In Re Carvallo

California Court of Appeal Jan 15, 1973 No. 11008Published

Before: Elkington

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Holding. The court held that the evidence was insufficient to support a contempt adjudication because the defendant's possession of a folded, cased knife did not support a reasonable inference of intent to improperly use it in the courtroom.

Issues

Whether the evidence supported the superior court's finding of contempt based on the defendant's possession of a knife in the courtroom.

Disposition. reversed

Quotations verified verbatim against the opinion

“We simply hold that under the factual circumstances of this case contempt was not established.”

“we are unable to conclude that from the evidence before the superior court in the instant proceeding, a case of contempt was reasonably made out.”

Opinion

ELKINGTON, J.

Arthur E. Carvallo was found guilty of contempt and sentenced to five days in the county jail therefor, by the Alameda County Superior Court. By a petition for writ of habeas corpus he seeks to set aside the court’s action as beyond its jurisdiction. We issued an order to show cause why the relief sought should not be granted.

We state the factual background according to the rule that the evidence must be taken most strongly in support of the contempt order. (See

In re Gutierrez,

122 Cal.App.2d 661, 664 [265 P.2d 16].)

[985]

Carvallo was charged in the superior court with burglary (Pen. Code, § 459), automobile theft (Veh. Code, § 10851), and receiving stolen property (Pen. Code, § 496). While attending the courtroom one morning for the purpose of setting a trial date he carried a wooden cane approximately four feet long. He did not use the cane to “assist” or “support” himself; he seemed to be carrying it “for ornamental purposes.” “[W]hen he was talking with the Public Defender at the midpoint in the room he used the cane to point to other people, and [the courtroom bailiff] felt it was an offensive gesture. [He] thought that that gesture warranted asking Mr. Carvallo not to carry the cane back in the courtroom.”

During a court recess the bailiff followed Carvallo to the outer corridor. In accordance with a practice to “be cautious of the safety of all persons entering the courtroom” he “confronted Mr. Carvallo and asked him not to bring the cane into the courtroom again,” making that “request for security purposes.” Carvallo gave some “verbal resistance” and saicl “he had every intention of returning to the courtroom with the cane.” On request Carvallo produced an “ID” card at which time a “bulge” was observed in his clothing. Asked to produce the object which was creating the bulge Carvallo extracted “a knife that was folded up” and which was in a little “black case” strapped to his waist. We have seen the knife. It has a single blade which “folds” into the handle. The blade measures

inches, while the overall length of the knife when closed is five inches. It might reasonably be described as an outsized pocket knife. It is not a so-called switchblade knife (see Pen. Code, § 653k), nor is it a dirk or dagger as proscribed by Penal Code section 12020 (see

In Re Carvallo

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ELKINGTON, J.

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