P. v. Blackshire

Filed 10/17/06 P. v. Blackshire CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Ann I. Jones, Judge. Reversed in part, affirmed in part.

Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Marc E. Turchin and David A. Wildman, Deputy Attorneys General for Plaintiff and Respondent.

______________________

In this appeal, Jason Blackshire challenges his conviction for carrying a dirk or dagger and possession of marijuana for sale. He claims the evidence was insufficient to support conviction on those counts. In the event we find the evidence sufficient on the possession for sale, appellant asserts his conviction on the lesser included offense of possession of marijuana must be reversed. We find sufficient evidence to support his conviction on the weapons charge and on the possession for sale, and reverse his conviction on the lesser offense.

FACTUAL AND PROCEDURAL SUMMARY^[1]

On June 7, 2004, Los Angeles Police Officer Bradley Hearn and his partner were conducting an investigation in the vicinity of 45th Street and Vermont Avenue. Mitchell Taylor approached the officers and told them: “Hey, there is a guy in the back of that bus who shot and killed my mom.” Taylor provided the officers with the individual’s name and description, and his location on the bus. The officers followed the bus. When it stopped and the rear doors opened, Officer Hearn stepped onto the bus, located the individual, identified as appellant, and asked him to come out. The officers ran his name through the police computer and determined that there was an outstanding warrant for his arrest on a homicide investigation.

While appellant was being detained, the bus driver walked to the back of the bus, picked up a backpack and handed it to the officers, explaining, “This is his backpack.” Officer Hearn turned to appellant and asked him if it was his. He replied, “Yeah, this is mine.” After appellant was arrested, the officers searched the backpack. Inside they found a large, fixed-blade knife in a sheath. They found two small packages of marijuana in appellant’s pocket, and several more baggies of marijuana in his backpack. In a toiletry bag inside the backpack, the officers found a substance later identified as cocaine base.

Appellant was charged with murder (count 1), attempted murder (count 2), assault with a firearm (count 3), carrying a dirk or dagger (count 4), sale or transportation of marijuana (count 5), possession of cocaine base (count 6) and child abuse (counts 7 and 8). Following a jury trial, appellant was found guilty on count 4, carrying a dirk or dagger; count 5, possession of marijuana for sale and the lesser included offense of possession of marijuana; and count 6, possession of cocaine base. He was found not guilty on all remaining counts. He was sentenced to an aggregate term of three years and four months. This is a timely appeal from the judgment of conviction.

DISCUSSION

I

Appellant claims the evidence was insufficient to support his conviction for violation of Penal Code^[2] section 12020, subdivision (a)(4): carrying a dirk or dagger concealed upon his person. He presents two challenges to the evidence.

First, he argues that the carrying of a knife in its sheath in his backpack does not establish that the item was carried “upon his person.” In the absence of case law interpreting this exact provision, we turn to the interpretation of a similar provision which makes it a crime for a person to carry a firearm “concealed upon his or her person . . . .” (§ 12025, subd. (a)(2).)

In People v. Dunn (1976) 61 Cal.App.3d Supp.12, the defendant was carrying a handgun inside a locked suitcase. He asserted, as appellant does, that the weapon was not carried concealed “‘upon his person’” as required by the statute. He argued that the Legislature meant the phrase “‘upon his person’” to include “a man’s attire or clothing exclusive of handbags, attaché cases, suitcases, and the like.” (Id. at Supp. 13.) He acknowledged, however, that with respect to a woman, the legislative intent was to include items such as purses and handbags. The court rejected this claim: “We hold that the Legislature intended to proscribe the carrying of concealed weapons by both men and women and that a handgun concealed in a suitcase and carried by appellant is sufficiently ‘upon his person’ to constitute a violation of section 12025.” (Dunn, supra, 61 Cal.App.3d at Supp. 14, citing People v. Pugach (1964) 15 N.Y. 2d 65 [255 N.Y.S.2d 833, 204 N.E. 2d 176] [loaded firearm concealed in a brief case carried by a defendant is “concealed upon his person”].)

We find no distinction between these cases and appellant’s. A knife concealed in a backpack carried by appellant is “upon his person” within the meaning of section 12020, subdivision (a)(4).

Appellant also argues that the knife, as carried, was not capable of ready use, as required under section 12020, subdivision (c)(24). That subdivision provides: “As used in this section, a ‘dirk’ or ‘dagger’ means 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. A nonlocking folding knife, a folding knife that is not prohibited 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.”

Appellant’s knife was not a folding knife where the blade is only exposed when opened. Instead, the blade was fixed in position; it did not need to be locked into place. It was capable of ready use as a stabbing weapon, within the meaning of section 12020, subdivision (c)(24).

Appellant relies on People v. Sisneros (1997) 57 Cal.App.4th 1454, where the court found that a knife which required assembly before it could be used was not “‘capable of ready use as a stabbing weapon.’” The court described the knife in Sisneros as “a cylindrical device approximately four and one-half inches long and one-half inch in diameter. Unscrewing the end of the device exposes a blade, which can then be turned around and screwed onto the cylinder resulting in a knife approximately six and three-fourths inches long, including a blade slightly over two and one-half inches long.” (Id. at p. 1455.) The court held that a device that must be unscrewed a full five revolutions to expose the blade, then screwed five revolutions to attach the blade to the handle, was not capable of ready use as a stabbing weapon. (Sisneros, supra, 57 Cal.App.4th at p. 1457.)

Appellant’s knife did not require assembly. It was fully assembled, and was capable of being used as a stabbing weapon as soon as it was removed from appellant’s backpack and its sheath. The fact that it was inside a container and covered did not render it incapable of ready use. The evidence is sufficient that appellant’s knife was capable of ready use as a stabbing weapon, within the meaning of section 12020, subdivision (c)(24).

II

Appellant claims there was insufficient evidence that he possessed marijuana for sale. Unlawful possession of a controlled substance for sale requires proof that the defendant possessed the substance with the intent to sell, and with knowledge of its presence and its illegal character. (People v. Harris (2000) 83 Cal.App.4th 371, 374.) “Intent to sell may be established by circumstantial evidence.” (Ibid.) “In cases involving possession of marijuana or heroin, experienced officers may give their opinion that the narcotics are held for purposes of sale based upon such matters as the quantity, packaging and normal use of an individual; on the basis of such testimony convictions of possession for purpose of sale have been upheld.” (People v. Newman (1971) 5 Cal.3d 48, 53, disapproved on another ground in People v. Daniels (1975) 14 Cal.3d 857, 876; People v. Harris, supra, 83 Cal.App.4th at pp. 374-375.)

In this case, Robert Becker, a Los Angeles Police Department narcotics investigator testified that in his opinion, the marijuana was possessed for sale. He explained the basis for his opinion: “On the packaging, the amount of individual baggies as well as the amount of the larger baggie and the 2 baggies, . . . to be what appear to me from the photos to be stems and seeds, that these bags were taken from the larger bag into the smaller bag, and an individual user would have no need to take a large bag and make them into a smaller bag, and that is what I base my opinion on.” On cross-examination, Officer Becker was asked if he was indicating that the smaller bags are indicative of possession for sale. He replied, “Based on the bigger bag as well as the smaller bags and the other bags containing what I believe to be stems and seeds, which is the part of the marijuana which is not usually used.”

This opinion, based on packaging and quantity, is sufficient to support the jury’s determination that the marijuana was possessed for sale.

III

In light of our affirmance of appellant’s conviction for felony possession of marijuana for sale, appellant contends that his conviction on the lesser offense of misdemeanor possession of marijuana must be reversed. A defendant cannot be convicted of an offense and a lesser offense necessarily included within that offense. (People v. Montoya (2004) 33 Cal.4th 1031, 1034.) Respondent agrees, acknowledging that simple possession is a necessarily included lesser offense of possession for sale. (See People v. Clay (1969) 273 Cal.App.2d 279, 284-285.)

For this reason, we reverse appellant’s conviction for the lesser included offense of misdemeanor possession of marijuana.

DISPOSITION

Appellant’s conviction on count 5 for possession of a controlled substance in violation of Health and Safety Code section 11357, subdivision (b) is reversed. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

EPSTEIN, P. J.

We concur:

WILLHITE, J. MANELLA, J.

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^[1] We limit our factual summary to the counts on which appellant was convicted.

^[2] All statutory references are to this code unless otherwise indicated.