Rubalcava

In this case we consider whether the unlawful carrying of a concealed dirk or dagger is a specific intent crime that imposes a sua sponte duty on trial courts to instruct with CALJIC No. 12.42. We conclude the offense does not have a specific intent requirement. Thus, courts have no duty to instruct the jury with CALJIC No. 12.42.

Factual and Procedural Background

On or about July 29, 1997, Officer Roland Elkins arrested defendant Ernesto Amoldo Rubalcava on an outstanding warrant. During the arrest, Officer Elkins discovered a knife on Rubalcava’s person. The knife had a blade roughly three inches long and a handle approximately three and one-eighth inches long. The tip of the blade was chipped. One side of the blade was “totally blunt,” and the other side was dull. The blade, however, showed signs of having been sharpened at one time.

Based on his possession of the knife, Rubalcava was charged by information with one count of “willfully and unlawfully carrying concealed upon his/her person a dirk and dagger” in violation of section 12020, subdivision (a) of the Penal Code. 1 The information further alleged that Rubalcava committed the offense (1) while he was out on…

I concur in the result.

A crime generally comprises elements of mental state and also conduct or consequences or both.

In Penal Code section 12020 (section 12020) declares it a crime, as either a felony or a misdemeanor, for “[a]ny person” to “[c]arr[y] concealed upon his or her person any dirk or dagger.” (Id., subd. (a)(4).) It defines a “dirk” or “dagger” to mean any “instrument,” including a “knife,” “that is capable of ready use as a stabbing weapon that may inflict great bodily injury or death.” (Id., subd. (c)(24).)

I agree with the majority in their resolution of the issue that is crucial to review: Section 12020 does not comprise among its elements any mental state entailing intent to use the instrument in question as a stabbing weapon. Its language excludes such an element. Its legislative history confirms the fact.

Were I to proceed further and attempt to determine what mental state, if any, section 12020 comprises among its elements, I would commence by turning my attention to first principles.

“In every crime,” since the very establishment of our polity, there has had to “exist” a “union” or “joint operation” of “act” and “intent” or “criminal *335 negligence.”…

The majority acknowledges that the current statutory prohibition on carrying a concealed “dirk or dagger” (Pen. Code, § 12020, subds. (a), (c)(24)) may be “overbroad as a matter of common sense . . • ra ■ • . due to the wide range of otherwise innocent conduct it proscribes” (maj. opn., ante, at p. 333), but holds the defect is not a constitutional one and the remedy, if any, must therefore be legislative. I agree; I write separately only with the hope of pointing the way toward a possible solution.

In 1993, responding to judicial pleas for a clear definition of the terms, the Legislature set out to define “dirk or dagger” as used in Penal Code section *337 12020. (Assem. Com. on Public Safety, analysis of Assem. Bill No. 1266 (1993-1994 Reg. Sess.) as amended Mar. 16, 1993, p. 2; see People v. Wharton (1992) 5 Cal.App.4th 72, 77, fn. 3 [ 6 Cal.Rptr.2d 673 ]; People v. Pettway (1991) 233 Cal.App.3d 1067, 1070, fn. 1 [ 285 Cal.Rptr. 147 ].) The resulting definition (“a knife or other instrument with or without a hand-guard that is primarily designed, constructed, or altered to be a stabbing instrument designed to inflict great bodily injury or death” [Stats. 1993, ch. 357, § 1, p.…

In this case we consider whether the unlawful carrying of a concealed dirk or dagger is a specific intent crime that imposes a sua sponte duty on trial courts to instruct with CALJIC No. 12.42. We conclude the offense does not have a specific intent requirement. Thus, courts have no duty to instruct the jury with CALJIC No. 12.42.

On or about July 29, 1997, Officer Roland Elkins arrested defendant Ernesto Arnoldo Rubalcava on an outstanding warrant. During the arrest, Officer Elkins discovered a knife on Rubalcava's person. The knife had a blade roughly three inches long and a handle approximately three and one-eighth inches long. The tip of the blade was chipped. One side of the blade was "totally blunt," and the other side was dull. The blade, however, showed signs of having been sharpened at one time.

Based on his possession of the knife, Rubalcava was charged by information with one count of "willfully and unlawfully carrying concealed upon his/her person a dirk and dagger" in violation of section 12020, subdivision (a) of the Penal Code. [1] The information further alleged that Rubalcava committed the offense (1) while he was out on bail on another felony offense…