C.A. Clarifies Law on Possession of a Switchblade

Wednesday, December 9, 2009

Page 3

C.A. Clarifies Law on Possession of a Switchblade

By KENNETH OFGANG, Staff Writer

Possession of a switchblade knife on one’s person is a crime, even if it did not occur in a “public place or place open to the public,” the First District Court of Appeal ruled yesterday.

Div. One, in an opinion by Justice Sandra Margulies, rejected an appeal by a juvenile placed on probation for violation of Penal Code Sec. 653k.

The relevant portion of the statute reads:

“Every person who possesses in the passenger’s or driver’s area of any motor vehicle in any public place or place open to the public, carries upon his or her person, and every person who sells, offers for sale, exposes for sale, loans, transfers, or gives to any other person a switchblade knife having a blade two or more inches in length is guilty of a misdemeanor.”

The juvenile, identified by the court as S.C., was discovered by Petaluma police on the porch of a house at which they were investigating reports of a possible break-in. A search of his person revealed a folding knife with a three-inch blade in the pocket of his shorts, an officer testified.

Sonoma Superior Court Judge sustained the petition charging S.C. with violation of Sec. 653k and declared him a ward of the court.

Margulies, writing for the Court of Appeal, rejected the contention that the “public place” language in the statute rendered it inapplicable under the facts. That language, she explained, applies only when possession takes place in a motor vehicle and not on the person.

“Under the first paragraph of section 653k, there are three general ways to violate the statute, each stated in a separate clause: (1) to possess the knife in a vehicle (vehicle clause), (2) to carry it upon one’s person (carrying clause), or (3) to transfer or attempt to sell the knife to another person (transfer clause),” the justice wrote. “The carrying clause contains no requirement that the possession occur in a public place. Rather, the language makes it a violation for a person simply to ‘carr[y] upon his or her person’ a switchblade knife. By having the knife in his pocket, thereby carrying it on his person, appellant violated the plain language of this clause.”

The language, Margulies said, cannot be stretched to apply the “public place” limitation beyond the vehicle clause. In addition, the carrying clause was part of the original statute, whereas the vehicle clause was added in 1986 and was found by the legislative counsel to create a new state mandate, clarifying “the Legislature’s understanding that the existing statute applied to carrying on the person in any location and its intent to impose the ‘public place’ limitation solely on possession in a vehicle,” the justice explained.

Since the S.C. violated the statute simply by having the knife on his person, the justice went on to say, it was unnecessary to determine whether the porch was a public place, as the attorney general argued in the alternative.

The case is In re S.C., A123371.