2502. Possession, etc., of Switchblade Knife
The defendant is charged [in Count ______] with unlawfully (possessing in a vehicle/carrying on (his/her) person/selling/ offering or exposing for sale/giving/lending/transferring) a switchblade knife.
To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant (possessed in the (passenger's/ [or] driver's) area of a motor vehicle in a (public place/place open to the public)/carried on (his/her) person/sold/offered or exposed for sale/gave/lent/transferred) a switchblade knife [to another person];
2. The blade of the knife was two or more inches long;
3. The defendant knew that (he/she) (possessed/carried/sold/ offered or exposed for sale/gave/lent/transferred) it [to another person];
4. The defendant knew that it had the characteristics of a switchblade(;/.)
<Give element 5 only if defendant is charged with offering or exposing for sale.>
5. The defendant intended to sell it.]
A switchblade knife is a knife that looks like a pocketknife and has a blade that can be released automatically by a flick of a button, pressure on the handle, flip of the wrist or other mechanical device, or is released by the weight of the blade or any other mechanism. A switchblade includes a spring-blade knife, snap-blade knife, gravity knife, or any other similar type knife. A switchblade knife does not include a knife that opens with one hand utilizing thumb pressure applied solely to the blade of the knife or a thumb stud attached to the blade, if the knife has a detent or other mechanism that provides resistance that must be overcome in opening the blade or that biases the blade back toward its closed position.
[The (passenger's/ [or] driver's) area means that part of a motor vehicle that is designed to carry the (driver/ [and] passengers), including the interior compartment or space within.]
The People do not have to prove that the defendant used or intended to use the alleged switchblade knife as a weapon.
[Two or more people may possess something at the same time.]
[A person does not have to actually hold or touch something to possess it. It is enough if the person has (control over it/ [or] the right to control it), either personally or through another person.]
[The People allege that the defendant (possessed in a vehicle/ carried/sold/offered or exposed for sale/gave/lent/transferred) the following switchblade knives: <insert description of each knife when multiple items alleged>. You may not find the defendant guilty unless all of you agree that the People have proved that the defendant (possessed in a vehicle/carried/sold/ offered or exposed for sale/gave/lent/transferred) at least one of these knives which was a switchblade and you all agree on which switchblade knife (he/she) (possessed in a vehicle/carried/sold/ offered or exposed for sale/gave/lent/transferred).]
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 switchblade knives," inserting the items alleged.
Elements. Pen. Code, § 653k.
Need Not Prove Intent to Use. See People v. Rubalcava (2000) 23 Cal.4th 322, 328 [96 Cal.Rptr.2d 735, 1 P.3d 52]; People v. Mendoza (1967) 251 Cal.App.2d 835, 842-843 [60 Cal.Rptr. 5].
Knowledge Required. See People v. Rubalcava (2000) 23 Cal.4th 322, 331-332 [96 Cal.Rptr.2d 735, 1 P.3d 52].
Specific Intent Required for Offer to Sell. People v. Jackson (1963) 59 Cal.2d 468, 469-470 [30 Cal.Rptr. 329, 381 P.2d 1].
Constructive vs. Actual Possession. People v. Azevedo (1984) 161 Cal.App.3d 235, 242-243 [207 Cal.Rptr. 270], questioned on other grounds in In re Jorge M. (2000) 23 Cal.4th 866, 876, fn. 6, [98 Cal.Rptr.2d 466, 4 P.3d 297].
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Public Peace and Welfare, § 172.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85, Submission to Jury and Verdict, § 85.02[a][i] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes Against Order, § 144.01[a] (Matthew Bender).
Butterfly and Tekna® Knives Included
Butterfly and Tekna knives are prohibited switchblades under Penal Code section 653k. (People ex rel. Mautner v. Quattrone (1989) 211 Cal.App.3d 1389, 1395 [260 Cal.Rptr. 214].)
Where the spring mechanism on the knife did not work, the court found insufficient evidence that the knife was a prohibited switchblade under Penal Code section 653k. (In re Roderick S. (1981) 125 Cal.App.3d 48, 52 [177 Cal.Rptr. 800].)
On the meaning of "public place," see In re Danny H. (2002) 104 Cal.App.4th 92, 98 [128 Cal.Rptr.2d 222], discussing the meaning of public place in Penal Code section 594.1. See also CALCRIM No. 2966, Disorderly Conduct: Under the Influence in Public, and cases cited therein.
(New January 2006)