People v. Cabral

• Decision Date: 25 September 1975
• Docket Number: Cr. 26672
• Citation: 124 Cal.Rptr. 418,51 Cal.App.3d 707
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Ricardo Samuel CABRAL and Daniel R. Gonzales, Defendants and Appellants.

Page 418

124 Cal.Rptr. 418

51 Cal.App.3d 707

The PEOPLE, Plaintiff and Respondent, v. Ricardo Samuel CABRAL and Daniel R. Gonzales, Defendants and Appellants.

Cr. 26672.

Court of Appeal, Second District, Division 3, California.

Sept. 25, 1975.

As Modified Oct. 3, 1975.

Hearing Denied Nov. 20, 1975.

Albert D. Silverman, Canoga Park, under appointment by the Court of Appeal, for defendant and appellant Ricardo Samuel Cabral.

Henry P. Crabtree, Lakewood, under appointment by the Court of Appeal, for defendant and appellant Daniel R. Gonzales.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., James H. Kline and Marc E. Turchin, Deputy Attys. Gen., for plaintiff and respondent.

COLE, ^* Associate Justice (Assigned).

Ricardo Cabral and Daniel Gonzales were each convicted of assault with a deadly weapon upon one Basil Louis in violation of Penal Code section 245, subdivision (a) (Count I). ¹ Also, they were each convicted of carrying a dirk or dagger concealed upon their persons in violation of section 12020 (Count III). Cabral was also convicted of assault with a deadly weapon upon Louis in violation of section 4501, Cabral being a person confined in a state prison other than a person undergoing a life sentence (Count II). Each appeals. We affirm the judgment with respect to Gonzales. We reverse the judgment as to Counts I and III with respect to Cabral, affirm his conviction as to Count II and remand the matter to the trial court to impose sentence upon him as to Count II.

I. Facts

The facts may be simply stated. Cabral and Gonzales were each inmates of the Los Angeles County jail as was the victim, Basil Louis. Another inmate, one Malczewski, saw Cabral and Louis engage in a fight, with Cabral on top of Louis. At this time, Cabral said something in Spanish which Malczewski could not make out. About 30 seconds later Gonzales took the alleged dirk or dagger from his pocket and gave it to Cabral. Malczewski did not watch the fight further but saw Louis return to his own cell bleeding heavily on his left side. Malczewski later saw Gonzales hide the weapon in a cell.

The victim's brother, Curtis Louis, was also an inmate in the jail. He saw Gonzales approach Cabral and hand him what Curtis Louis described as a 'handmade knife or a shiv.' Curtis Louis saw Cabral stab the victim twice in the side with the weapon. Curtis Louis testified that Gonzales tried to hide the weapon.

It was stipulated that Cabral was a person confined in a state prison within the meaning of section 4501. ²

II. Failure To Define 'Dirk or Dagger' And 'Deadly Weapon' In Instructions

Gonzales and Cabral each complain that the trial court failed to define dirk or dagger for the jury in its instructions. ³ The court did so fail and thus left the jury in the dark as to whether the weapon used fell within the prohibition of section 12020. ⁴ At the same time the trial court also failed to define a deadly weapon; Counts I and II each charge assault with a deadly weapon. Since the trial court must instruct the jury on the general principles of law relevant to the issues raised by the evidence, even though not requested to do so, and since those general principles are the ones commonly or closely and openly connected with the facts of the case (People v. Hood (1969) 1 Cal.3d 444, 449, 82 Cal.Rptr. 618, 462 P.2d 370) a definition of a dirk or dagger and a definition of what constitutes a deadly weapon would ordinarily seem to be required. (See, People v. Caberera (1930) 104 Cal.App. 414, 417, 286 P. 176; People v. Iverson (1972) 26 Cal.App.3d 598, 603, 102 Cal.Rptr. 913, disapproved on another ground in In re Earley (1975) 14 Cal.3d 122, 130, fn. 11, 120 Cal.Rptr. 881, 534 P.2d 721.)

In this case, however, no prejudice occurred from the court's failure to instruct. This is because we have concluded that the weapon used was a dirk or dagger as a matter of law, and because it is undisputed that it was used to stab the victim. Its character as a deadly weapon is also clearly established.

We have examined the weapon in question. It consists of a piece of wire somewhat thicker than a coat hanger and slightly less than 8 1/2 inches in length. A shoe lace is would around the top 3 1/4 inches, approximately, so as to form, in effect, a handle. The wire itself is rigid and cannot be readily bent. It is almost straight; its appearance is that of a piece of metal which was originally twisted or curved and which has been pounded but not totally straightened out. While the sides are rounded the exposed point of the implement has been sharpened. In short, the device looks much like a home made ice pick. One of the jail guards who testified as a witness opined that it had been made from a bedspring.

'. . . 'A dagger has been defined as any straight knife to be worn on the person which is capable of inflicting death except what is commonly known as a 'pocket-knife.' Dirk and dagger are used synonymously and consist of any straight stabbing weapon, as a dirk, stiletto, etc. (Century Dict.) They may consist of any weapon fitted primarily for stabbing. The word dagger is a generic term covering the dirk, stiletto, poniard, etc. (Standard Dict.) They may consist of any weapon fitted primarily for stabbing. The word dagger is a generic term covering the dirk, stilletto, poniard, etc. (Standard Dict.) " (People v. Forrest (1967) 67 Cal.2d 478, 480, 62 Cal.Rptr. 766, 767, 432 P.2d 374, 375, quoting People v. Ruiz (1928) 88 Cal.App. 502, 504, 263 P. 836.)

Whether an implement is a dirk or a dagger may be a question of fact. (People v. Bain (1971) 5 Cal.3d 839, 850--851, 97 Cal.Rptr. 684, 489 P.2d 564.) In Bain a knife was 11 inches overall in length and had a 5 inch symmetrical blade with beveled but dull sides. It could be locked into position and had a hand guard on it. Since the knife was subject to being folded, and since a pocket-knife is not a dirk or dagger, the court held in Bain that a question of fact existed as to whether the knife was a dirk or dagger. In Forrest, supra, a weapon was held not to be a dirk or dagger as a matter of law because it was a folding knife which did not lock into place and therefore was not designed primarily for stabbing. In People v. Ruiz, supra, a bayonet, part of which had been filed off, was held to be a dirk or dagger within the meaning of the statute. In People v. Ferguson (1970), 7 Cal.App.3d 13, 19, 86 Cal.Rptr. 383, 387, the court referred to the principle 'that the test of a 'dirk or dagger' is its capability for use as a stabbing or cutting weapon.'

We are satisfied that the weapon used in the present case was designed and could be used for one purpose only--to stab. Thus, we hold that it was a dirk or dagger within the meaning of the statute, as a matter of law, and that the court's failure to define the term to the jury, if error, was not prejudicial.

A similar conclusion applies to the failure of the trial court to define deadly weapon. Whether a weapon is deadly is usually a question of fact. Such a weapon 'is one likely to produce death or great bodily injury . . .' (People v. Morlock (1956) 46 Cal.2d 141, 145, 292 P.2d 897, 900; People v. Helms (1966) 242 Cal.App.2d 476, 486, 51 Cal.Rptr. 484.) The instrument involved in this case was used to stab someone in the side. The victim was hospitalized as a result of its use. It is obviously a deadly weapon. (Cf. People v. Garcia (1969) 275 Cal.App.2d 517, 521, 79 Cal.Rptr. 833; see, People v. Graham (1969) 71 Cal.2d 303, 327--328, 78 Cal.Rptr. 217, 455 P.2d 153; People v. Raleigh (1932) 128 Cal.App. 105, 108, 16 P.2d 752.)

Given these circumstances '. . . (W)e cannot conclude that, under a proper instruction as to the meaning of deadly weapon, the jury could have reached any other conclusion than that the (dirk or dagger) was a deadly weapon.' (People v. Iverson, supra, 26 Cal.App.3d 598, 603, 102 Cal.Rptr. 913, 917.)

III. Other Instructional Problems

Each defendant complains that the court failed to instruct as to included offenses. Specifically, Gonzales argues that the court should have instructed on simple assault. It is clear that a court must instruct, Sua sponte, on included offenses when the evidence calls for such an instruction, at least if the possibility that the included offense actually occurred is more than 'abstruse.' (People v. Cooper (1968) 268 Cal.App.2d 34, 39, 73 Cal.Rptr. 608.) Here, however, there was no defense testimony and the testimony of the eyewitness, Curtis Louis, was that Cabral stabbed his brother. The victim testified at trial that he could not recall who stabbed him. His preliminary hearing testimony was that Cabral did it. The evidence also showed that the victim physically sustained stab wounds. Given this state of the evidence and our holding that the implement used in this fight was a deadly weapon as a matter of law, there was no evidence which would have supported the giving of an instruction on simple assault. Under such circumstances, there was no obligation to instruct on the lesser offense. (See, People v. Sedeno (1974) 10 Cal.3d 703, 715, 112 Cal.Rptr. 1, 518 P.2d 913; People v. Noah (1971) 5 Cal.3d 469, 479, 96 Cal.Rptr. 441, 487 P.2d 1009.)

Gonzales' guilt under the charge of assault with a deadly weapon is obviously that of an aider and abettor. The trial court gave CALJIC Instruction 3.00, modified as indicated.

'All persons concerned in the commission of a crime who either directly and actively commit the act constituting the offense or who knowingly and with criminal intent aid and abet in its commission whether present or not, are regarded by the law as principals in the crime thus committed and are equally guilty thereof.'

The court neglected to give CALJIC 3.01. ⁵ The authors of CALJIC state that 3.01 must be given Sua sponte if instruction 3.00 is given. As authority they cite People v. Ponce (1950), 96 Cal.App.2d 327, 215 P.2d 75, a...