California Dirk or Dagger “Morality"
In keeping with my experience that California criminal laws always get more convoluted instead of simpler, the California Second District Court of Appeal quietly slipped a stunning case into the appellate record during the pandemic: People v. Hester (2020) 58 Cal.App.5th 630. This case is primarily a “dirk or dagger” case as it elucidates California Penal Code sections 16470 and 21310, which deal with “concealed carry” of a “dirk or dagger” under California state law. The twist is that the Court of Appeal here added a “morality” component to the possession of a concealed “dirk or dagger”. The opinion also blurs the line between the definition of a fixed blade versus a non-fixed blade “instrument that is capable of ready use as a stabbing weapon.” The kicker is that the court here found that a standard boxcutter qualifies, in some circumstances, as an illegal dirk or dagger. Yep, you read that correctly. Now you have to worry about a hardware store boxcutter being a dagger in California.
Before I get deep into the details of this crazy case, let’s talk a little bit about California legally carried dirks or daggers. The basic rule in California is that fixed blades of about any style and length (including double-edged long swords) are perfectly legal to carry in California if they are NOT concealed. In fact, walking around Witcher-style with a large double-edged sword is likely to be perfectly fine in California. For example, this should be OK:
However, according to People v. Hester, if you have one of these buried in your pocket, you’re potentially in some trouble:
Hester is arguably an anomaly, because it involved a defendant who not only had strike priors under the California 3-strikes law, but also because there was some evidence that he shanked a dude with one of his boxcutters. Hester is also a rare published criminal decision, it is not a California Supreme Court case, and there are other California Court of Appeals districts which are not bound by Hester, so there is some possibility it gets clarified, distinguished or overruled later.
The basic facts of Hester indicate that Mr. Hester was carrying two box cutters, both with a blade of about one inch. That would automatically exclude them from the “switchblade” category in California because Penal Code section 21510 only prohibits “switchblades” with blades that are “two or more inches in length.” Because of this, the Hester court goes out of its way to define a standard boxcutter as a “dirk or dagger”. There are no pictures of the two boxcutters in the Hester opinion. One, which was found in his “right pocket”, is described as “a folding box cutter that locked into place when opened.” No description is given of the kind of lock. It apparently had a “button on the handle” which, when depressed “the blade slid open and locked into a fixed position.” In order to close it, the button had to be depressed again.
The second box cutter, which was found in a backpack he carried, is described as a “’non-folding box cutter’ that had a button to slide the blade open and which locked the blade into place.” Oh, and yes, carrying concealed in a backpack is carrying concealed on your person.
Apparently, Mr. Hester’s attorney(s) did not argue that either knife was non-locking or was a pocketknife. Either of these arguments would have potentially excluded it as a dirk or dagger under California Penal Code section 16470. There is also (an apparently not raised) argument that one or both qualified as what section 16470 describes as “a folding knife that is not prohibited by Section 21510.” It’s not clear whether the defense hired an expert. I would not concede these points if I were defending somebody in this instance. But I also think the Hester court overreached here in defining these boxcutters as dirks or daggers.
Which brings me to the next problem with the Hester opinion. The evidence in the case seems to indicate that when these knives were found they were closed and the blades were not exposed. That’s probably true, because who carries an open boxcutter in their pocket? The court doesn’t explicitly indicate what the finding at trial was on this point (pun possibly intended.) If I had to do a trial on this, I would ask for an explicit jury finding about whether the knife was carried in an open and fixed position while concealed. In this case, Hester waived jury and had a court trial only. Another seriously questionable defense tactic on a felony case. In any event, the chief problem here is that section 16470 expressly indicates that a dirk or dagger is only “capable of ready use as a stabbing weapon” if “the blade of the knife is exposed and locked into position.” It would seem that wasn’t the case here. But the Hester court seems to have conveniently ignored this seemingly important qualification. (I should add that I question whether either of these knives truly qualify as “stabbing” instruments, a point I would not have conceded (pun possibly intended again.) Just because they will cut doesn’t mean they will stab.)
In People v. Castillolopez (2016) 63 Cal.4th 322, the California Supreme Court clearly stated that a folding multi-tool was NOT a dirk or dagger because the blade was not locked into position. Without getting deep into the appellate weeds here, I can say that a review of California cases on this topic, and Castillolopez in particular, suggests that a folding knife with ANY kind of a locking mechanism could potentially qualify as dirk or dagger in California simply by virtue of having a locking mechanism. My contention would be that the knife has to be FOUND in an open and locked state to qualify. The case law is unclear. However, the definition of “switchblade” in Penal Code section 17235 expressly excludes knives (ostensibly folding) that have a detent or “other mechanism that must be overcome in opening the blade, or that biases the blade back toward its closed position.” Obviously, some types of folding knife locks would fit this latter definition.
So the question remains, is ANY folding and locking knife going to be considered a “dirk or dagger” in California simply by virtue of the fact that it has a locking mechanism? That should worry just about anybody in California who carries a pocketknife in, well, a pocket. Buck 110s are illegal in California under this theory if you put them in your pocket.
Which brings me to the final point about Hester. Morality. The concurring opinion (not a dissent, but still a rarity for a Court of Appeal case in CA) went to great lengths to point out that the 2-judge majority opinion could mean that everything from pencils to screwdrivers and from sewing needles to miniature Eiffel Tower replicas qualify as dirks or daggers. It also indicated that there are overwhelmingly legitimate reasons for people to be walking around with boxcutters. Like, maybe they work in a grocery store. To quote, “it should raise eyebrows that an ordinary box cutter is an illegal dirk or dagger.”
Ultimately, despite being a questionable opinion, the Hester court maybe did the average California knife carrier a favor. They levied a “morality” requirement: “this holding that box cutters are dirks or daggers is right only if we read the statute to ensure it cannot condemn morally blameless people.” In other words, you better be able to prove you were carrying it for some reason other than shanking a dude. Top Chef contestants can now breathe a sigh of relief when they are running around Los Angeles with their fixed-blade "capable of ready use as a stabbing weapon" instruments concealed neatly in their cases:
Moral of the story (yes, pun possibly intended again). Why might you be carrying a knife in California and be “morally blameless”? Chef? Painter? Construction? Gardening? Box or letter recipient? Cosplay? Historical recreationist? Bushcraft? Picnic? Actor? Collector? I’m sure some other people could list a host of other reasons. Discussion encouraged. Just make sure if you shank a dude, it’s in defense of your person or another person. I also encourage taking the 5th and asking for a lawyer if arrested.
-rb
In keeping with my experience that California criminal laws always get more convoluted instead of simpler, the California Second District Court of Appeal quietly slipped a stunning case into the appellate record during the pandemic: People v. Hester (2020) 58 Cal.App.5th 630. This case is primarily a “dirk or dagger” case as it elucidates California Penal Code sections 16470 and 21310, which deal with “concealed carry” of a “dirk or dagger” under California state law. The twist is that the Court of Appeal here added a “morality” component to the possession of a concealed “dirk or dagger”. The opinion also blurs the line between the definition of a fixed blade versus a non-fixed blade “instrument that is capable of ready use as a stabbing weapon.” The kicker is that the court here found that a standard boxcutter qualifies, in some circumstances, as an illegal dirk or dagger. Yep, you read that correctly. Now you have to worry about a hardware store boxcutter being a dagger in California.
Before I get deep into the details of this crazy case, let’s talk a little bit about California legally carried dirks or daggers. The basic rule in California is that fixed blades of about any style and length (including double-edged long swords) are perfectly legal to carry in California if they are NOT concealed. In fact, walking around Witcher-style with a large double-edged sword is likely to be perfectly fine in California. For example, this should be OK:
However, according to People v. Hester, if you have one of these buried in your pocket, you’re potentially in some trouble:
Hester is arguably an anomaly, because it involved a defendant who not only had strike priors under the California 3-strikes law, but also because there was some evidence that he shanked a dude with one of his boxcutters. Hester is also a rare published criminal decision, it is not a California Supreme Court case, and there are other California Court of Appeals districts which are not bound by Hester, so there is some possibility it gets clarified, distinguished or overruled later.
The basic facts of Hester indicate that Mr. Hester was carrying two box cutters, both with a blade of about one inch. That would automatically exclude them from the “switchblade” category in California because Penal Code section 21510 only prohibits “switchblades” with blades that are “two or more inches in length.” Because of this, the Hester court goes out of its way to define a standard boxcutter as a “dirk or dagger”. There are no pictures of the two boxcutters in the Hester opinion. One, which was found in his “right pocket”, is described as “a folding box cutter that locked into place when opened.” No description is given of the kind of lock. It apparently had a “button on the handle” which, when depressed “the blade slid open and locked into a fixed position.” In order to close it, the button had to be depressed again.
The second box cutter, which was found in a backpack he carried, is described as a “’non-folding box cutter’ that had a button to slide the blade open and which locked the blade into place.” Oh, and yes, carrying concealed in a backpack is carrying concealed on your person.
Apparently, Mr. Hester’s attorney(s) did not argue that either knife was non-locking or was a pocketknife. Either of these arguments would have potentially excluded it as a dirk or dagger under California Penal Code section 16470. There is also (an apparently not raised) argument that one or both qualified as what section 16470 describes as “a folding knife that is not prohibited by Section 21510.” It’s not clear whether the defense hired an expert. I would not concede these points if I were defending somebody in this instance. But I also think the Hester court overreached here in defining these boxcutters as dirks or daggers.
Which brings me to the next problem with the Hester opinion. The evidence in the case seems to indicate that when these knives were found they were closed and the blades were not exposed. That’s probably true, because who carries an open boxcutter in their pocket? The court doesn’t explicitly indicate what the finding at trial was on this point (pun possibly intended.) If I had to do a trial on this, I would ask for an explicit jury finding about whether the knife was carried in an open and fixed position while concealed. In this case, Hester waived jury and had a court trial only. Another seriously questionable defense tactic on a felony case. In any event, the chief problem here is that section 16470 expressly indicates that a dirk or dagger is only “capable of ready use as a stabbing weapon” if “the blade of the knife is exposed and locked into position.” It would seem that wasn’t the case here. But the Hester court seems to have conveniently ignored this seemingly important qualification. (I should add that I question whether either of these knives truly qualify as “stabbing” instruments, a point I would not have conceded (pun possibly intended again.) Just because they will cut doesn’t mean they will stab.)
In People v. Castillolopez (2016) 63 Cal.4th 322, the California Supreme Court clearly stated that a folding multi-tool was NOT a dirk or dagger because the blade was not locked into position. Without getting deep into the appellate weeds here, I can say that a review of California cases on this topic, and Castillolopez in particular, suggests that a folding knife with ANY kind of a locking mechanism could potentially qualify as dirk or dagger in California simply by virtue of having a locking mechanism. My contention would be that the knife has to be FOUND in an open and locked state to qualify. The case law is unclear. However, the definition of “switchblade” in Penal Code section 17235 expressly excludes knives (ostensibly folding) that have a detent or “other mechanism that must be overcome in opening the blade, or that biases the blade back toward its closed position.” Obviously, some types of folding knife locks would fit this latter definition.
So the question remains, is ANY folding and locking knife going to be considered a “dirk or dagger” in California simply by virtue of the fact that it has a locking mechanism? That should worry just about anybody in California who carries a pocketknife in, well, a pocket. Buck 110s are illegal in California under this theory if you put them in your pocket.
Which brings me to the final point about Hester. Morality. The concurring opinion (not a dissent, but still a rarity for a Court of Appeal case in CA) went to great lengths to point out that the 2-judge majority opinion could mean that everything from pencils to screwdrivers and from sewing needles to miniature Eiffel Tower replicas qualify as dirks or daggers. It also indicated that there are overwhelmingly legitimate reasons for people to be walking around with boxcutters. Like, maybe they work in a grocery store. To quote, “it should raise eyebrows that an ordinary box cutter is an illegal dirk or dagger.”
Ultimately, despite being a questionable opinion, the Hester court maybe did the average California knife carrier a favor. They levied a “morality” requirement: “this holding that box cutters are dirks or daggers is right only if we read the statute to ensure it cannot condemn morally blameless people.” In other words, you better be able to prove you were carrying it for some reason other than shanking a dude. Top Chef contestants can now breathe a sigh of relief when they are running around Los Angeles with their fixed-blade "capable of ready use as a stabbing weapon" instruments concealed neatly in their cases:
Moral of the story (yes, pun possibly intended again). Why might you be carrying a knife in California and be “morally blameless”? Chef? Painter? Construction? Gardening? Box or letter recipient? Cosplay? Historical recreationist? Bushcraft? Picnic? Actor? Collector? I’m sure some other people could list a host of other reasons. Discussion encouraged. Just make sure if you shank a dude, it’s in defense of your person or another person. I also encourage taking the 5th and asking for a lawyer if arrested.
-rb
