California Court of Appeal Oct 10, 2024 No. E081397Unpublished
Filed 10/10/24 P. v. Moreno CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E081397
v. (Super.Ct.No. FVI21001747)
RODOLFO CASTRO MORENO, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Debra Harris,
Judge. Affirmed.
Matthew A. Lopas, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General,
Charles C. Ragland, Assistant Attorney General, Eric A. Swenson, Junichi P. Semitsu and
Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant and appellant Rodolfo Castro Moreno challenges the sufficiency of the
evidence to support the trial court’s finding he violated probation by keeping a
pocketknife in his bedroom. Defendant had previously retreated to the bedroom during a
family argument and then emerged to twice grab kitchen knives, first stabbing a table
The applicable probation condition here barred defendant from “hav[ing] under
your control dangerous or deadly weapons.” The prohibition has “a plain commonsense
meaning” that applies in two respects. (In re R.P. (2009) 176 Cal.App.4th 562, 570
(R.P.).) First, and most obviously, it precludes probationers “from possessing any item
specifically designed as a weapon.” (Ibid.) Less obviously, but still “sufficiently
precise” to provide adequate due process notice, a “‘no-dangerous-or-deadly-weapon’
probation condition” also “limits . . . possession” of items depending on the person’s
intent. (Id. at pp. 568-570 [meaning of “‘dangerous or deadly weapon’ is clearly
established in the law”].) Thus, the prohibition restricts having “under your control” (as
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stated here) items “not specifically designed as a weapon” where there is intent “to use
[it] to inflict or threaten to inflict . . . great bodily injury” or death. (Ibid., italics added.)
Put another way, the Supreme Court has long distinguished “‘between two classes
of “dangerous or deadly weapons.” There are, first, those instrumentalities which are
weapons in the strict sense of the word, and, second, those instrumentalities which are not
weapons in the strict sense of the word, but which may be used as such.’” (People v.
Graham (1969) 71 Cal.2d 303, 327 (Graham), abrogated on another ground in People v.
Ray (1975) 14 Cal.3d 20, 29, fn. 7 & 32, along with diminished capacity progeny of
People v. Roy (1971) 18 Cal.App.3d 537; see People v. Ricardi (1992) 9 Cal.App.4th
1427, 1433 [noting Graham’s demise only as to diminished capacity defense].)
As Graham explained regarding the two classes of dangerous or deadly weapons:
“The instrumentalities falling in the first class, such as guns, dirks and blackjacks . . . are
weapons in the strict sense of the word and are ‘dangerous or deadly’ to others in the
ordinary use for which they are designed . . . .” (Graham, supra, 71 Cal.3d at p. 327.)
The court recognized that weapons “falling into the second class, such as ordinary razors,
pocket-knives, hatpins, canes, hammers,” etc. may be “capable of being used in a
‘dangerous or deadly’ manner.” (Ibid., italics added.) The court also recognized
regarding items in this class that, depending on the evidence, “‘it may be fairly inferred
. . . that its possessor intended [to hold the item] to use it as a weapon should the
circumstances require.’” (Id. at p. 328.) Thus, Graham held the evidence there sufficient
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to find a codefendant’s shoe “could be used in a dangerous or deadly manner,” but
remanded for proper jury instructions. (Id. at p. 329.)
It was within the trial court’s sound discretion to make the same finding here.
Namely that, based on the kitchen incident in which defendant first collected himself in
his bedroom and then emerged to grab and stab or throw knives, defendant retained his
knife nearby in his dresser to use it to threaten or throw it to assert himself in a temper.
As in R.P., this does not make defendant’s no-dangerous-or-deadly-weapon probation
condition a “‘strict liability prohibition’” that inevitably “punish[es] ‘completely
innocent’ conduct.” (R.P., supra, 176 Cal.App.4th at p. 569.) As the R.P. court stated:
“Like any other probationer, if R.P. is later charged with violating the ‘no-dangerous-or-
deadly-weapon’ probation condition, he is free to contend the item is not a deadly or
dangerous weapon under the specific circumstances of the alleged violation.” (Ibid.) The
same is true for defendant.
Defendant contends the facts regarding his underlying offense “have no bearing on
how the pocket knife was used here.” To the contrary, the court could reasonably
determine defendant’s history was relevant. Defendant did not suggest he held the knife
for self-defense, a hobby, or other valid purpose. (Cf. In re Frank S. (2006)
141 Cal.App.4th 1192, 1194-1196 [where juvenile had been attacked two days earlier and
admitted to officers he had a knife to protect himself from gang members who saw him as
friendly to a rival gang, evidence did not show he held knife to promote, further, or assist
a gang].) It is the court’s province to evaluate the probationer’s intent. (§ 1203.2,
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subd. (a).) We must construe the record in the light most favorable to upholding the
lower court’s decision, including its credibility determinations. (People v. Ochoa (1993)
6 Cal.4th 1199, 1206.) Only “‘“in a very extreme case”’” will we interfere with a
probation decision. (People v. Urke (2011) 197 Cal.App.4th 766, 773.) This is not one
of those cases.
DISPOSITION
The trial court’s finding defendant violated probation is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER J.
We concur:
RAMIREZ P. J.
FIELDS J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the trial court did not abuse its discretion in finding that the defendant violated his probation condition prohibiting the possession of dangerous or deadly weapons by keeping a pocketknife in his bedroom, given his history of using knives to threaten family members.
Issues
Whether sufficient evidence supports the trial court's finding that the defendant violated his probation by possessing a pocketknife.
Whether a pocketknife can be considered a 'dangerous or deadly weapon' under a probation condition based on the circumstances of its possession.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“It was within the trial court’s sound discretion to make the same finding here. Namely that, based on the kitchen incident in which defendant first collected himself in his bedroom and then emerged to grab and stab or throw knives”