BILL ANALYSIS
SENATE COMMITTEE ON CRIMINAL PROCEDURE
Senator Milton Marks, Chair A
1995-96 Regular Session B
1
2
AB 1222 (Martinez) 2
As amended May 31, 1995 2
Hearing date: June 6, 1995
Penal Code
SAH:js
DIRKS AND DAGGERS
HISTORY
Source: California District Attorneys Association
Prior Legislation: AB 1266 - Chapter 357, Statutes of 1993
SB 292 - Chapter 598, Statutes
of 1993
AB 1919 - Chapter 36, Statutes
of 1953
Support: None known
Opposition: California Attorneys for Criminal Justice
Assembly Floor Vote: Ayes 75 - Noes 0
KEY ISSUE
SHOULD THE DEFINITION OF oDIRKo OR oDAGGERo BE REWRITTEN IN THE PENAL CODE?
PURPOSE
Existing law provides that any person who carries concealed
upon his or her person any dirk or dagger is punishable by
imprisonment in a county jail not exceeding one year or in
the state prison (16 months, 2, or 3 years). (Penal Code
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Section 12020 [a])
Existing law provides that any person, unless otherwise
exempted, who brings or possesses prohibited weapons,
including a dirk or a dagger, on the grounds of any public or
private school - K-12, community college, or university - is
guilty of a public offense punishable by imprisonment in a
county jail not exceeding one year or in the state prison (16
months, 2, or 3 years). (Penal Code Section 626.10 [a] and
[b])
Both of those existing sections define a odirko or odaggero
as oa knife or other instrument with or without a handguard
that is primarily designed, constructed, or altered to be a
stabbing instrument designed to inflict great bodily injury
or death.o
Existing Penal Code Section 12020 (d) provides that knives
carried in sheaths which are worn openly suspended from the
waist of the wearer are not concealed within the meaning of
the Section.
This bill would change that definition of odirko or odaggero
to mean oa knife or other instrument with or without a
handguard that is capable of ready use as a stabbing weapon
that may inflict great bodily injury or death.o
The purpose of this bill is to change the existing Penal Code
definition of odirko or odaggero to delete the specific
odesigno requirement of the current definition.
COMMENTS
1. Need for This Bill.
Until AB 1266 was enacted in 1993, the Penal Code did not
specifically define odirko or odaggero; case law provided the
definition of the kinds of ostabbingo instruments which were
to be proscribed when carried concealed.
Since the new definition, effective 1/1/94, the sponsors of
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this bill indicate that:
oJudges, defense attorneys and jurors are
interpreting the new definition to prohibit the
concealed carrying only of knives primarily
intended by the manufacturer to be used to stab
people; since we can never show that the primary
purpose of a butcher knife, hunting knife, survival
knife, ice pick, etc., is to cause death or great
bodily injury by stabbing, we cannot obtain
convictions under this statute; if we cannot
prosecute, of course, police cannot arrest.
oThe net effect of the confusion is that gang
members and other who carry lethal knives hidden in
their clothing are essentially immune from arrest
and prosecution. Knives are second only to
firearms as offensive weapons used in violent
crimes, and although it was unintended, the
language of the 1993 legislation is making it more
difficult for police to remove such weapons from
those who carry them concealed in public and more
difficult to obtain convictions.
oPrevious decisional law recognized that many
devices that might have lawful uses could become a
threat to public safety when carried concealed on
the person; see People v. Ferguson (1970) 7 CA3d 13
(butcher knife); In re Robert L. (1980) 112 CA3d
401 (ice pick); People v. Villagen (1980) 106 CA3d
720 (hunting knife); In re Quintus W. (1981) 120
CA3d 640 (steak knife). Sensibly the statute does
not prohibit the possession of such devices (as it
does with the other weapons enumerated there, such
as brass knuckles and sawed-off shotguns, which
never have a legitimate use)...there is no lawful
necessity for carrying these otherwise-legal knives
and devices concealed on the person in public, as
the law proscribes...o
2. Why the Definition Was Added in 1993.
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As indicated, until January 1, 1994, there was no statutory
definition of odirko or odaggero. Court cases had provided
definitional guidance. For example, in People v. Pettway,
(1991) 233 Cal. App. 3d 1067, the Court of Appeal cited the
characteristics of dirks and daggers as follows (cites
omitted): oAs is the usual practice in interpreting criminal
statutes, the term odirk or daggero is to be strictly
construed. The test of a dirk or dagger for the purposes of
section 12020 (a) is whether the instrument is designed
primarily for stabbing, and not whether the instrument can be
used for stabbing or is capable of inflicting death.
Depending on its characteristics, an instrument may be a
dagger as a matter of law or it may be a dagger as a matter
of fact for the trier to find. A pounded bedspring with a
pointed tip was held a dirk or dagger as a matter of law
because it was designed, and could only be used, to stab.
However, a knife that had blades that did not lock into place
was not a dagger because it effectiveness as a stabbing
weapon was severely limited by this attribute. A knife is
not, as a matter of law, a dagger if it has characteristics
substantially limiting it stabbing effectiveness.o
Further restrictions on the definition of a dirk or dagger
was provided in People v. Forrest, (1967) 67 C.2d 478, which
after a discussion of relevant cases concludes that: o...the
Legislature has not included folding pocketknives within the
meaning of odirko or odagger.o o Another case is cited
which indicates that courts have only applied the dirks or
daggers section owhere the blades and handles are solid, or
where the blade locks into place.o
In People v. Villigren, (1980) 106 CA3d 720, the court posed
and answered the following question:
oWith respect to appellantos concern about othe
opportunities for harassment of law-abiding
citizens if hunting knives are held illegal under
Section 12020,o the section does not penalize the
lawful possession of a hunting knife but only the
concealed possession thereof as a weapon, because
this creates an immediate atmosphere of danger. In
People v. Grubb (1965) 63 C2d 614, the California
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Supreme Court held that an altered baseball bat,
which was taped at the smaller end while heavier at
the unbroken end, and which was carried by the
defendant in his car, was a obilly,o one of the
weapons proscribed by Penal Code section 12020.
The court recognized that some instruments, useful
for peaceful purposes, may under other
circumstances constitute dangerous weapons. As the
opinion said: oThe concomitant circumstances may
well proclaim the possession of even the
innocent-appearing utensil. The Legislature thus
decrees as criminal the possession of ordinarily
harmless objects when the circumstances of
possession demonstrate an immediate atmosphere of
danger.o o Thus the baseball bat in question was
illegal while othe section would not penalize the
Little Leaguer at bat in a baseball game.o The
Grubb court concludes that the oLegislature here
sought to outlaw the classic instruments of
violence and their homemade equivalents; the
Legislature sought likewise to outlaw possession of
the sometimes-useful object when the attendant
circumstances, including the time, place,
destination of the possessor, the alteration of the
object from standard form, and other relevant facts
indicated that the possessor would use the object
for a dangerous, not harmless, purpose.o
Notwithstanding the developed - and possibly developing -
case law which defined dirks or daggers, the 1993 legislation
was introduced because a legislative stafferos watchful eye
noted that in the Pettway decision, a footnote was present
which said:
oPublic understanding of the law would be aided,
and perhaps some judicial confusion eliminated as
well, were the Legislature to abandon, or at least
define, the arcane term odirk or dagger.o oDirko,
besides being particularly rare in the contemporary
lexicon, is unnecessary, as odagger,o a generic
term, includes it. oDagger,o while still in common
usage, conveys an image more limited than it has
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come to denote as a term of art. There would
appear no reason not to define it in the statute,
as has been done for...other prohibited weapons.o
WOULD ANOTHER RESPONSE TO THE PETTWAY FOOTNOTE HAVE BEEN TO
REMOVE THE TERM oDIRKo FROM THE CODES AND INSTEAD TO HAVE
LEFT oDAGGERo WITHOUT STATUTORY DEFINITION?
3. History of oDirko and oDaggero.
The simple dictionary definition of odirko is oa daggero; a
odaggero is a oshort pointed weapon with sharp edgeso.
The analysis of the 1993 legislation indicates that the bill
laudably attempts a definition of odirko and odaggero, terms
included in the Penal Code revision of 1953 (AB
1919-Caldecott) and undoubtedly in preceding law. While
there is a common assumption as to the nature of the
implements to which these terms refer, case law indicates a
judicial preference for greater statutory specificity. In
People v. Bain (1971), 5 Cal.3d 839, the Supreme Court held
that a odirko or odaggero must be a stabbing instrument
designed to inflict great bodily injury or death; in People
v. Forrest (1967), 67 Cal.2d 478, it opined that a knife in
itself did not constitute a odirko or odaggero. Cases are
divided on the necessity of a handguard as an element of the
implement. In People v. Pettway (1991) 233 Cal.App.3d 1067,
the court urged the Legislature to adopt a statutory
definition to avoid future ambiguity.
What the 1993 legislation proposes essentially combines
definitional elements found in the various cases. The
implement must be designed, constructed, or altered primarily
for stabbing; an unaltered tool or instrument which was not
designed or altered to be a stabbing instrument would not be
included as a matter of law. The presence of a handguard or
lack thereof would be irrelevant.
Historically, the terms have referred to stabbing weapons
rather than cutting weapons; hence, the assumption that a
knife is not a dagger. The origin of the term odirko is
unclear; it first appears in 1602 as odorko, and in late 17th
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century usage as odurko; a definition was included in Samuel
Johnson's dictionary of 1755. It has traditionally referred
to a small stabbing implement worn as part of Highland garb,
or carried by British naval officers as a close combat weapon
in boardings. In the 19th century it gained popularity as an
underworld term. While some have argued for its Gaelic
ancestry, such would not appear to be the case. The Gaelic
term for a stabbing implement is obiodago whence is derived
the term odaggero through the medieval Latin corruption
dagerius. A dagger is generally defined as a short,
stout-edged sword for thrusting or stabbing.
If there is a difference between a dirk and a dagger as used
in criminal law, it would seem to lie in an understanding
that a dagger is a formal stabbing instrument professionally
fabricated with some precision, while a dirk is a homemade
implement crafted solely for nefarious purposes.
4. Opposition to This Bill.
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The California Attorneys for Criminal Justice write in
opposition that:
o...the existing definition of odirko or odaggero
is appropriate, making the carrying of a concealed
instrument designed to inflict great bodily injury
a crime, while the carrying of more innocent
devices is not. The carrying of many types of
items would be criminalized under the proposed,
extremely broad definitions: carrying a regular
steak knife concealed on oneos person, a pair of
scissors, or a sharp metal knitting needle would be
a crime.o
THE SPONSORS SUGGEST THAT THE FACT IS THAT OTHERWISE LEGAL
DIRKS AND DAGGERS MAY BE CARRIED OPENLY AND THAT THERE IS NO
NEED TO CARRY SUCH ITEMS CONCEALED IN PUBLIC. IS THAT
SUFFICIENT PROTECTION FOR oINNOCENTo VIOLATORS? IS THERE
EVER A NEED TO CARRY ITEMS SUCH AS AN ICE PICK OR LARGE KNIFE
CONCEALED IN PUBLIC?
5. Intent Required for Violations.
The unlawful concealed carrying of a dirk or dagger in
Section 12020 is a general intent crime. Evidence Code
Section 665 states that a person is presumed to intend the
ordinary consequences of his voluntary act; Evidence Code
Section 668 states that an unlawful intent is presumed from
the doing of an unlawful act. Both Sections provide that
neither presumption is applicable if a specific intent is
required by the elements of the crime.
No intent for unlawful use would be required for violations
of the prohibition on the concealed possession upon the
person of an otherwise lawful dirk or dagger.
PROPONENTS OF THIS BILL WOULD POSSIBLY SUGGEST THAT EVERYONE
- PEACE OFFICERS, PROSECUTORS, JUDGES, AND JURIES - KNOWS
WHAT IS CONSIDERED oBADo CARRYING OF A CONCEALED DIRK OR
DAGGER, CITE GRUBB (SUPRA), AND ARGUE THAT IS THE PROTECTION
AGAINST POSSIBLY OVERZEALOUS USE OF THE PENAL CODE
PROSCRIPTIONS ON SUCH CONDUCT?
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6. Other Penal Code Section Reference to Dirks and Daggers.
Penal Code Section 4502 makes it a felony for any person
confined in a penal institution to possess specified weapons,
including oany dirk or dagger or sharp instrumento. While
those terms are not further defined, there is no apparent
need to include any definitions when the lawful possession of
such items is generally not in question. However, it may be
assumed that if a court was confronted with the issue of what
is a dirk or dagger, it would not only refer to case law but
look to the statutory definition which this bill proposes to
change.
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