cutter was found in his pants pocket and a second retractable/locking box cutter was found in a backpack he was wearing; no visible blood on the cutters or on Hester.
- Hester was charged with assault with a deadly weapon (dismissed at trial), criminal threats (count 2), and carrying a concealed dirk or dagger (Pen. Code §21310; count 3); allegations included prior strikes and a dangerous-weapon enhancement (weapon use allegation later dismissed).
- After a bench trial the court convicted Hester of criminal threats and carrying a concealed dirk or dagger, struck certain priors under Romero, and sentenced him to six years (doubled term for strike on count 2; concurrent on count 3); Hester appealed.
- On appeal Hester argued (1) insufficiency of the evidence supporting criminal threats (eyewitness ID unreliable) and (2) legal error in treating closed/retractable box cutters as dirks or daggers and treating a box cutter in a backpack worn on the back as concealed "upon the person." The Court of Appeal affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for criminal threats (count 2) | O’Hara’s in-court and 911 identifications and contemporaneous description were credible and sufficient for conviction | O’Hara’s testimony was inconsistent, of negligible weight, and insufficient to convict | Conviction affirmed; credibility and weight for trier of fact; single eyewitness can suffice unless inherently improbable |
| Whether Hester’s box cutters are "dirk or dagger" and whether backpack knife is "on the person" for §21310 | Box cutters locked into position and are "other instrument[s] capable of ready use as a stabbing weapon"; backpack was worn and thus on the person | Closed/retractable blades are exempt as non-switch/nonlocking folding knives; backpack contents are not "upon the person" | Conviction for carrying concealed dirk/dagger affirmed: these cutters did not fall into the statutory nonlocking/folding exemption and a backpack worn on the back is "on the person" (Wade). Court also noted the statute requires knowledge and innocent-use defenses remain available but were rejected on the facts |
Key Cases Cited
- People v. Rodriguez, 20 Cal.4th 1 (familiar standard of review for sufficiency of evidence)
- People v. Boyer, 38 Cal.4th 412 (single eyewitness identification can be sufficient and out-of-court ID is probative)
- People v. Young, 34 Cal.4th 1149 (single witness testimony can support conviction unless inherently improbable)
- People v. Rubalcava, 23 Cal.4th 322 (definition of dirk/dagger includes a knowledge element)
- People v. Grubb, 63 Cal.2d 614 (statutory interpretation allows defense that possession was for ordinary legitimate use)
- People v. Mitchell, 209 Cal.App.4th 1364 (applies Grubb defense to dirk/dagger context; innocent-use/intent is a defense)
- People v. Wade, 63 Cal.4th 137 (a weapon carried in a backpack worn on the body can be "on the person")
- People v. Pellecer, 215 Cal.App.4th 508 (contrast on backpack issue where defendant was merely leaning on backpack)
- People v. Aledamat, 8 Cal.5th 1 (distinguishes assault/deadly-weapon analysis for box cutters; did not decide §16470 dirk/dagger question)