P. v. Burk

Filed 7/23/07 P. v. Burk CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Shasta)

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A jury found defendant Melvin Todd Burk guilty of possession of a controlled substance, transportation of a controlled substance, and carrying a concealed dirk or dagger. The court dismissed the possession conviction since it was necessarily included within the transportation conviction. The court also found that defendant had two prior felony burglary convictions.

The court sentenced defendant to two concurrent 25-years-to-life terms in prison. He appeals, claiming: (1) there was insufficient evidence that he possessed a dirk or dagger; and (2) the sentence of 25 years to life for his convictions violates the cruel and unusual punishment ban under federal and state law.

Disagreeing with these contentions, we will affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On December 19, 2004, Police Officer Steven Morehouse was on patrol in eastern Redding when he pulled defendant over for speeding on a motorcycle. Defendant was wearing a leather jacket that covered his waist. During a record check on the motorcycle, defendant leaned forward on the bike, and Officer Morehouse noticed a sheath and a portion of the handle of a knife. After calling in backup, Officer Morehouse confiscated the knife and sheath from defendant.

The knife blade was approximately eight inches long and was folded into the handle of the knife, in a similar fashion to a pocketknife. This knife was unique, however, in that the blade extended beyond the protective covering of the handle by about two inches. The sheath prevented the knife from injuring defendant when it was in his pocket; otherwise, the two inches of the blade that were not encased in the handle might stab him. Officer Morehouse attempted to unfold the knife but could not because the blade appeared to be permanently locked in the folded position. These two unique characteristics of the knife led him to believe that the knife had been modified for use as a stabbing instrument.

After finding the knife, Officer Morehouse was concerned there might be other weapons inside defendants large, gauntlet-style gloves. When he peeled back a portion of one glove, Officer Morehouse discovered a plastic baggie containing methamphetamine.

DISCUSSION

I

There Was Sufficient Evidence That The

Knife Defendant Carried Was A Dirk Or Dagger

Defendant contends there was insufficient evidence that he possessed a dirk or dagger. We disagree.

When considering the sufficiency of evidence, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence that is reasonable, credible and of solid value--from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1572, quoting People v. Snow (2003) 30 Cal.4th 43, 66.)

A person is prohibited from carrying a concealed dirk or dagger, which is defined as a knife or other instrument with or without a hand guard 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, [switchblade knife] 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. (Pen. Code,^[1] 12020, subds. (a)(4) & (c)(24), italics added.)

Defendant argues that the knife he carried does not fit within the meaning of a dirk or dagger because it is a pocketknife that was closed and was not locked into position. Defendant also argues that the blade was only partially exposed. According to defendant, a strict reading of the statute requires full exposure of the blade. (See In re George W. (1998) 68 Cal.App.4th 1208, 1213-1214.)

A pocketknife that is carried with the blade retracted into the handle does not qualify as a dirk or dagger under section 12020 when the blade is not exposed. (In re George W., supra, 68 Cal.App.4th at p. 1215.) The defendant in George W. was holding a Gerber knife in his pocket when a police officer gave him a patdown search. (Id. at p. 1210.) This type of knife allows the blade to be folded into the handle. (Id. at pp. 1210-1211.) The George W. court found there is no evidence in the record demonstrating or tending to suggest the blade of the folding knife in appellants pocket was exposed and locked into position--as opposed to being closed and retracted into its handle. (Id. at p. 1215.) Therefore, the George W. court concluded that the evidence was insufficient to support a finding that the knife at issue was a dirk or dagger within the meaning of section 12020. (In re George W., at p. 1215.)

The reason for the exception in section 12020, subdivision (c)(24) was to avoid criminalizing the carrying of knives that are not capable of ready use because they are carried in a closed, secured state. (In re Luke W. (2001) 88 Cal.App.4th 650, 656.) [S]mall knives obviously designed to be carried in a pocket in a closed state, and which cannot be used until there have been several intervening manipulations, comport with the implied legislative intent that such knives do not fall within the definition of proscribed dirks or daggers but are a type of pocketknife. (Id. at p. 656.) The several intervening manipulations required to open a knife are what place it in the exception of the statute. (Ibid.) In Luke W., the defendant was carrying a device that housed a nonfolding knife. (Id. at p. 655.) When manipulated correctly, the device would eject the knife, but the manipulation required both hands. (Id. at p. 656.) Even though the blade of the knife could not retract into the handle, the court determined that this knife fell into the exception for pocketknives because it required several intervening manipulations and was held in a closed and secured state by the defendant. (Id. at pp. 652, 656.)

Here, unlike in Luke W. or George W., the evidence could reasonably suggest that defendant was carrying a dirk or dagger because a reasonable jury could conclude that the blade was both exposed and locked into position. While the blade was in a closed position, it still extended beyond the end of the knife handle by over two inches. Defendant always carried this knife in a sheath to prevent it from injuring him since the blade did not fold completely into the handle. The closed position of the knife left about as much blade exposed as the open position of many other pocketknives. (See People v. McClure (1979) 98 Cal.App.3d Supp. 31, 33 [holding that a belt buckle knife that is two and one-half to three inches long when open is a dirk or dagger . . . and when worn as intended it presents a threat to public order].) Moreover, the statute does not require that the entire blade needs to be exposed, but instead requires that the knife is capable of ready use as a stabbing weapon because the blade of the knife is exposed and locked into position. ( 12020, subd. (c)(24).) Here, the two inches of the knife blade that were exposed rendered the knife capable of ready use as a stabbing weapon regardless of the fact that the remainder of the blade was not exposed.

A reasonable jury could also find that the blade of this knife was locked into position given that Officer Morehouse could not unfold the blade into an open position. Officer Morehouse also testified in his expert opinion that the knife had been specifically modified for use as a stabbing instrument since the blade length did not match the handle.

Based on the substantial evidence we have just recounted, a reasonable jury could find that the blade of defendants knife was exposed and locked into position and therefore the knife qualified as a dirk or dagger. Accordingly, there was substantial evidence to support defendants conviction.

II

Defendants Aggregate Sentence Of 25 Years

To Life Is Not Cruel And Unusual Punishment

Under Either The Federal Or State Constitutions

Defendant contends, as he did at sentencing, that the sentence of two concurrent terms of 25 years to life in state prison is cruel and unusual punishment under both the United States and California Constitutions. We reject both of these claims.

A

Federal Constitution

The Eighth Amendment to the United States Constitution prohibits cruel and unusual punishment, but strict proportionality between crime and punishment is not required. Rather, [the Eighth Amendment] forbids only extreme sentences that are grossly disproportionate to the crime. (People v. Cartwright (1995) 39 Cal.App.4th 1123, 1135, quoting Harmelin v. Michigan (1991) 501 U.S. 957, 1001 [115 L.Ed.2d 836, 869].)

The Supreme Court of the United States has repeatedly upheld statutory schemes that result in life imprisonment for recidivists upon a third conviction for a nonviolent felony, considering the punishment of recidivism a legitimate penological goal. [T]he States interest is not merely punishing the offense of conviction . . . . [I]t is in addition the interest . . . in dealing in a harsher manner with those who by repeated criminal acts have shown that they are simply incapable of conforming to the norms of society. (Ewing v. California (2003) 538 U.S. 11, 29 [155 L.Ed.2d 108, 122], citing Rummel v. Estelle (1980) 445 U.S. 263, 276 [63 L.Ed.2d 382, 392].) In Ewing, the defendant received a 25-years-to-life sentence for stealing three golf clubs valued at $399 each. (Ewing, at pp. 11, 20 [155 L.Ed.2d at pp. 108, 116].) The sentence was enhanced because the defendant had prior burglary convictions and an armed robbery conviction. (Id. at pp. 18-20 [155 L.Ed.2d at pp. 115-117].)

Here, defendant has a long history of criminal activity, starting in 1989 when he was 21 with two first degree burglary convictions. In 1992, he was convicted again of first degree burglary. At the same time, he was also sentenced for possession of a controlled substance for sale. In 1994, he was convicted of being a felon in possession of a firearm and was placed on probation. He was then convicted of possession of less than one ounce of marijuana while driving in 2002, and in 2004 he was convicted of unlawful possession of a hypodermic needle or syringe. While on probation for this last offense, defendant committed the immediate offenses.

This record shows that defendant is a repeat offender and his recidivist nature along with his current convictions are sufficient to withstand defendants challenge to his sentence under federal law. (Ewing v. California, supra, 538 U.S. at p. 29 [155 L.Ed.2d at p. 122].)

B

California Constitution

[I]n California a punishment may violate article I, section 6, of the Constitution if, although not cruel or unusual in its method, it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity. (In re Lynch (1972) 8 Cal.3d 410, 424.) We consider three elements in assessing disproportionality: (1) an examination of the nature of the offense and the offender; (2) a comparison of the sentence with punishments for more serious offenses in the same jurisdiction; and (3) a comparison of the sentence with punishments for the same offense in other jurisdictions. (Id. at pp. 425-427.)

Addressing the first element of this analysis, [i]n examining the nature of the offense and the offender, we must consider not only the offense as defined by the Legislature but also the facts of the crime in question (including its motive, its manner of commission, the extent of the defendants involvement, and the consequences of his acts); we must also consider the defendants individual culpability in light of his age, prior criminality, personal characteristics, and state of mind. (People v. Crooks (1997) 55 Cal.App.4th 797, 806.)

Defendants current convictions are for carrying a concealed dirk or dagger along with the transportation of a controlled substance. As we have already recounted, defendant has previous convictions for first degree burglary, a serious offense, and for other offenses, all beginning when he was 21 years old. Under the three strikes law, defendants are punished not just for their current offense but for their recidivism. Recidivism in the commission of multiple felonies poses a danger to society justifying the imposition of longer sentences for subsequent offenses. (People v. Cooper (1996) 43 Cal.App.4th 815, 823-824, citing Rummel v. Estelle, supra, 445 U.S. at p. 284 [63 L.Ed.2d at p. 397].) We find nothing that would compel the conclusion that defendants sentence is so grossly disproportionate to the crimes he has committed as to shock the conscience and offend notions of human dignity. (See In re Lynch, supra, 8 Cal.3d at p. 424.)

The second element in the Lynch analysis requires that the court compare the challenged penalty with punishments for more serious offenses committed in the same jurisdiction. (In re Lynch, supra, 8 Cal.3d at p. 426.) Defendant argues that he received a sentence that was greater than that imposed for serious crimes such as sex crimes and violent offenses. While this statement is true, it is [defendants] recidivism in combination with his current crimes that places him under the three strikes law. (People v. Ayon (1996) 46 Cal.App.4th 385, 400, disapproved on another ground in People v. Deloza (1998) 18 Cal.4th 585, 600, fn. 10.) Since defendants sentence is no more severe than that of many other defendants in California with a similar criminal history who are convicted of yet another felony, then it is not cruel and unusual under the California Constitution. (See People v. Meeks (2004) 123 Cal.App.4th 695, 710.)

Concerning the third element of the analysis, we must compare the punishment imposed with the punishment imposed for the same offense in other jurisdictions. (In re Lynch, supra, 8 Cal.3d at p. 427.) While Californias sentencing scheme is one of the most severe recidivist schemes in the nation, this fact does not render it unconstitutional. This state constitutional consideration does not require California to march in lockstep with other states in fashioning a penal code . . . [o]therwise, California could never take the toughest stance against repeat offenders or any other type of criminal conduct. (People v. Martinez (1999) 71 Cal.App.4th 1502, 1516.)

For the reasons stated above, we conclude that defendants sentence does not violate the proscription against cruel and unusual punishment set forth in the California Constitution, article I, section 17.

DISPOSITION

The judgment is affirmed.

ROBIE , J.

We concur:

NICHOLSON , Acting P.J.

BUTZ , J.

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.