Petitioner, Ray Anthony Bills, was arrested in the City of Fairfield on January 20, 1978, sometime after midnight. After his preliminary examination, petitioner was held to answer the information accusing him of a "Violation of Section 12020 of the Penal Code of California" in that he "did willfully, unlawfully and feloniously possess an instrument or weapon of the kind commonly known as a pair of scissors." Petitioner's motion to set aside the information (Pen. Code, § 995) was denied.
Shortly after midnight on January 20, 1978, Officers Colonbomi and Fernandez of the California Highway Patrol were transporting a prisoner. As was their custom, they traveled Highway No. 80. Officer Colonbomi drove off the freeway into Fairfield to get gas for the car he was driving. As he left the freeway, Colonbomi observed petitioner standing on the left side of the road. As the police car returned on Travis Boulevard to the freeway, petitioner was again observed by Colonbomi. Approximately two or three minutes later, after the police car had returned to the freeway, Colonbomi heard a police communication transmitted from the
Officer Colonbomi testified at the preliminary hearing that the Fairfield Police Department broadcast related that the petty theft took place off Travis Boulevard approximately 10 to 15 minutes prior to his observing defendant.
Upon hearing the communication, Colonbomi radioed to see if any other officers were closer to the location; when the call was not answered, Colonbomi and Fernandez turned around and returned to stop petitioner. Contact with petitioner was made near the Travis Boulevard exit from the freeway.
Colonbomi stopped petitioner and asked him for identification. Petitioner produced a driver's license. As this was taking place, California Highway Patrol Officers Nolan and Felter arrived. Officer Colonbomi turned the investigation over to Felter who ran a radio check on petitioner with the identification. As Colonbomi was standing near petitioner, he observed some metallic object in petitioner's right glove. The observation of the metallic object was made approximately within one minute after Colonbomi first observed petitioner. Colonbomi asked petitioner to take his gloves off. As soon as the gloves came off, Colonbomi recognized the metallic object to be a pair of scissors.
Shortly after that, the warrant check indicated that there was an outstanding warrant from Oakland on petitioner, with $85 bail for violation of Vehicle Code sections 4454, registration card in vehicle, 5204, registration tab for car license, and 12815, license lost or destroyed. The warrant indicated "Day serve only." Petitioner was then arrested.
We are in agreement with the parties herein that subdivision (a) is the only relevant provision. Penal Code section 12020, subdivision (a) reads in pertinent part: "Any person in this state ... who carries concealed upon his person any dirk or dagger, is guilty of a felony, and upon conviction shall be punishable by imprisonment in the county jail not exceeding one year or in a state prison...."
The weapon in Ruiz was a filed down bayonet enclosed in a metal sheath resembling a dagger in every detail except that a dagger is more pointed and not so heavy. In Shah, a seven-inch-long switch blade pocketknife with the blade locked in place until released by a button, was held to be a dirk or dagger. Forrest involved an oversized two-bladed pocketknife with pointed tips. Because it was not primarily designed for stabbing in that the blades did not lock in place, Peters, J., held the knife was not a dirk or dagger as a matter of law. In Ferguson, the defendant was carrying an ordinary wooden handled kitchen knife with an eight-inch-long steel blade with a point and one cutting edge. The court reasoned that because the butcher knife had the characteristics of a stabbing and cutting weapon, a jury properly determined that the defendant was armed with a dirk or dagger at the time of a burglary. In Bain, Peters, J., reasoned that a jury question was presented by a folding knife with a blade pocketed in the open position. The pointed five-inch long blade had dull beveled sides, the blade locked into place when manually opened, preventing the hand from slipping onto the blade when used as a stabbing weapon. It was held to be a close question of fact whether the knife was a "dirk or dagger." Finally, in Cabral, it was held as a matter of law that a jail hand made an eight-and-one-half-inch-long piece of rigid wire with a sharpened point, a three-and-one-fourth-inch handle fashioned from shoestrings was a "dirk or dagger." It resembled a homemade ice pick made from a bedspring.
In the instant case we are concerned not with a knife but a pair of unaltered barber scissors. In his testimony at petitioner's preliminary
We can recall some instances wherein scissors served as a rather effective, if not lethal, defensive instrument. Further, we are not so young that we cannot recall the days when our mother's long hat pin served a dual purpose on street cars and the like. We cannot hold that the concealed possession of scissors is a crime unless the Legislature has so provided. We have concluded that Penal Code section 12020 does not embrace a pair of unaltered barber scissors.
People v. Grubb (1965) 63 Cal.2d 614 [47 Cal.Rptr. 772, 408 P.2d 100], is misperceived by the Attorney General. Grubb, of course, held that the possession of an altered baseball bat, taped at one end, heavier at the unbroken end, carried about in a car usable as a billy was a violation of that portion of section 12020 that proscribes the possession of any instrument or weapon "`of the kind commonly known as a billy.'" (At p. 621.) The Grubb court in construing the legislative design and purpose in enacting section 12020 concluded that the statute embraces instruments other than those specially manufactured for criminal purposes and "decrees as criminal the possession of ordinarily harmless objects when the circumstances of possession demonstrate an immediate atmosphere of danger." (At p. 621.)
The Attorney General would have us apply the Grubb principle to petitioner's scissors because at the preliminary examination Officer Colonbomi testified that upon observing the scissors he inquired, "What's that." Petitioner replied, "It's a weapon to be used for my protection." We decline to so apply. We perceive the Grubb principle to be limited specifically to those objects "of the kind commonly known as a...." (Pen. Code, § 12020; italics added.) It is noteworthy that the Grubb court at page 620 asserts, "The Legislature obviously sought to condemn weapons common to the criminal's arsenal; it meant as well `to outlaw instruments which are ordinarily used for criminal and unlawful purposes.' [Citations.]" Moreover to the point, in People v. Bain, supra, 5 Cal.3d 839, 850, the Supreme Court instructs that the term "`dirk or
We find the court erred in denying petitioner's motion to dismiss pursuant to Penal Code section 995. Let a writ of prohibition issue ordering the respondent superior court to refrain from any further action in petitioner's herein pending criminal prosecution save and except dismissing the same.
Feinberg, J., and Halvonik, J., concurred.
A petition for a rehearing was denied December 29, 1978, and the opinion was modified to read as printed above. Feinberg, J., was of the opinion that the petition should be granted. The petition of the real party in interest for a hearing by the Supreme Court was denied February 28, 1979.