Filed 2/26/21 P. v. Pineda CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

MARIO DANIEL PINEDA,

Defendant and Appellant.

 B302298

 (Los Angeles County

 Super. Ct. No. GA105574)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Michael Villalobos, Judge. Affirmed.

Adrian K. Panton, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Paul M. Roadarmel, Jr., and John Yang, Deputy 

Attorneys General for Plaintiff and Respondent.

________________________________
2

A jury convicted defendant Mario Daniel Pineda 

of carrying a concealed dirk or dagger (Pen. Code,1 § 21310), 

misdemeanor possession of a controlled substance (Health 

& Saf. Code, § 11377), and misdemeanor possession of a device 

for injecting a controlled substance (id., § 11364). He admitted 

an allegation that he had a prior strike conviction. (§§ 667, 

subds. (b)–(j), 1170.12.) The court sentenced defendant to four 

years in prison.

Defendant contends that the court erred in excluding 

evidence of his use of the alleged dirk or dagger as a tool of 

his employment and in denying his request for a certain jury 

instruction. We affirm. 

FACTUAL AND PROCEDURAL SUMMARY

On April 15, 2019, at approximately 1:00 a.m., defendant 

was asleep in the driver’s seat of a car parked illegally in a 

parking lot adjacent to a public park. No one else was in or 

near the vehicle. Los Angeles County Sheriff’s Deputy Brittany 

Wallace approached the car. Deputy Wallace saw a syringe

on the center console within arm’s reach of defendant. The 

syringe contained a substance that Deputy Wallace believed

to be—and was later determined to be—a usable amount of 

methamphetamine. Deputy Wallace woke defendant and asked 

him to get out of the car. He complied.

Defendant was wearing workout shorts, a T-shirt, and 

a sweatshirt. Deputy Wallace searched defendant for weapons 

and found an unsheathed 11-inch knife with a six-inch 

double-edged blade underneath defendant’s sweatshirt and 

1 Subsequent unspecified statutory references are to the 

Penal Code.
3

between the elastic waistband of the shorts and defendant’s 

stomach. Deputy Wallace placed defendant in handcuffs and

retrieved the knife. Defendant told Deputy Wallace, “I don’t 

know what that is. I don’t know how that got there.” 

Deputy Wallace placed defendant in the back seat of 

her patrol car and retrieved the syringe and its contents from 

defendant’s car. During an inventory of defendant’s car, Deputy 

Wallace found on the front passenger side of the car a sheath 

that appeared to fit the knife found on defendant. She also 

found a tool bag and school supplies in the trunk of the car.

Additional facts pertaining to the issues on appeal are set 

forth below.

DISCUSSION

Defendant contends the court prejudicially erred by:

(1) excluding testimony from his mother and brother that he 

carried his knife in a sheath and used the knife in connection 

with his work; and (2) refusing to instruct the jury with certain 

optional, bracketed language in CALCRIM No. 2501. We reject 

these arguments. 

A. Section 21310

Section 21310, generally, makes it a crime for any person 

to carry “concealed upon the person any dirk or dagger.” A 

“ ‘dirk’ or ‘dagger’ means 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.) 

The offense is a general intent crime that does not require 

proof of the defendant’s “intent to use the concealed instrument 

as a stabbing instrument.” (People v. Rubalcava (2000) 23 

Cal.4th 322, 331 (Rubalcava).) Thus, evidence of such intent is 
4

ordinarily “irrelevant and should not be considered by the 

trier of fact when deciding whether a given knife qualifies as 

a dirk or dagger.” (People v. Gonzales (1995) 32 Cal.App.4th 

229, 234; see also People v. Barrios (1992) 7 Cal.App.4th 501, 

506 [trial court erred in allowing jury to consider evidence of 

the defendant’s intent in possessing a knife].) 

The offense is not a strict liability crime, however, and

our Supreme Court has explained that the “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.’ ” (Rubalcava, supra, 23 Cal.4th at pp. 331–332.) 

The defendant must therefore know that the instrument “ ‘is

capable of ready use as a stabbing weapon’ ” (id. at p. 331) and 

“intentionally commit the act of concealment” (People v. Mitchell

(2012) 209 Cal.App.4th 1364, 1381 (Mitchell)).

The requirement that the defendant know the instrument 

is capable of ready use as a stabbing weapon is the subject of 

the following optional, bracketed instruction under CALCRIM 

No. 2501: “When deciding whether the defendant knew the 

object . . . could be used as 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.” According to the accompanying bench notes, this 

instruction should be given “only if the object was not designed 

solely for use as a stabbing weapon but may have innocent 

uses.” (Bench Notes to CALCRIM No. 2501 (2020) p. 360.) We

will refer to this below as the knowledge instruction.
5

In the absence of a specific intent requirement, 

section 21310 has been criticized as “stupendously broad” 

(People v. Hester (2020) 58 Cal.App.5th 630, 640 (Hester)

(conc. opn. of Wiley, J.)), petn. for rev. pending, petn. filed 

Jan. 25, 2021, S266806) because it potentially criminalizes

“the ‘innocent’ carrying of legal instruments such as steak 

knives, scissors and metal knitting needles’ ” (Rubalcava, 

supra, 23 Cal.4th at p. 330), as well as pencils, pens, letter 

openers, and “a miniature replica of the Eiffel Tower” (Hester, 

supra, 58 Cal.App.5th at pp. 639–640 (conc. opn. of Wiley, J.)). 

As Justice Wiley has pointed out, even a “morally innocent 

grocery clerk” who handles a box cutter knows the tool could 

be used as a stabbing weapon (id. at p. 645 (conc. opn. of 

Wiley, J.)); and when that clerk puts the tool inside his pocket, 

he has apparently committed a crime. 

To avoid convicting “morally blameless” possessors of 

concealed instruments that could be used as a stabbing weapon 

(Hester, supra, 58 Cal.App.5th at p. 638, petn. for rev. pending, 

petn. filed Jan. 25, 2021, S266806), some courts have recognized 

a defense: “[W]hen a defendant is charged with an offense 

that penalizes possession of an instrument that is ordinarily 

usable for peaceful purposes, the defendant may justify the

possession by showing the possession was ‘in accordance 

with [the instrument’s] ordinary legitimate design’ ” (Mitchell, 

supra, 209 Cal.App.4th at p. 1372, quoting People v. Grubb

(1965) 63 Cal.2d 614, 622, fn. 9 (Grubb); accord, People v. 

Bermudez (2020) 45 Cal.App.5th 358, 370; Hester, supra, 

58 Cal.App.5th at p. 637; see also id. at p. 645 (conc. opn. of 

Wiley, J.) [“[t]his defense is what insulates morally innocent 

people from the statute’s expansive scope”]). Although the 
6

contours of this defense for the morally blameless remain 

to be settled, the Supreme Court’s decision in Rubalcava

precludes a defense based upon the defendant’s intended 

use of the instrument (Rubalcava, supra, 23 Cal.4th at p. 334 

[“defendant’s intended use of the instrument is neither an 

element of the offense nor a defense”].) 

B. Additional Facts

At the outset of the trial, defense counsel indicated that

he intended to introduce testimony by defendant’s brother 

and mother. The witnesses would testify that defendant 

regularly carried his knife in a sheath, and defendant’s brother 

would testify that he worked with defendant at a construction 

site where they installed rubber mats for playgrounds and 

defendant used the knife to cut the flooring for the playground. 

The prosecutor requested that the evidence be excluded as 

irrelevant or inadmissible under Evidence Code section 352.

Defense counsel stated that the defense’s “position is that 

the knife was not on [defendant’s] person; that the knife was 

on the seat next to him inside the sheath.” Counsel conceded, 

however, that evidence that defendant did not have the knife on 

his person at the time he was detained was “not going to come in

because the brother wouldn’t know.” The court stated that such 

evidence “would only come in if [defendant] testified,” to which 

defense counsel added, “[o]r if the officer agreed with me[,] 

which is unlikely.”

Defense counsel argued that he intended to offer 

the testimony of defendant’s brother to show that defendant 

“regularly possessed that knife for the purposes of work.”

He referred the court to the optional, bracketed knowledge 

instruction in CALCRIM No. 2501, set out above, which permits 
7

the jury to consider the “surrounding circumstances” and “other 

facts” “when deciding whether the defendant knew the object . . .

could be used as a stabbing weapon.”

The court rejected this ground, stating that “what 

the People need to prove is simply that [the knife] was in his 

possession, and that it was concealed. The intended use of 

the knife is not an issue. And even if it is true that he used it 

at work, the fact that the knife was concealed is controlling.” 

Furthermore, “just looking at the knife, it fits the description 

of a weapon that could be used for . . . stabbing purposes. The 

fact that [defendant] uses it at work[,] even if that’s true, is not 

really relevant because it doesn’t matter.”

Defense counsel further argued that the defendant’s 

mother and brother would testify that defendant always

kept his knife in a sheath. The court rejected this argument, 

explaining that carrying the knife in a sheath “does not 

necessarily mean that it’s always carried not concealed,” and 

that the defense’s proffer did not indicate that the witnesses 

would testify that defendant, “as a habit, always carries it 

outside” of his clothing.

After the close of evidence, the court and counsel 

discussed jury instructions. The court indicated it would give 

CALCRIM No. 2501 in part as follows: “[T]he People must 

prove that one, the defendant carried on his person a dirk 

or dagger. Two, the defendant knew that he was carrying it. 

Three, it was substantially concealed on the defendant’s person. 

And four, the defendant knew that it could readily be used as 

a stabbing weapon. The People do not have to prove that the 

defendant used or intended to use the alleged dirk or dagger as 

a weapon.”
8

Defense counsel requested that the court further 

instruct the jury with the knowledge instruction: “ ‘When 

deciding whether the defendant knew the object . . . could be 

used as a stabbing weapon[,] consider all of the surrounding 

circumstances[,] including the time and place of possession. 

Consider also the destination of the defendant, alteration of the 

object from standard form[,] and other facts[,] if any.’ ” Counsel 

argued that the instruction was proper because the knife has 

“innocent uses.”

The prosecution argued that the knife is, on its face, a 

dangerous weapon and there was no evidence of an innocent 

purpose.

Defense counsel responded by pointing out that he 

attempted to introduce evidence of an innocent purpose through 

the testimony of defendant’s brother that defendant used the 

knife in his work. Counsel then requested that he be permitted 

to reopen the case to permit such testimony.

The court denied defense counsel’s requests. The court 

explained that “it is clear that the defendant knew the object 

could be used as a stabbing weapon just by simply looking at it.” 

There was thus “no issue” that the weapon could be used as a 

stabbing weapon. Furthermore, the court added, regardless of 

defendant’s purpose for possessing it at the time of his arrest, 

his concealment of it “is still a violation of the law.”

C. The Exclusion of Testimony of Defendant’s 

Mother and Brother to Impeach Deputy 

Wallace

Defendant contends that the court should have allowed 

the defendant’s mother and brother to testify as to defendant’s 

practice of carrying his knife in a sheath for the purpose of 
9

impeaching the credibility of Deputy Wallace’s testimony that 

the knife was concealed and unsheathed.

We review a trial court’s evidentiary rulings generally, 

and rulings that evidence is irrelevant in particular, for an 

abuse of discretion. (People v. Mickel (2016) 2 Cal.5th 181, 

219-220; People v. Clark (2016) 63 Cal.4th 522, 597; see People 

v. Jones (2013) 57 Cal.4th 899, 947 [“[t]he trial court has broad 

discretion to determine the relevance of evidence”].) If the court 

erred, we will reverse the judgment only if, based on our review 

of the entire record, it is reasonably probable that a result more 

favorable to defendant would have been reached in the absence 

of the error. (People v. Cunningham (2001) 25 Cal.4th 926, 999; 

People v. Watson (1956) 46 Cal.2d 818, 836.)

Evidence is relevant if it tends, “ ‘ “ ‘logically, naturally, 

and by reasonable inference’ to establish material facts.” ’ ” 

(People v. Wilson (2006) 38 Cal.4th 1237, 1245.) Evidence that 

“leads only to speculative inferences” is irrelevant. (People v. 

Morrison (2004) 34 Cal.4th 698, 711.)

Defendant attempts to demonstrate the relevance of 

the excluded testimony by explaining that “there was a sheath 

found in the car and the proffered testimony from [defendant’s] 

brother would be that [defendant] used the knife . . . to cut 

flooring. This was known to the brother because he worked 

with [defendant]. From this testimony, the jury could infer that 

the knife was in the sheath when found by the officer.” Because 

the conclusion from this chain of reasoning—that the knife was 

in the sheath at the time of the incident—contradicts Deputy 

Wallace’s testimony, defendant asserts that the evidence is 

relevant to impeach the deputy’s testimony. 
10

We reject this argument. The inferences necessary 

to connect (1) the fact that a sheath was found in the car, 

(2) defendant used the knife in his work to cut flooring, and 

(3) the knife was in the sheath at the time of the incident are 

neither logical, natural, or reasonable. 

That defendant kept the knife in its sheath would narrow 

somewhat the inferential gaps in defendant’s reasoning. Even 

then, however, the connection between (1) defendant’s use of

the knife in his work and carrying it in its sheath and (2) the 

knife being in its sheath on the passenger side of the car at 

the time of his arrest is tenuous and speculative. The court, 

therefore, did not abuse its discretion in excluding the evidence

as irrelevant. (See People v. Guillen (2014) 227 Cal.App.4th 

934, 1024.)

Defendant also supports his argument by asserting that 

the jury could reasonably “conclude that [Deputy] Wallace’s 

testimony was unreasonable” because “[i]t strains credulity to 

think that [defendant] would put an unsheathed knife in his 

waistband while a sheath for the knife was lying next to him. 

The act itself is dangerous.” The point that placing an 

unsheathed knife inside one’s shorts is dangerous is valid and 

was argued at some length to the jury for the purpose of raising 

doubt about Deputy Wallace’s version of the incident. But it 

does little to make the proffered testimony from defendant’s 

mother and brother relevant. Placing an unsheathed knife 

inside one’s shorts is dangerous regardless of whether one 

normally keeps the knife in a sheath.

Even if the court abused its discretion in refusing to 

allow the proffered evidence, defendant has failed to establish 

that the error was prejudicial. Testimony from defendant’s 
11

mother and brother as to how defendant ordinarily carried his 

knife, if relevant at all, would have had little probative impact 

on the issue of whether defendant concealed the knife under his 

clothing at the time of his arrest. In short, it is not reasonably 

probable that defendant would have obtained a different result 

if the court had allowed the excluded evidence.

D. The CALCRIM No. 2501 Knowledge Instruction 

and Denial of Defendant’s Request to Reopen

Defendant contends that the court erred in denying 

his request to reopen the case to permit his brother to testify 

regarding defendant’s use of the knife in his job as a playground 

construction worker and failing to give the knowledge 

instruction in CALCRIM No. 2501. 

We first consider the ruling denying the request to reopen 

the case, which we review for an abuse of discretion. (People v. 

Marshall (1996) 13 Cal.4th 799, 836.) 

Defendant argues that the proffered testimony by

defendant’s brother that defendant used the knife in connection

with his playground construction work was relevant to show

that the knife had “innocent uses.” The testimony was

admissible for that purpose, he contends, based on the 

knowledge instruction in CALCRIM No. 2501. We disagree. 

The knowledge instruction allows the jury to consider the 

“surrounding circumstances” and “other facts” to assist the jury 

in “deciding whether the defendant knew the object . . . could be 

used as a stabbing weapon.” (CALCRIM No. 2501.) According 

to a use note for the instruction it is to be given “only if 

[the] object may have innocent uses” (Use Note to CALCRIM 

No. 2501 (2020) p. 359), and the bench notes similarly state that 

it should be given “only if the object was not designed solely for 
12

use as a stabbing weapon but may have innocent uses.” (Bench 

Notes to CALCRIM No. 2501 (2020) p. 360.)

But the advice from the drafters of the instruction that 

it be given only if the object may have innocent uses does not 

mean that it should be given whenever there is evidence that 

the object has an innocent use; evidence of an innocent use 

for the knife must still have a “tendency in reason to prove or 

disprove” (Evid. Code, § 210) that defendant knew the knife 

“could be used as a stabbing weapon” (CALCRIM No. 2501).2 

Here, the proffered testimony—that defendant used the knife 

to cut rubber mats for playground floors—has no tendency 

to disprove that defendant knew the knife could be used as a 

stabbing weapon. 

During oral argument before this court, defendant raised 

the “morally blameless” defense theory discussed in Hester.

3 

We reject the argument. That defense permits a defendant 

to “justify the possession” “of an instrument that is ordinarily 

usable for peaceful purposes” “by showing the possession was ‘in 

accordance with [the instrument’s] ordinary legitimate design’ ”

(Mitchell, supra, 209 Cal.App.4th at p. 1372; accord, Hester,

2 Defendant relies on the statement in Mitchell that 

“when the instrument may have innocent uses, the jury should

be given” the knowledge instruction. (Mitchell, supra, 209 

Cal.App.4th at p. 1372.) To the extent that Mitchell suggests 

that the knowledge instruction must be given whenever 

the offending instrument has innocent uses—even when the 

innocent uses have no relevance to issues in the case—it is dicta 

because the Mitchell court’s analysis did not depend upon such 

an expansive interpretation of the instruction.

3 Hester was decided after defendant filed his opening 

brief in this case.
13

supra, 58 Cal.App.5th at p. 637, petn. for rev. pending, petn. 

filed Jan. 25, 2021, S266806). The defense appears to be 

intended for persons such as the grocery clerk who innocently 

places his box cutter in his pocket (see id. at p. 645 (conc. 

opn. of Wiley, J.)), the little leaguer whose bat should not be 

mistaken for a billy club (see Grubb, supra, 63 Cal.2d at p. 621),

the “tailor who places a pair of scissors in his jacket” (People v. 

Oskins (1999) 69 Cal.App.4th 126, 138, disapproved in 

Rubalcava, supra, 23 Cal.4th at p. 334, fn. 8), or the parent 

who takes a knife to a PTA potluck (People v. Aubrey (1999) 

70 Cal.App.4th 1088, 1102, disapproved in Rubalcava, supra,

23 Cal.4th at p. 334, fn. 8). Here, even if defendant used his 

11-inch double-edged knife in his playground construction work, 

he was not possessing it for that purpose when it was concealed 

under his waistband while he slept in his illegally parked car

at 1:00 in the morning. Moreover, the defense proffer of the 

brother’s testimony did not include any evidence of the knife’s 

“ ‘ordinary legitimate design.’ ” (See Mitchell, supra, 209 

Cal.App.4th at p. 1372.) The defense that may be available to 

the morally blameless, therefore, was not available to defendant 

here.

The court, therefore, did not err in declining to reopen the 

case to permit the defendant’s brother’s testimony. Because the 

applicability of the knowledge instruction was dependent upon 

the reopening of the case for that purpose, the court’s ruling 

denying the requested instruction, which we review de novo 

(People v. Berryman (1993) 6 Cal.4th 1048, 1089), was correct. 
14

DISPOSITION

The judgment is affirmed. 

NOT TO BE PUBLISHED.

ROTHSCHILD, P. J.

We concur:

CHANEY, J.

FEDERMAN, J.*

* Judge of the San Luis Obispo County Superior Court, 

assigned by the Chief Justice pursuant to article VI, section 6 of 

the California Constitution.