Assisted Opening Knives

[1JimMarch]

That site hasn't been updated in years. The email address is no longer valid. The laws regarding folding blades has turned upside down since. Ignore the site and any advise on it.

Well I can assure you, the author can be contacted.

But that aside, I wasn't aware of this case, I've been in AZ since '06. So I'll have to take a closer look at the full ruling just for starters.

I also want to get ahold of the motions, maybe talk to the defending attorneys. My suspicion is that they didn't raise the proper issues including both Karnette's letter and a plain reading of PC653k's "safe harbor" provisions.

[1JimMarch]

However, the knife had been either intentionally modified or accidentally damaged so that the resistance mechanism did not function, which means this knife opens with a flick of the wrist. Nonetheless, the expert opined that this knife still did not meet the legal definition of a switchblade because it had been manufactured with a resistance mechanism, although the juvenile court concluded otherwise because of its present ability to open and lock with a mere flick of the wrist. [163 Cal.App.4th 909]

DISCUSSIONA. Ineffective Assistance

Angel's first trial counsel filed a motion to suppress the responses--both verbal and nonverbal--Angel gave to Salcido's inquiry regarding contraband because it was posed before any Miranda warning. However, subsequent counsel failed to pursue the motion by permitting the court to order it off calendar. Angel now claims this constituted ineffective representation because all evidence of the graffiti possession was found in response to Salcido's un-Mirandized warning.

[1] Angel bears the two-pronged burden of showing that his counsel's representation fell below prevailing professional norms and that he was prejudiced by that deficiency. (See Strickland v. Washington (1984) 466 U.S. 668, 694.) However, a presumption in support of counsel's performance exists, forcing us to conclude that counsel's choice of actions was simply "'sound trial strategy' . . . 'unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.'" (People v. Ledesma (2006) 39 Cal.4th 641, 746; People v. Lucas (1995) 12 Cal.4th 415, 436-437.)

Angel replies that there could be no satisfactory explanation for failing to bring a suppression motion when his statement and gesture were "involuntary and obtained in violation of Miranda[.]" Without that statement and gesture, the graffiti stickers would never have been discovered, he argues, as they were the direct "fruit" of the inadmissible reply. (Wong Sun v. United States (1963) 371 U.S. 471, 491.) He concludes that counsel's failure to pursue the suppression resulted in the withdrawal of a potentially meritorious defense and mandates a reversal of the judgment.

[2] We need not address the merit of the suppression motion because the discovery of the stickers was inevitable in this situation: Angel would have been searched at booking as incident to his arrest (see e.g., People v. Ross (May 12, 2008, No. B201673) __ Cal.App.4th __ [2008 WL 2009868]), and the stickers would have been discovered at that point. Inevitable discovery fn. 3 of evidence is a legitimate basis for denial of a suppression motion, even one focusing on the [163 Cal.App.4th 910] involuntariness of an admission or one obtained in violation of Miranda. (E.g., Green v. Superior Court, supra, 40 Cal.3d at p. 136.)

(CONT.)

[1JimMarch]

C. Sufficiency of Evidence for Graffiti Tools

Angel objects to the court's finding the stickers in his shoe and the felt marker from his pocket to comprise graffiti tools proscribed by section 594.2, subdivision (a). We partially disagree.

When Salcido first searched Angel's pockets and found the marijuana, the felt marker and the knife, Angel told him that he carried the knife for protection, the stickers for "tagging" as part of a tagging crew, fn. 6 and the [163 Cal.App.4th 913] marker for tagging purposes. Angel replies that his statements are irrelevant if the items are not either listed in the statute or fall within the description of graffiti tools.

As we previously stated, we review a verdict for evidence sufficiency under the substantial evidence standard: "[A]n appellate court 'must determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." [Citation.] "The court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence . . . such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." [Citation.] We "'presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.'" [Citation.]' [Citation.]" (In re Manuel G. (1997) 16 Cal.4th 805, 822.)

1. The Felt Marker

[7] Section 594.2, subdivision (a), prohibits the possession of "an aerosol paint container, a felt tip marker, or any other marking substance with the intent to commit vandalism or graffiti[.]" (Italics added.) In subdivision (c)(1), a felt tip marker is further defined as "any broad-tipped marker pen with a tip exceeding three-eights of one inch in width, or any similar implement containing an ink that is not water soluble." In subdivision (c)(2), a marking substance is further defined as "any substance or implement, other than aerosol paint containers and felt tip markers, that could be used to draw, spray, paint, etch or mark." Angel contends no evidence in the record supports the finding that the orange fluorescent marker met subdivision (c)(1)'s requirements and the stickers met the definition of a marking substance. As to his first contention, he is correct. Moreover, neither evidence nor argument was ever proffered that the orange fluorescent marker was evidence of Angel violating section 594.2. However, no finding was ever made that the marker was the basis of the section 594.2 charge: The petition merely reiterated the language of the statute without delineating the objects, and the prosecutor only argued the stickers were the basis for the graffiti tool charge. The juvenile court did command the officer to leave the marker with the court, but it was never marked for identification, examined by anyone, nor admitted into evidence. Thus, the attack on the marker as a violation of section 594.2, subdivision (a) appears unnecessary because it was never the basis of the verdict. [163 Cal.App.4th 914]

(CONT.)

[1JimMarch]

2. The Stickers

[8] "It is axiomatic the prosecution bears the burden of proving each element of a criminal offense charged beyond a reasonable doubt. [Citations.]" (In re Khamphouy S. (1993) 12 Cal.App.4th 1130, 1134.) Angel contends the prosecution failed to show that these stickers--some of which were merely adhesive letters while others were labels with letters already marked on them--were "marking substance[s]" falling within the proscription of the statute. A marking substance is defined in section 594.2, subdivision (c)(2) as "any substance or implement, other than aerosol pain containers and felt tip markers, that could be used to draw, spray, paint, etch or mark." (Italics added.)

Angel argues that the stickers are not implements because the dictionary defines an implement as "an article (as of apparel or furniture) serving to equip . . . [or] a tool or utensil forming part of equipment for work . . ." (Webster's 3d New Internat. Dict.(1981) p. 1134.) However, the same source includes in its definition that the word, implement, "applies to anything, usually a contrivance, necessary to effect an end or perform a task." (Ibid.) Moreover, Black's Law Dictionary (4th ed. 1951) at page 888 includes within its definition of "implements" the term ". . . [w]hatever may supply wants; particularly applied to tools, utensils, vessels, . . . ." (Italics added.)

Angel maintains that an implement can only be something which retains its own existence after its use to accomplish some other task, such as a chisel, axe or pencil. He emphasizes that the sticker becomes the task itself and has no separate existence. Thus, it cannot be an implement.

We disagree. If an implement can only be something used to do something else and yet retain a separate existence, then a billboard would not be an implement of advertising. The billboard becomes the thing it was used to accomplish: advertising.

[9] Five stickers--those marked as Exhibit 2--were blue and separately marked with "black-colored graffiti style tagging" and four stickers--those marked as Exhibit 3--were adhesive-backed letters: B, W and K, the exact letters constituting the monogram of Angel's tagging crew, Buzzing With Korona. These items could be used quickly to mark the surfaces without the time expenditure that either painting or writing would require. These items could be used to "effect [the] end" of marking public surfaces or "perform the task" of publicly announcing the tagging crew's identity. (Webster's 3d New Internat. Dict., supra, at p. 1134.) They "supply [the] want" of quickly marking a surface with specific tagging signs, designs or letters. (Black's Law Dict. (4th ed. 1951), p. 888.) Thus, they fall within the definition of an implement as proscribed by statute. [163 Cal.App.4th 915]

The order of the juvenile court is affirmed.

O'Leary, J., and Moore, J., concurred.

*FN 1. See Miranda v. Arizona (1966) 384 U.S. 436.

*FN 2. See Penal Code sections 4573.8, 4573.9 and 4574.

*FN 3. The "doctrine of 'inevitable discovery[]' . . . [pivots on the fact that] 'there is no nexus to the illegality sufficient to provide a taint.' [Citation.]" (Green v. Superior Court (1985) 40 Cal.3d 126, 136-137, citing Nix v. Williams (1984) 467 U.S. 431, 390.) "[T]he doctrine 'is in reality an extrapolation from the independent source doctrine: Since the tainted evidence would be admissible if in fact discovered through an independent source, it should be admissible if it inevitably would have been discovered.'" (People v.Robles (2000) 23 Cal.4th 789, 800.)

*FN 4. All further statutory references are to the Penal Code.

*FN 5. At the initial encounter between Angel and Salcido, Angel said he knew the handle was broken.

*FN 6. Tagging is the term for marking walls and surfaces with graffiti. A tagging crew is a group of taggers formed for the specific purpose of marking surfaces with identifying letters, names or logos. Angel's tagging crew was called "Buzzing with Korona" and the stickers found in Angel's shoe had the black letters, B, W and K.
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Jim again. The court didn't throw out the safe harbors ("detent or bias towards closure"), but rather found that this particular knife had broken "safe harbor features".

If you have a knife with a safe harbor feature in working order, you have nothing to fear from Angel.

[inbox485]

Well I can assure you, the author can be contacted.

But that aside, I wasn't aware of this case, I've been in AZ since '06. So I'll have to take a closer look at the full ruling just for starters.

I also want to get ahold of the motions, maybe talk to the defending attorneys. My suspicion is that they didn't raise the proper issues including both Karnette's letter and a plain reading of PC653k's "safe harbor" provisions.

I'm assuming then that you are the same Jim March. I hope you didn't take offense as none was intended. Gun owners are being targeted by any means possible by certain law enforcement agencies, and I'd hate to see a fellow gun owner in jail because they relied on old information. It is convenient that the state that would spend millions on ads to promote public awareness of the cell phone driving laws wouldn't take two seconds to make the public aware that 99.9% of one-handed pocket knives just became illegal. This case has been made very clear to law enforcement, and can be expected to be used primarily against the state's main political enemies (gangs, gun owners, and conservatives).

The case was an interesting (albeit infuriating) read. Karnette's letter was raised and ruled irrelevant citing of all things the plain reading of PC653k. The judge essentially ruled that the sky is purple because it can be even though for all intents and purposes it is blue.

If you think you can get this appealed, there are a whole lot of knife owners that would be very grateful. Otherwise the best hope for one handed folding blades in CA is changing the law to make the thumb stud and detent an explicit exception to PC635k rather than an additional requirement as it now stands. Since so many people now carry "switchblades" it is kinda like driving 5 MPH over the limit (it will only get you nailed if you do something to draw attention to yourself). Only it is a misdemeanor not a traffic infraction. I for one won't be caught dead with one around anything firearms related, or at anything "anti-government". I tightened one down, and as soon as I get around to getting a two handed folder, it too will get shelved until future notice.

Call me crazy, but I don't think I would fit in with the other inmates.

[1JimMarch]

Yeah, I'm the same guy.

Do you know for sure yet if Karnette's letter was considered in this case? (Not meant as a challenge, I'm asking.)

I'm going to try and talk to the defense attorney but at first glance, just looking at this ruling, I'm not as wound up about it as you are. The ruling clearly says that the knife was modified or broken and that therefore the safe harbor provisions didn't apply. That's not the case with any knife *I* own, for damnsure.

[inbox485]

Jim again. The court didn't throw out the safe harbors ("detent or bias towards closure"), but rather found that this particular knife had broken "safe harbor features".

If you have a knife with a safe harbor feature in working order, you have nothing to fear from Angel.

Had the judge stopped at the part about being broken therefore disabling the safe harbor, I would agree with you. The judge however continued to create a litmus test.

The lower court specifically found, as the trier of fact, that the knife opened if held "upside down with the blade facing the floor and you just drop your hand[.]" The court noted that it was "not pressing anything . . . The mechanism has been modified or worn out where the handle of the knife that covered that portion of the detent or the item that gave resistance to the blade from being opened is just not functioning. And so it does open up with just a flick of the wrist, and it does go into a locking position when the blade is opened." (Italics added.)

Then the judge went even furthur in rejecting the relevance of the legislative intent letter.

Angel maintains that, based on comments provided by the author of the amendment to the statute, even if the blade can be opened easily with but one hand, it does not constitute a switchblade as long as some resistance is provided by the detent mechanism, no matter how slight. However, the language of the statute is not ambiguous or subject to multiple interpretations. Therefore, an examination of the legislative history is unnecessary. (Allen v. Sully-Miller Contracting Co., supra, 28 Cal.4th at 227.)

Then the judge reinforces the litmus test.

Moreover, for the amendment exemption to apply, the knife must be one that "opens with one hand utilizing thumb pressure applied solely to the blade of the knife or a thumb stud attached to the blade" and has the detent or resistance mechanism. The knife in question was not of that type: It opened by merely a flick of the wrist, not with pressure on the blade or thumb stud. Thus, the author's statements are irrelevant in attacking the court's finding under this statute.

I find nothing in this case to suggest that it is limited to knives with altered detent. If a folder can be flicked open, it is a switchblade.

[inbox485]

Yeah, I'm the same guy.

Do you know for sure yet if Karnette's letter was considered in this case? (Not meant as a challenge, I'm asking.)

I'm going to try and talk to the defense attorney but at first glance, just looking at this ruling, I'm not as wound up about it as you are. The ruling clearly says that the knife was modified or broken and that therefore the safe harbor provisions didn't apply. That's not the case with any knife *I* own, for damnsure.

Our posts overlapped, but to clarify, yes the Karnette memo was considered and ruled on. Read my other post. If I did miss something, let me know. I'd love nothing more than to be proved wrong on this, and shrug it off as nothing more than a bad dream.

[1JimMarch]

Yeah, I see it.

I've got research to do. I still think the ruling hinges on the fact that the knife had a broken or modified "safe harbor feature". Without that part of the ruling, I strongly suspect the Karnette letter comes into play.

I'll be back, OK?

[diginit]

Any folding knife that can be opened with a flick of the wrist is considered a switchblade. But I can do this with my buck hunter and many others with a strong detent. Kind of a senseless law in my opinion. Is the law about folding blades that lock in the open position still on the books? And are switchblades under 2" in blade length still legal?
Been a while.

[cmth]

My Spyderco Endura cannot be flicked open with simple inertial force. I've tried as hard as I can and it cannot be done. The lockback spring has a strong bias towards closure, and the blade is more heavily weighted toward the pivot than the tip, so there is not enough mass in right place to carry it open. The thumbhole must be actuated during the flicking motion for the blade to open. In fact the spring is so strong that the blade must almost be at a right angle with the handle for the flicking motion to be successful. It's not a switchblade nor is it a gravity knife.

[inbox485]

Any folding knife that can be opened with a flick of the wrist is considered a switchblade. But I can do this with my buck hunter and many others with a strong detent. Kind of a senseless law in my opinion. Is the law about folding blades that lock in the open position still on the books? And are switchblades under 2" in blade length still legal?
Been a while.

You realize that you're debating senselessness in regard to judicial law in CA right? Switchblades under 2" are still okay.

[inbox485]

My Spyderco Endura cannot be flicked open with simple inertial force. I've tried as hard as I can and it cannot be done. The lockback spring has a strong bias towards closure, and the blade is more heavily weighted toward the pivot than the tip, so there is not enough mass in right place to carry it open. The thumbhole must be actuated during the flicking motion for the blade to open. In fact the spring is so strong that the blade must almost be at a right angle with the handle for the flicking motion to be successful. It's not a switchblade nor is it a gravity knife.

Some folders with tension on the spine and minimal mass in the latter 2/3 of the blade are gravity resistant enough. These are the 1% I mentioned earlier. I believe Victonox makes a one handed knife that is also good to go for the same reason.

[Dragunov]

I'm glad I don't have that worry. I open carry a fixed blade (Buck Nighthawk) in my vehicle, on my job and when I go camping/hiking.

[diginit]

You realize that you're debating senselessness in regard to judicial law in CA right? Switchblades under 2" are still okay.

I wasn't debating anything. I was answering one and asking two questions. Did you read the previous posts?
Thanks for answering the 2" question though. Laws change and I'm getting older.
I once had an officer test my blade for the gravity effect, I'm glad he didn't try to flick it....I'd would have been taken downtown.