NOT TO BE PUBLISHED IN OFFICIAL REPORTS

OPINION

RAMIREZ, P. J.

Defendant Jose Camacho appeals from convictions for carrying a concealed dirk or dagger (Pen. Code,1 § 12020), falsely identifying himself to a police officer (§ 148.9, subd. (a)), and possession of drug paraphernalia. (Health & Saf. Code, § 1364.) He asserts that the constitutional right to bear arms requires that the California prohibition against carrying concealed dirks or daggers be subjected to higher scrutiny than the rational basis test. We conclude that under any test, the statutory prohibition meets constitutional muster.

BACKGROUND

On October 14, 2010, Deputy Sinz conducted a traffic stop of a vehicle in which defendant was riding as a passenger. When he first made contact, defendant was stomping something on the passenger side floorboard. Deputy Sinz asked if defendant had identification, but defendant indicated he did not have any. He then asked defendant for his name, and defendant responded that his name was Arturo Jose Garcia.

Deputy Sinz's partner recognized the driver of the vehicle as someone for whom there was an outstanding warrant, and placed the driver under arrest. Deputy Sinz then asked defendant to exit the vehicle and walked him back to the patrol car. Before patting him down, Deputy Sinz asked defendant if he had anything illegal on him, to which defendant replied that he had a "blade" on him.

When Deputy Sinz proceeded with the patdown, he found a Gerber switchblade knife. This type of switchblade is issued to military personnel and may only be purchased by the military or law enforcement. After removing the knife, Deputy Sinz found a large metal nail with electrical tape around the head portion in one of defendant's pockets. The point of the nail had been sharpened. Deputy Sinz was familiar with this type of weapon which is commonly made by inmates in jail. He placed defendant under arrest. On the floorboard of the vehicle was a black cloth bag containing a glass pipe commonly used to smoke methamphetamine.

After defendant had been fingerprinted, it was discovered that his prints did not match anyone by the name Arturo Jose Garcia. Deputy Sinz learned that defendant's true name was Jose Camacho, and that there was an outstanding warrant for defendant's arrest.

Defendant was charged with three criminal violations:2 carrying a concealed dirk or dagger (count 1, § 12020, subd. (a)(4)), falsely identifying himself to a police officer (count 3, § 148.9, subd. (a)), and possession of paraphernalia used for smoking a controlled substance. (Count 4, Health & Saf. Code, § 11364.) It was further alleged defendant had four prior convictions for which he had served prison terms (prison priors) within the meaning of section 667.5, subdivision (b), and one prior serious or violent felony within the meaning of the Strikes law. (§ 667, subds. (c), (e)(1).) Proceedings relating to the revocation of probation in case No. SWF10000445 trailed.

Jury trial commenced on February 16, 2011. The prior conviction allegations were bifurcated, and defendant waived his right to a jury trial on the priors. During trial, defendant testified that he was doing construction work to repair a house and used the switchblade for cutting drywall in his construction related job. He used the modified nail as a center punch for this work, to mark boards or metal.

On February 24, 2011, the jury returned guilty verdicts on the three counts. Following a court trial on the prior conviction allegations, the court found all the allegations to be true. Defendant's probation in the trailing case was ordered to remain revoked. Defendant was sentenced to the midterm, doubled, a term of four years, on count 1, with concurrent terms for the remaining counts, and consecutive one-year terms for each of the prison priors, for a total sentence of eight years in prison. On the probation revocation case, No. SWF10000445, defendant was sentenced to the midterm of two years to run concurrent with the current case, SWF10002158.3 On May 20, 2011, defendant timely appealed.

DISCUSSION

1. Section 12020, Subdivision (a)(4), Does Not Violate the Second Amendment.

Defendant challenges his conviction for carrying a concealed dirk or dagger, on the ground that the statute impermissibly criminalizes the innocent possession of legal instruments. He asserts that the statutory ban on carrying concealed dirks or daggers should be subjected to something greater than the rational basis test. Although defendant does not directly challenge his conviction as a violation of his right to bear arms, and does not argue that the statute is overbroad, he asserts that the ban on concealed dirks or daggers should be subjected to higher scrutiny because the right to keep and bear arms is among the fundamental rights necessary to our system of ordered liberty.

We treat his challenge as an attack on the constitutionality of section 12020 under the Second Amendment to the Federal Constitution, as interpreted by the United States Supreme Court in District of Columbia v. Heller (2008) 554 U.S. 570 [128 S.Ct. 2783, 171 L.Ed.2d 637] (Heller). While defendant failed to preserve this challenge in the trial court, we reach the issue on its merits as a pure question of constitutional law. (See People v. Yarbrough (2008) 169 Cal.App.4th 303, 310; see also In re Sheena K. (2007) 40 Cal.4th 875, 884.)

Amendment II of the United States Constitution states, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." The Second Amendment protects an individual's right to possess and carry weapons in case of confrontation. (Heller, supra, 554 U.S. at pp. 592, 595.) The Second Amendment is fully applicable to the states by the Due Process Clause of the Fourteenth Amendment. (McDonald v. City of Chicago (2010) 561 U.S. ___ [130 S.Ct. 3020, 177 L.Ed.2d 894], 2010 U.S. LEXIS 5523].)

Neither Heller nor McDonald discussed the applicable standard of review; however, some cases have suggested that an "intermediate scrutiny" (see United States v. Miller (W.D. Tenn. 2009) 604 F.Supp.2d 1162, 1169, 1171-1172) or "heightened scrutiny" is applicable under the Second Amendment (United States v. Masciandaro (4th Cir. 2011) 638 F.3d 458; see also Nordyke v. King (9th Cir. 2011) 644 F.3d 776, 782-283), while at least one court would apply strict scrutiny to all gun-control regulations. (See United States v. Engstrum (D. Utah 2009) 609 F.Supp.2d 1227, 1231-1232.)

We have previously adopted the intermediate level of scrutiny in reviewing the constitutionality of section 12025, because the statute did not completely prohibit or unduly burden the right of law-abiding persons to bear arms, absent guidance from our Supreme Court.4 (People v. Ellison (2011) 196 Cal.App.4th 1342, 1347.) Here, too, we adopt the intermediate or heightened scrutiny standard because section 12020, subdivision (a)(4) does not completely prohibit or unduly burden the right of law-abiding persons to bear arms. (Ibid.)

The right to bear arms is not unlimited. (Heller, supra, 554 U.S. at pp. 595, 626; People v. Ellison, supra, 196 Cal.App.4th at p. 1348.) The "right [is] not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." (Heller, supra, 554 U.S. at p. 626.) The court acknowledged that the majority of 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment and expressly included longstanding prohibitions against carrying concealed weapons in its non-exhaustive list of presumptively lawful restrictions on the right to bear arms. (Ibid.)

Section 12020, subdivision (a)(4) prohibits the carrying of a concealed weapon, specifically a dirk or dagger. It therefore falls within the "presumptively lawful restrictions" on the right to bear arms. The fact that the statutory definition of "dirk or dagger" may criminalize some "innocent" carrying of legal instruments such as steak knives, scissor, and metal knitting needles does not render the statute unconstitutional because "`there is no need to carry such items concealed in public.'" (People v. Rubalcava, supra, 23 Cal.4th at p. 330, quoting Sen. Com. On Crim. Procedure, Analysis of Assem. Bill No. 1222 (1995-1996 Reg. Sess.) as amended May 31, 1995, pp. 3, 5-6.) Moreover, it has been recognized that the fact that a statute may capture some innocent conduct in the future does not rise to the level of a constitutional violation. (Rubalcava, at p. 331; In re R.P. (2009) 176 Cal.App.4th 562, 569.) A statute is only overbroad in the constitutional sense if it "`prohibits a "`substantial amount of constitutionally protected conduct.'"'" (Rubalcava, at p. 333, quoting Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1095.)

The California Supreme Court has previously determined that section 12020 is neither vague nor overbroad, and that holding has not been affected by Heller or McDonald. (See People v. Rubalcava, supra, 23 Cal.4th at pp. 332-333.) Carrying a dirk or dagger in a sheath worn openly suspended from the waist is not prohibited. (§ 12020, subd. (d).) Carrying a concealed dirk or dagger in the home or stored in the glove compartment or trunk of a car is not prohibited. Because the statute does not completely ban the carrying or possession of a dirk or dagger, section 12020, subdivision (a)(4) passes constitutional muster under the intermediate scrutiny standard of review.

2. Clerical Errors in the Abstract of Judgment Need Correcting.

The abstract of judgment for case No. SWF10002158 reflects the terms imposed by the court for count 1 on the front page, but does not mention counts 3 and 4, or the sentence on the probation revocation in case No. SWF10000445. Line 4 of the judicial council form contains a box to be checked by the court clerk to indicate if the defendant was sentenced under the Strikes law. That box is unchecked.

On the back side of the form, line 11 includes a space for "Other orders." On this line, after listing the criminal conviction assessment fee and the requirement that defendant participate in counseling, there is a handwritten interlineation, "See attachment page." On the attachment page one finds that the case is ordered to run concurrent with SWF10000445, and that the defendant was sentenced pursuant to section 667, subdivision (e)(1). The abstract does not conform to the oral sentence and is incorrectly filled out.

The abstract of judgment constitutes the commitment and is the order sending the defendant to prison, and the process and authority for carrying the judgment and sentence into effect; no other warrant or authority is necessary to justify or require its execution. (§ 1213; People v. Mitchell (2001) 26 Cal.4th 181, 185, citing In re Black (1967) 66 Cal.2d 881, 890.) The "abstract is a contemporaneous, statutorily sanctioned, officially prepared clerical record of the conviction and sentence." (People v. Delgado (2008) 43 Cal.4th 1059, 1070 [emphasis by court].) "When prepared by the court clerk, at or near the time of judgment, as part of his or her official duty, it is cloaked with a presumption of regularity and reliability." (Ibid., citing Evid. Code, §§ 660, 664, 1280.) It should go without saying that accuracy is essential in a document that prescribes the execution of sentence to the Department of Corrections and Rehabilitation (CDCR) and to which a criminal investigation and identification number is assigned for interagency use. (§ 1213, subd. (a).)

The CDCR relies on the information contained in the abstract to determine a defendant's release date, as well as to determine where the defendant should be housed, based on a classification score determined in reliance on the information about the conviction contained in the abstract. (See 15 Cal. Code of Regs. §§ 3075 [initial intake], 3077 [criteria for County Assessment Program], 3078.3 [criteria for Alternative Custody Program Exclusion], 3269 [criteria considered for inmate housing assignments], 3375 [classification process], 3375.1 [inmate placement based on classification score].) Misplaced information on the abstract of judgment can result in errors in the defendant's classification score. With thousands of inmates received by CDCR for processing and classification, misplaced information on an abstract of judgment can result in errors or the unnecessary consumption of time on the part of CDCR.

This court has the authority to correct clerical errors at any time. (People v. Mitchell, supra, 26 Cal.4th at pp. 186-187.) The clerk is directed to amend the abstract of judgment to reflect the following: (a) At the top of the form where the case number for the current case is entered under item A, the case number for the probation revocation case (SWF10000445) should be listed under item B; (b) in item 1, the counts of conviction for which concurrent terms were imposed in the instant case, as well as the concurrent terms for the counts in case No. SWF10000445 should be added to the first table; (c) in item 4, the box should be checked to indicated that the sentence was imposed under the Strikes law; and (d) in item 11, on the second page of the abstract, the reference to the attachment page should be deleted. Once the abstract of judgment for case No. SWF10002158 is amended, a separate abstract of judgment for the companion case, No. SWF10000445, is unnecessary.

DISPOSITION

The clerk is directed to prepare an amended abstract of judgment and to forward a copy to the Department of Corrections and Rehabilitation. The judgment is affirmed.

KING, J. and MILLER, J., concurs.