People v. Findlay CA3 ( 2023 )

Filed 7/21/23 P. v. Findlay CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Yolo)
----
THE PEOPLE, C096373
Plaintiff and Respondent, (Super. Ct. No. CR20213606)
v.
SANDER IAN FINDLAY,
Defendant and Appellant.
A jury found defendant Sander Ian Findlay guilty of carrying a concealed dirk or
dagger. The trial court found true the allegations that defendant was armed or used a
weapon at the time of the crime; that defendant was on probation in numerous other cases
at the time of the crime; and that defendant’s prior performance on probation was not
satisfactory. The trial court granted defendant probation for two years and ordered
probation reinstated as to all other matters. On appeal, defendant contends: (1) the
evidence presented at trial was insufficient to support his conviction; and (2) the trial
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court abused its discretion by admitting prior act evidence of defendant threatening to
stab his neighbors. We will affirm the judgment.
I. BACKGROUND
On December 24, 2021, police officers were dispatched to a liquor store in Davis
in response to a complaint that a man was attempting to steal alcohol and refusing to
leave the business. Upon arrival, Officer Sandeep Maan saw defendant inside the
entrance of the store. Officer Maan asked defendant to step outside, which defendant
initially said he could not do because he had merchandise in his pocket. At some point,
Officer Nicholas Burke also arrived onto the scene. The officers handcuffed and
searched defendant and found an unopened beer can in his pants pocket. During the
search, defendant informed the officers he had a folding knife in his pocket but stated, “it
won’t poke you, though, it’s folded.” Officer Maan located the knife in defendant’s right
jacket pocket, locked in the open position. Defendant did not respond when Officer
Burke informed defendant that the knife was open.
Defendant was charged with carrying a concealed dirk or dagger. (Pen. Code,
§ 21310.)1 It was further alleged, as circumstances in aggravation, that: defendant was
armed with or used a weapon at the time of the commission of the crime (Cal. Rules of
Court, rule 4.421(a)(2));2 defendant was on probation when the crime was committed
(rule 4.421(b)(4)); and defendant’s prior performance on probation was unsatisfactory
(rule 4.421(b)(5)).
At trial, defendant testified that he believed the folding knife was closed in his
pocket when he was apprehended. He said the knife was for “hygienic applications,”
such as cleaning his nails. He further claimed that he did not intend to commit a crime.
1 Undesignated statutory references are to the Penal Code.
2 Undesignated rule citations are to the California Rules of Court.
2
Rather, defendant claimed he wanted to be detained for a probation violation to avoid
sleeping outside in the cold. As a term of his probation, defendant could not possess
alcohol, or dangerous or deadly weapons. On cross-examination, defendant said, “I do
understand that a knife is capable of inflicting bodily harm,” and he acknowledged that a
knife can cause serious bodily injury or death. He also acknowledged that the
pocketknife found on him was in fact a knife and was not dull. Defendant testified that
when opening the blade into the locked position, there is an “audible snap,” and that you
have to engage the locking mechanism to close the blade. Officer Maan testified that the
blade, which was shown to the jury, was sharp and capable of inflicting serious injury.
Officer Maan also demonstrated how the blade could not be closed without releasing the
locking mechanism in the handguard. The knife’s blade was two inches long.
Three videos were admitted into evidence at trial.3 Two of the videos were
Officer Maan’s and Officer Burke’s bodycam footage showing them discovering the
open knife in defendant’s pocket. The third video, which was admitted over defense
counsel’s objection, is from a prior arrest of defendant on January 19, 2021. In that
video, defendant tells the arresting officer he is going to stab his neighbors: “What I’m
3 The video exhibits transmitted by the trial court were not viewable as the video files
had been corrupted. The trial court was unable to transmit viewable copies of these
exhibits. The Office of the Attorney General subsequently submitted three videos to this
court that were obtained directly from the prosecutor in this case. The Attorney General
was confident the videos submitted were the same as the video exhibits shown to the jury,
though they did not bear markings as such. This court provided defendant with a copy of
the three videos and the parties were given an opportunity to object to augmenting the
record with these videos. No objections were lodged, and this court ultimately
augmented the record to include the three videos submitted by the Attorney General.
This court shares the Attorney General’s confidence that the videos were the same as
those shown to the jury as they are consistent with the testimony of what occurs in each
video. Moreover, though none of the videos transmitted by the trial court could be
viewed, two of the video exhibits could be opened, and those videos were the same
length as the corresponding videos submitted by the Attorney General.
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going to do is kick in their door and I’m going to stab all of them in the face. . . . I’m
going to take a knife, a very stable knife, and I’m going to stab them all.” Defendant then
proceeds to curse at the arresting officer. Defendant is naked in the video but covered
with a blanket and possibly intoxicated.
The jury was instructed that defendant’s statements from this video were to be
used for the limited purpose of showing that “defendant knew that the dirk or dagger
could readily be used as a stabbing weapon,” that the evidence was to be used for no
other purpose, and that the jury should not conclude from the video that defendant has a
bad character or is predisposed to commit crimes. In closing arguments, the prosecution
emphasized that defendant’s statements could be used to establish the requisite
knowledge but not for an improper purpose. The prosecution also argued that defendant
intended to violate his probation by being discovered with the open pocketknife, which is
why he informed the officers the knife was in his pocket.
The jury found defendant guilty of concealing a dirk or dagger and the trial court
found true the alleged circumstances in aggravation. The court granted defendant
probation for two years and ordered probation reinstated as to all other matters.
II. DISCUSSION
A. Sufficiency of the Evidence
Defendant argues the evidence presented at trial was insufficient to establish guilt,
and therefore the verdict violated his due process rights. More specifically, defendant
maintains that “no reasonable trier of fact could have found beyond a reasonable doubt
that [he] knew the small pocket[]knife could be used as a stabbing weapon that could
inflict great bodily injury or death under the circumstances of this case.” We reject
defendant’s argument.
A defendant bears a “massive burden” when claiming insufficiency of the
evidence because our role on appeal is a limited one. (People v. Akins (1997)
56 Cal.App.4th 331, 336.) “In reviewing the sufficiency of the evidence to support a
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criminal conviction, we review the record ‘ “in the light most favorable to the judgment
to determine whether it discloses substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” [Citation.]’ [Citation.] We do not reweigh
the evidence or revisit credibility issues, but rather presume in support of the judgment
the existence of every fact that could reasonably be deduced from the evidence.” (People
v. Pham (2009) 180 Cal.App.4th 919, 924-925.) “Reversal . . . is unwarranted unless it
appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to
support [the conviction].’ ” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
Section 21310 prohibits a person from carrying a concealed dirk or dagger. A
“dirk” or “dagger” is defined as “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.” (§ 16470.) A “pocketknife is capable of ready use as a stabbing weapon that
may inflict great bodily injury or death only if the blade of the knife is exposed and
locked into position.” (Ibid.) Our Supreme Court has explained, under a prior version of
section 21310,4 “the intent to use the concealed instrument as a stabbing instrument is not
an element of the crime of carrying a concealed dirk or dagger.” (People v. Rubalcava
(2000) 23 Cal.4th 322, 331 (Rubalcava).) That said, “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.’ [Citation.] 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” the statute. (Id. at p. 332.) CALCRIM No. 2501, as given to the jury in this
case, provides: “When deciding whether the defendant knew the object could be used as
4 Former section 12020, subdivision (a)(4) is now section 21310, and former section
12020, subdivision (c)(24) is now section 16470, without relevant change.
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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.” This instruction should be provided
“only if [the object at issue] may have innocent uses.” (CALCRIM No. 2501.)
Defendant argues the evidence did not establish his knowledge that he was
carrying a dirk or dagger that could readily be used as a stabbing weapon. In support,
defendant points to his statement at the time of his arrest, that the knife “won’t poke you,
though, it’s folded,” and his trial testimony that when he was arrested, he believed the
knife was closed. But the jury was not required to credit defendant’s assertions and could
have reasonably found, based on the surrounding circumstances, that defendant knew the
folding knife was open and knew it could be used as a stabbing weapon. Given the size
and rigidity of the knife when opened, the jury could have concluded that defendant
would have felt whether the knife was open or closed in his pocket. The jury could have
also reasonably found that the knife did not open accidentally because the knife audibly
clicks when locked open, and thus defendant must have intentionally opened it and
placed it in his pocket. Further, defendant admitted he was trying to be detained for
violating his probation. One term of his probation was that he was not permitted to
possess dangerous or deadly weapons. The jury could have therefore concluded that
defendant sought to violate his probation by being discovered with an open
pocketknife—a possibility the prosecution raised in closing argument. Defendant also
conceded in his testimony that a knife could cause serious bodily injury and that his
pocketknife was not dull. In light of these circumstances, the jury could have found
implausible defendant’s claims that he did not know his knife was open and that the knife
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only had hygienic applications.5 Accordingly, we find the evidence sufficient to have
convinced the jury of defendant’s guilt beyond a reasonable doubt.
B. Admissibility of Prior Uncharged Conduct
Defendant next argues the trial court erred in admitting evidence of defendant’s
prior uncharged conduct from his arrest on January 19, 2021, because it was
impermissible propensity evidence and because its probative value was substantially
outweighed by the other Evidence Code section 352 factors. We disagree.
Evidence Code section 1101, subdivision (a) “ ‘expressly prohibits the use of an
uncharged offense if the only theory of relevance is that the accused has a propensity (or
disposition) to commit the crime charged and that this propensity is circumstantial proof
that the accused behaved accordingly on the occasion of the charged offense.’ ” (People
v. Chhoun (2021) 11 Cal.5th 1, 25.) Notwithstanding this prohibition, “Evidence Code
section 1101[, subdivision ](b) provides for the admissibility of uncharged acts based on
noncharacter theories. Evidence of prior conduct is admissible when relevant to
demonstrate a fact other than disposition to commit a crime, ‘such as motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of mistake or accident.’ ” (People
v. Clark (2021) 62 Cal.App.5th 939, 957.) The other requirements for admissibility must
also be met—specifically, “the uncharged act must be relevant to prove a fact at issue
5 Defendant points to cases that have suggested, in dicta, there may be potential
limitations to section 21310’s application where the defendant possesses an instrument
for an innocent purpose or in accordance with its ordinary legitimate design. (See People
v. Hester (2020) 58 Cal.App.5th 630, 638; People v. Mitchell (2012) 209 Cal.App.4th
1364, 1372.) But defendant identifies no case applying this as a defense, and our
Supreme Court has made clear that, under this statute, a “defendant’s intended use of the
instrument is neither an element of the offense nor a defense.” (Rubalcava, supra,23 Cal.4th at p. 334, emphasis added.) Further, no evidence was adduced at trial
pertaining to the “ordinary legitimate design” of defendant’s pocketknife, and the jury
was properly instructed under CALCRIM No. 2501 on how to decide whether defendant
had the requisite knowledge given any potential “innocent uses” for the pocketknife.
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(Evid. Code, § 210), and its admission must not be unduly prejudicial, confusing, or time
consuming (Evid. Code, § 352).” (People v. Leon (2015) 61 Cal.4th 569, 597-598.)
A trial court’s ruling on the admissibility of evidence under Evidence Code
sections 1101 and 352 is reviewed for abuse of discretion. (People v. Leon, supra,61 Cal.4th at p. 597.) Under this standard, a trial court’s ruling will not be disturbed
unless the court exercised its discretion in an arbitrary, capricious, or patently absurd
manner that resulted in a manifest miscarriage of justice. (People v. Foster (2010)
50 Cal.4th 1301, 1328-1329.) It is defendant’s burden to establish an abuse of discretion
on appeal. (People v. Albarran (2007) 149 Cal.App.4th 214, 225.)
As discussed, ante, the prosecution had to prove that defendant knew the
pocketknife could readily be used as a stabbing weapon. (See Rubalcava, supra,23 Cal.4th at p. 332; CALCRIM No. 2501.) The People argue the video was properly
admitted to prove defendant’s knowledge of this point. We agree. Defendant’s
statements from January 19, 2021, show he knew that a knife, generally, could be used as
a stabbing weapon. This makes it more likely defendant knew that the knife in his pocket
on December 24, 2021, could be used as a stabbing weapon—a material fact in this case.
Anticipating this point, defendant argues that “common knowledge” such as this should
not be established with prior act evidence. But regardless how common the knowledge
is, the prosecution was required to prove defendant’s knowledge beyond a reasonable
doubt. (See People v. Winkler (2020) 56 Cal.App.5th 1102, 1151 [“ ‘By pleading not
guilty . . . defendant placed all elements of the crime in dispute’ ”]; cf. People v. Hendrix
(2013) 214 Cal.App.4th 216, 245 [explaining that other crimes evidence was unnecessary
to prove common knowledge where the prior acts did not even establish such
knowledge].)
Defendant contends the evidence should have been excluded because the prior
conduct (making threats and stalking) and the offense at issue (concealing a dirk or
dagger) were insufficiently similar. But “[w]hether similarity is required to prove
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knowledge[,] and the degree of similarity required[,] depends on the specific knowledge
at issue and whether the prior experience tends to prove the knowledge defendant is said
to have had in mind at the time of the crime.” (People v. Hendrix, supra,
214 Cal.App.4th at p. 241.) Both the prior conduct and the present offense concern a
knife, and defendant’s statements on January 19, 2021, tend to prove the knowledge
required to commit the present offense. This degree of similarity is sufficient given the
circumstances.
Finally, defendant argues the trial court abused its discretion under Evidence Code
section 352 by admitting the video. Evidence Code section 352 provides that a court may
exclude evidence if its probative value is substantially outweighed by the probability that
its admission will (a) necessitate undue consumption of time or (b) create substantial
danger of undue prejudice, of confusing the issues, or of misleading the jury. “ ‘Since
“substantial prejudicial effect [is] inherent in [such] evidence,” uncharged offenses are
admissible only if they have substantial probative value.’ ” (People v. Ewoldt (1994)
7 Cal.4th 380, 404, italics omitted.) At the same time, “[t]he ‘prejudice’ which [Evidence
Code] section 352 seeks to avoid is that which ‘ “ ‘uniquely tends to evoke an emotional
bias against the defendant as an individual and which has very little effect on the
issues.’ ” ’ ” (People v. Cage (2015) 62 Cal.4th 256, 275.)
There was no abuse of discretion. As discussed ante, the prior uncharged conduct
was probative of a material fact. The prosecution presented the evidence through the
brief testimony of a single witness, and only mentioned it once in summation. (See
People v. Jones (2011) 51 Cal.4th 346, 371 [finding no abuse of discretion for admitting
prior act under Evidence Code section 352 where “[t]he evidence was presented quickly,
and the parties did not dwell on it”].) The trial court excluded other prior conduct
concerning defendant’s possession of a knife, demonstrating that the court carefully
exercised its discretion in weighing any evidence’s probative value against the other
Evidence Code section 352 considerations. (See ibid.) Further, the jury was instructed
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that the evidence could only be considered for the limited purpose of proving that
“defendant knew that the dirk or dagger could readily be used as a stabbing weapon” and
could not be used to draw the conclusion that defendant was predisposed to commit
crimes. We presume the jury understood and followed the trial court’s instruction
(People v. Sanchez (2001) 26 Cal.4th 834, 852), which was reiterated by the prosecutor
during closing argument. This mitigated the potential for prejudice and “eliminated any
danger ‘of confusing the issues, or of misleading the jury.’ ” (People v. Lindberg (2008)
45 Cal.4th 1, 26.)
Defendant fails to establish that the trial court “ ‘ “exercised its discretion in an
arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of
justice.” ’ ” (People v. Foster, supra, 50 Cal.4th at pp. 1328-1329.) We thus conclude
the trial court acted within its discretion under Evidence Code section 352.
III. DISPOSITION
The judgment is affirmed.
/S/
RENNER, J.
We concur:
/S/
ROBIE, Acting P. J.
/S/
MAURO, J.
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