People v. Smith CA6

Filed 10/16/14 P. v. Smith CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H039617 (Monterey County Plaintiff and Respondent, Super. Ct. No. SS121632)

v.

STEPHEN SEBASTIAN SMITH,

Defendant and Appellant.

Defendant Stephen Sebastian Smith appeals from a judgment of conviction entered after a court trial in which he was convicted of possession of a concealed dirk or dagger (Pen. Code, § 21310 – count 1)1 and resisting a peace officer (§ 148, subd. (a)(1) – count 2). Defendant also admitted that he had a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12). The trial court sentenced defendant to 16 months in state prison on count 1, which was to be served concurrently with a 16-month sentence on count 2. Defendant’s sentence was doubled to 32 months pursuant to section 1170.12. On appeal, defendant contends that there was insufficient evidence to support his convictions. He also contends that section 21310, as applied under the facts of this case, violates the Second and Fourteenth Amendments to the United States Constitution. We conclude that

1 All further statutory references are to the Penal Code.

there was insufficient evidence to support defendant’s conviction of resisting a peace officer and reverse the judgment.

I. Statement of Facts A. Prosecution Case On August 23, 2012, a man who identified himself as Jorge called 911 and stated that he lived at the Northridge Park Apartments. He reported that he had seen “a guy like . . . yelling and everything and screaming, and he was like . . . [¶] calling out” at the apartment complex “two, three minutes ago.” The man had been “just staring” at Jorge and he had a big knife, which Jorge described as “like a Rambo-type thing.” The man carried the knife “like kind of, telling me, ‘Oh, I got a knife, so don’t mess with me.’ But without saying any of that.” Jorge did not want the man to think that he had called the police. Jorge described the man as “a mix, like Hispanic or black, like somewhere in there” and he was wearing pants that were “like one-piece. But it goes all the way up.” Jorge also stated that the man was wearing a faded black sweater and blue jeans. The man was “kind of bald” and had “cornrows” or “dreadlocks on the back.” The man was “calling a name out,” and Jorge was concerned about children in the area. The operator told Jorge that two officers were already en route to the apartment complex. Officer Gavin McVeigh, who was wearing his uniform, was dispatched to the Northridge Park Apartments at about 5:50 p.m. As he drove into the apartment complex, he observed defendant, who was wearing a black sweatshirt and blue jeans, walking in a westbound direction. Defendant’s hair was balding, short in front and “a little past his shoulders” in the back. Officer McVeigh immediately stopped, exited his patrol vehicle, pointed his gun at defendant, and told him to stop. The officer drew his gun due to the nature of the call, that is, a “man with a large knife walking around inside the apartment complex.” Defendant appeared nervous, looked around, and ran. Officer McVeigh was approximately 25 to 30 feet from the defendant when he told him to stop. 2