People v. Ferguson

• Decision Date: 28 April 1970
• Docket Number: Cr. 14442
• Citation: 86 Cal.Rptr. 383,7 Cal.App.3d 13
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Felton FERGUSON, Defendant and Appellant.

Page 383

86 Cal.Rptr. 383

7 Cal.App.3d 13

The PEOPLE, Plaintiff and Respondent, v. Felton FERGUSON, Defendant and Appellant.

Cr. 14442.

Court of Appeal, Second District, Division 4, California.

April 28, 1970.

Hearing Denied June 24, 1970.

Donald F. Roeschke, Woodland Hills, under appointment by the Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Rose-Marie Gruenwald, Deputy Atty. Gen., for plaintiff and respondent.

FILES, Presiding Justice.

The defendant was found guilty, by jury verdict, of two counts of first degree burglary (Pen.Code, § 459). The information charged and the jury found that he had been armed with a deadly weapon, to wit, a butcher knife, at the times the offenses were committed. Probation was denied and defendant was sentenced to state prison. He appeals from the judgment.

Approximately 45 minutes before dawn on July 9, 1967, defendant, by forcing bedroom windows, entered two residences on South Hooper Street in Los Angeles belonging to the Page and Anderson families. He took a butcher knife from the kitchen of the Page house, the first house he entered, and kept it until the time of his arrest. Members of both families identified the defendant at the trial. Although the light was dim at that hour, the victims had sufficient opportunity to observe defendant. The police arrived shortly after the burglaries in response to a call by Mr. Page, and apprehended defendant after a short chase. His attempt to dispose of the butcher knife was unsuccessful.

After the officers had handcuffed defendant and placed him in their automobile, Mr. Page, who had been watching from his front porch, approached the vehicle, looked in, and recognized defendant as the man who had been in his house 10 minutes before. One of the officers asked if defendant was the right man, and Mr. Page said he was.

Defendant gave a different account of his actions that night, but the finding of the jury has resolved the factual issue against him.

Defendant first contends that the trial court should have sustained his objection to the testimony of Mr. Page upon the ground that the on-the-scene confrontation violated his right to counsel under the Wade-Gilbert rules. ¹ This issue was disposed of adversely to the defendant in People v. Colgain (1969) 276 A.C.A. 147, 154, 80 Cal.Rptr. 659, and People v. Levine (1969) 276 A.C.A. 251, 253, 80 Cal.Rptr. 731. We also note that this confrontation was not unnecessarily suggestive or otherwise unfair, so as to deprive the defendant of due process. (See People v. Floyd (1970) 1 Cal.3d 694, 714, 83 Cal.Rptr. 608, 464 P.2d 64.)

The second issue is whether it was proper to include in the judgment the recital that defendant was armed at the times of the commission of the offenses.

Penal Code, section 969c says:

'Whenever a defendant is armed with a firearm or other weapon under such circumstances as to bring said defendant within the operation of Section 3024 of the Penal Code relating to certain minimum penalties or of Section 12022 of the Penal Code, the fact that the defendant was so armed may be charged in the accusatory pleading.'

That section further provides that the question whether the defendant was armed as alleged must be tried by the jury which tries the issue of guilt. Penal Code, section 1213.5 requires that the abstract of judgment shall contain, among other things, 'A statement as to whether or not the defendant was armed with a deadly weapon or a concealed deadly weapon when that fact will affect his sentence.'

Both section 3024 and section 12022 prescribe punishment for those offenders to whom they apply.

In re Shull (1944) 23 Cal.2d 745, 146 P.2d 417 held that a defendant convicted of assault with a deadly weapon (a violation of Pen.Code, § 245) could not be subjected to the additional punishment prescribed in section 3024 and in section 3 of the Deadly Weapons Act (now Pen.Code, § 12022). The Supreme Court explained the statutes in these terms (at pp. 750--751, 146 P.2d at p. 419):

'It is not unreasonable to suppose that the Legislature believed that for felonies in which the use of a gun was not one of the essential factors, such as rape, larceny, and the like, an added penalty should be imposed by reason of the fact that the defendant being armed with such a weapon would probably be more dangerous because of the probability of death or physical injury being inflicted by the weapon. Hence, such a condition would be reasonable grounds for increasing the penalty where felonies are involved which do not include as a necessary element being armed with a pistol. The Legislature has by other acts imposed an increased punishment where the only additional factor, being armed with a deadly weapon, is present. The only difference between a simple assault and one with a deadly weapon is the latter factor. The commission of a simple assault is declared a misdemeanor * * *. When there is added to the assault the use of a deadly weapon the punishment is increased to imprisonment in the state prison * * *. Briefly, the Legislature has fixed the punishment for an assault where a deadly weapon is used, a particular crime, and it is not to be supposed that for the same offense without any additional factor existing the added punishment should be imposed. In felonies where a deadly weapon is not a factor in the offense, the additional punishment is imposed by section 3 of the Deadly Weapons Act, because of the additional factor of a deadly weapon being involved.'

In People v. Floyd (1969) 71 A.C. 918, 80 Cal.Rptr. 22, 457 P.2d 862, the Supreme Court, following the reasoning of the Shull opinion, held that a defendant convicted of first degree robbery, committed while he was armed with a deadly weapon, was not subject to the added punishment prescribed in section 12022. The court pointed out that the Legislature had prescribed a more severe punishment for first degree robbery than for second degree, and that the fact that the defendant was armed was the additional element which raised the offense to the higher degree. ² The court said (at p. 923, 80 Cal.Rptr. at p. 25, 457 P.2d at p. 865) that 'since the fact of being armed is essential to the conviction, sections 12022 and 3024 are inapplicable.'

The principle of the Shull case was also applied in People v. Lewis (1969) 274 A.C.A. 992, 1002, 79 Cal.Rptr. 650, where the appellate court struck the finding of armed in a first degree burglary case.

In the case at bench defendant was convicted of first degree burglary. ³ The elements which raise a burglary from second to first degree are, in the alternative, (1) an inhabited house in the nighttime, or (2) an armed burglar, or (3) an assault by the burglar. Each of the burglaries here was of an inhabited house in the nighttime. Hence it was first degree whether or not defendant was armed. The fact that defendant was armed was not one of the necessary elements of the offenses of which he was convicted. Thus the reasoning of the Shull and Floyd opinions does not forbid the application of section 12022 here. ⁴ (People v. Perryman (1967) 250 Cal.App.2d 813, 821, 58 Cal.Rptr. 921. ⁵ Since the burglary of an inhabited house at night was a felony 'in which the use of a (weapon) was not one of the essential factors * * * an added penalty should be imposed by reason of the fact that the defendant being armed with such a weapon would probably be more dangerous because of the probability of death or physical injury being inflicted by the weapon.' (In re Shull, Supra, 23 Cal.2d at p. 750, 146 P.2d at p. 419.)

The remaining question is whether the defendant was properly found to have been armed within the meaning of section 12022. That section as it read at the time here involved (1967) provided that any person who committed any felony 'while armed with any of the weapons mentioned in Section 12020' should receive an additional term of imprisonment. The only kind of weapon mentioned in section 12020 ⁶ which could be applicable is 'any dirk or dagger.'

The instrument which defendant carried on his person was an ordinary kitchen knife, having a wooden handle and a steel blade 8 inches long, with a point and one cutting edge.

In People v. Ruiz (1928) 88 Cal.App. 502, 263 P. 836 the court held that a bayonet, part of which had been filed off, was a 'dirk or dagger' within the meaning of the statute. The court said (at p. 504, 263 P. at p. 837):

'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.'

In People v. Syed Shah (1949) 91 Cal.App.2d 716, 205 P.2d 1081 a 7-inch spring blade knife was found to be a 'dirk or dagger.'

In People v. Grubb (1965) 63 Cal.2d 614, 47 Cal.Rptr. 772, 408 P.2d 100 the weapon was a part of a baseball bat, which was alleged to be a 'billy,' one of the...