People v. Fuentes

• Decision Date: 17 December 1976
• Docket Number: Cr. 28842
• Citation: 134 Cal.Rptr. 885,64 Cal.App.3d 953
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Felipe Alejo FUENTES and Mario Hernandez, Defendants and Appellants.

Page 885

134 Cal.Rptr. 885

64 Cal.App.3d 953

The PEOPLE of the State of California, Plaintiff and Respondent, v. Felipe Alejo FUENTES and Mario Hernandez, Defendants and Appellants.

Cr. 28842.

Court of Appeal, Second District, Division 5, California.

Dec. 17, 1976.

Patricia A. Shanahan, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant Felipe Alejo Fuentes.

Clifford Douglas, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant Mario Hernandez.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., Norman H. Sokolow and Howard J. Schwab, Deputy Attys. Gen., for plaintiff and respondent.

ASHBY, Associate Justice.

In an information filed September 26, 1975, defendants Felipe Alejo Fuentes and Mario Hernandez were charged in count I with robbery in violation of Penal Code section 211. Fuentes was charged also in count II with possession of a dirk or dagger in violation of Penal Code section 12020. Both defendants waived trial by jury and were tried by the court and each was found guilty of 'grand theft person' in violation of Penal Code section 487, subd. 2, a lesser included offense than that charged in count I. Fuentes was also found guilty as charged in count II. Hernandez and Fuentes were committed to the California Youth Authority.

About 2 a.m., August 2, 1975, Officer Robert L. Portillo who was off duty and on his way home saw Fuentes and Hernandez approach the victim, George Martinez, from behind. Fuentes struck the victim in the back of the head with a 'long, pointed object with a duct-taped handle.' When the victim fell to the pavement, both Fuentes and Hernandez went to their knees beside him. The officer saw Fuentes remove a wrist watch and a wallet from the victim. He also saw Hernandez 'rummaging through the pockets of the victim.' The defendants then began running, and Officer Portillo pursued them. He drew his revolver and shouted, 'Police.' A security guard joined the pursuit and they apprehended the defendants a short distance from the site of the crime. Defendants were searched for weapons. Fuentes had the duct-taped dirk and another copper cylindrical-shaped pointed object in his waistband. The victim's wallet and wrist watch were in Fuentes' pockets.

Fuentes contends that there was no evidence to show that the dirk was concealed and argues that '(t)here is not even a suggestion in the record that the dirk was ever anywhere but in plain sight.' The dirk obviously was not in plain sight. This is not a situation where the weapon was carried openly in a sheath or attached to a belt. ¹ The dirk was in Fuentes' waistband. The mere fact that some portion of the handle may have been visible makes it no less a concealed weapon. A defendant need not be totally successful in concealing a dirk to be guilty of violation of Penal Code section 12020, subdivision (a). (See People v. Hale, 43 Cal.App.3d 353, 356, 117 Cal.Rptr. 697; People v. May, 33 Cal.App.3d 888, 891, 109 Cal.Rptr. 396; People v. Tarkington, 273 Cal.App.2d 466, 469, 78 Cal.Rptr. 149.)

Hernandez contends...