P. v. Phillips

Filed 8/30/06 P. v. Phillips CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Richard W. Stanford, Jr., Judge. Affirmed.

Daphne Sykes Scott, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Scott C. Taylor and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.

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Introduction

Defendant John Paul Phillips, Jr., appeals from a judgment of conviction for possessing a concealed knife. We conclude the trial court did not abuse its discretion by admitting in evidence a spear defendant was also carrying, because it was relevant to counter the claim made during defendant's opening statement that both the spear and the concealed knife were gardening tools, not weapons. Even if the trial court's determination was error, it was harmless error. We also conclude the trial court did not abuse its discretion by denying defendant probation. Defendant did not object in the trial court to the sentence, and therefore has waived the issue for appeal. Even if we considered the merits of defendant's appeal, we would find no error. Therefore, we affirm.

Statement of Facts and Procedural History

About 11:40 p.m. on May 6, 2005, Orange County Deputy Sheriff Sean Howell observed defendant carrying a long stick while walking across the front yards of houses on Crestwood Lane in Anaheim. As defendant walked toward a house, Deputy Howell made a U-turn in his patrol car, and saw defendant drop the stick in a planter or on the ground near a planter and stand by the front door of the house.

Deputy Howell shined a spotlight on defendant, exited the patrol car, and approached defendant. Defendant told Deputy Howell this was his friend's house and he was talking to a friend, although the lights of the house were off and no one was at the door. Defendant started to approach Deputy Howell, leading with his left side as if he were hiding something in his right hand. Deputy Howell saw a piece of wood, one to two inches in length, sticking out of defendant's right rear pants pocket. Deputy Howell also could see defendant was wearing a handcrafted sheath or knife holder attached to either his pants or his belt. Deputy Howell asked defendant what he had in his hands. Defendant pulled an object out of his rear pants pocket and stated it was a knife. At Deputy Howell's request, defendant threw the knife to the ground. The knife had a four‑inch metal blade and a wooden handle.

Deputy Howell later retrieved the long stick. The stick was about four and a half feet long, with a seven‑inch blade at the end. The blade was covered with a bandana.

Defendant was charged with possession of a deadly weapon, a shobi-zue spear (Pen. Code, § 12020, subd. (a)(1) [count 1]);[1] carrying a concealed dirk or dagger (id., § 12020, subd. (a)(4) [count 2]); and possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a) [count 3]). The information also alleged defendant had suffered two prison priors. (Pen. Code, § 667.5, subd. (b).)

Defendant moved to dismiss count 1 pursuant to Penal Code section 995; the prosecution conceded the merit of defendant's argument and the trial court granted the motion. The court granted defendant's motion to bifurcate trial of the prior convictions. The court also granted the prosecution's motions to renumber count 2 as count 1, and to dismiss count 3, leaving for trial only the charge of carrying a concealed dirk or dagger.

While the jury was deliberating, defendant admitted the two prior convictions. The jury found defendant guilty of carrying a concealed dirk or dagger.

Defendant waived his right to a probation report and was immediately sentenced by the trial court to a total of three years: the middle term of two years on count 1, and one additional year for one of the prison priors. The court struck the other prison prior for sentencing purposes only.

Discussion

I.

Did the trial court abuse its discretion by admitting the spear into evidence?

Defendant argues the trial court erred by admitting the spear into evidence, because the charge of carrying an illegal spear had been dismissed from the case. A trial court's determination of the relevancy of evidence and its ruling on the admissibility of evidence are reviewed for an abuse of discretion. (People v. Heard (2003) 31 Cal.4th 946, 972-973.)

The essential elements of a charge of carrying a concealed dirk or dagger are (1) the defendant carried a dirk or dagger; (2) the weapon was substantially concealed upon his or her person; and (3) the defendant knew he or she was carrying such a weapon. (People v. Gonzales (1995) 32 Cal.App.4th 229, 232.) While the prosecution need not prove the defendant intended to use the object as a weapon, it must prove the object is a weapon. (People v. Rubalcava (2000) 23 Cal.4th 322, 327-329.) Where the defendant seeks to justify his or her possession of a potential weapon because its intended use was innocent, â€