California Criminal Jury Instructions (CALCRIM) (2017)

2501. Carrying Concealed Explosive or Dirk or Dagger

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2501.Carrying Concealed Explosive or Dirk or Dagger (Pen.
Code, §§ 21310, 16470)
The defendant is charged [in Count ] with unlawfully carrying a
concealed (explosive/dirk or dagger) [in violation of Penal Code section
21310].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant carried on (his/her) person (an explosive/a dirk or
dagger);
2. The defendant knew that (he/she) was carrying it;
3. It was substantially concealed on the defendant’s person;
AND
4. The defendant knew that it (was an explosive/could readily be
used as a stabbing weapon).
The People do not have to prove that the defendant used or intended to
use the alleged (explosive/dirk or dagger) as a weapon.
[An explosive is any substance, or combination of substances, (1) whose
main or common purpose is to detonate or rapidly combust and (2) that
is capable of a relatively instantaneous or rapid release of gas and heat.]
[An explosive is also any substance whose main purpose is to be
combined with other substances to create a new substance that can
release gas and heat rapidly or relatively instantaneously.]
[<insert type of explosive from Health & Saf. Code, § 12000>
is an explosive.]
[A dirk or dagger is a 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. Great bodily injury means significant
or substantial physical injury. It is an injury that is greater than minor
or moderate harm.]
[A (pocketknife/nonlocking folding knife/folding knife that is not
prohibited by Penal Code section 21510) is not a dirk or dagger unless
the blade of the knife is exposed and locked into position.]
[A knife carried in a sheath and worn openly suspended from the waist
of the wearer is not concealed.]
<Give only if object may have innocent uses.>
[When deciding whether the defendant knew the object (was an
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explosive/could be used as a stabbing weapon), consider all the
surrounding circumstances, including the time and place of possession.
Consider also (the destination of the defendant[,]/ the alteration of the
object from standard form[,]) and other facts, if any.]
[The People allege that the defendant carried the following weapons:
<insert description of each weapon when multiple items
alleged>. You may not find the defendant guilty unless all of you agree
that the People have proved that the defendant carried at least one of
these weapons and you all agree on which weapon (he/she) carried and
when (he/she) carried it.]
New January 2006; Revised February 2012
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the crime.
If the prosecution alleges under a single count that the defendant possessed
multiple weapons and the possession was “fragmented as to time . . . [or] space,”
the court has a sua sponte duty to instruct on unanimity. (See People v. Wolfe
(2003) 114 Cal.App.4th 177, 184–185 [7 Cal.Rptr.3d 483].) Give the bracketed
paragraph beginning “The People allege that the defendant possessed the following
weapons,” inserting the items alleged.
Give the bracketed paragraph that begins with “When deciding whether” only if the
object was not designed solely for use as a stabbing weapon but may have innocent
uses. (People v. Fannin (2001) 91 Cal.App.4th 1399, 1404 [111 Cal.Rptr.2d 496];
People v. Grubb (1965) 63 Cal.2d 614, 620–621, fn. 9 [47 Cal.Rptr. 772, 408 P.2d
100].)
When instructing on the meaning of “explosive,” if the explosive is listed in Health
and Safety Code section 12000, the court may use the bracketed sentence stating,
“ is an explosive.” For example, “Nitroglycerine is an explosive.”
However, the court may not instruct the jury that the defendant used an explosive.
For example, the court may not state, “The defendant used an explosive,
nitroglycerine,” or “The substance used by the defendant, nitroglycerine, was an
explosive.” (See People v. Dimitrov (1995) 33 Cal.App.4th 18, 25–26 [39
Cal.Rptr.2d 257]; People v. Brown (1988) 46 Cal.3d 432, 444–445 [250 Cal.Rptr.
604, 758 P.2d 1135].)
If the court gives the instruction on a “folding knife that is not prohibited by Penal
Code section 21510,” give a modified version of CALCRIM No. 2502, Possession,
etc., of Switchblade Knife.
AUTHORITY
• Elements. Pen. Code, § 21310.
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• Need Not Prove Intent to Use. People v. Rubalcava (2000) 23 Cal.4th 322,
328 [96 Cal.Rptr.2d 735, 1 P.3d 52].
• Knowledge Required. People v. Rubalcava (2000) 23 Cal.4th 322, 331–332
[96 Cal.Rptr.2d 735, 1 P.3d 52].
• Substantial Concealment. People v. Wharton (1992) 5 Cal.App.4th 72, 75 [6
Cal.Rptr.2d 673]; People v. Fuentes (1976) 64 Cal.App.3d 953, 955 [134
Cal.Rptr. 885].
• Explosive Defined. Health & Saf. Code, § 12000; People v. Clark (1990) 50
Cal.3d 583, 604 [268 Cal.Rptr. 399, 789 P.2d 127].
• Dirk or Dagger Defined. Pen. Code, § 16470.
• Dirk or Dagger—No Length Requirement. In re Victor B. (1994) 24
Cal.App.4th 521, 526 [29 Cal.Rptr.2d 362].
• Dirk or Dagger—Object Not Originally Designed as Knife. In re Victor B.
(1994) 24 Cal.App.4th 521, 525–526 [29 Cal.Rptr.2d 362].
• Dirk or Dagger—Capable of Ready Use. People v. Sisneros (1997) 57
Cal.App.4th 1454, 1457 [67 Cal.Rptr.2d 782].
• Dirk or Dagger—Pocketknives. In re Luke W. (2001) 88 Cal.App.4th 650,
655–656 [105 Cal.Rptr.2d 905]; In re George W. (1998) 68 Cal.App.4th 1208,
1215 [80 Cal.Rptr.2d 868].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Public
Peace and Welfare, § 162.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.02[2][a][i] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144,
Crimes Against Order, § 144.01[1][a] (Matthew Bender).
RELATED ISSUES
Knowledge Element
“[T]he relevant language of section 12020 is unambiguous and establishes that
carrying a concealed dirk or dagger does not require an intent to use the concealed
instrument as a stabbing weapon.” (People v. Rubalcava (2000) 23 Cal.4th 322,
328 [96 Cal.Rptr.2d 735, 1 P.3d 52] [interpreting now-repealed Pen. Code,
§ 12020].) However, “to commit the offense, a defendant must still have the
requisite guilty mind: that is, the defendant must knowingly and intentionally carry
concealed upon his or her person an instrument ‘that is capable of ready use as a
stabbing weapon.’ ([now repealed] § 12020(a), (c)(24).) A defendant who does not
know that he is carrying the weapon or that the concealed instrument may be used
as a stabbing weapon is therefore not guilty of violating section 12020.” (Id. at pp.
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331–332 [emphasis in original] [referencing repealed Pen. Code § 12020; see now
Pen. Code, §§ 16479, 21310].)
Definition of Dirk or Dagger
The definition of “dirk or dagger” contained in Penal Code section 16470 was
effective on January 1, 2012. Prior decisions interpreting the meaning of “dirk or
dagger” should be viewed with caution. (See People v. Mowatt (1997) 56
Cal.App.4th 713, 719–720 [65 Cal.Rptr.2d 722] [comparing old and new
definitions]; People v. Sisneros (1997) 57 Cal.App.4th 1454, 1457 [67 Cal.Rptr.2d
782] [same]; In re George W. (1998) 68 Cal.App.4th 1208, 1215 [80 Cal.Rptr.2d
868] [discussing 1997 amendment].)
Dirk or Dagger—“Capable of Ready Use”
“[T]he ‘capable of ready use’ requirement excludes from the definition of dirk or
dagger a device carried in a configuration that requires assembly before it can be
utilized as a weapon.” (People v. Sisneros (1997) 57 Cal.App.4th 1454, 1457 [67
Cal.Rptr.2d 782].)
Dirk or Dagger—“Pocketknife”
“Although they may not have folding blades, small knives obviously designed to be
carried in a pocket in a closed state, and which cannot be used until there have
been several intervening manipulations, comport with the implied legislative intent
that such knives do not fall within the definition of proscribed dirks or daggers but
are a type of pocketknife excepted from the statutory proscription.” (In re Luke W.
(2001) 88 Cal.App.4th 650, 655–656 [105 Cal.Rptr.2d 905].)
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