People v. Villagren

• Decision Date: 09 June 1980
• Docket Number: Cr. 35888
• Citation: 165 Cal.Rptr. 470,106 Cal.App.3d 720
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Thomas VILLAGREN, Defendant and Appellant.

Page 470

165 Cal.Rptr. 470

106 Cal.App.3d 720

The PEOPLE of the State of California, Plaintiff and Respondent, v. Thomas VILLAGREN, Defendant and Appellant.

Cr. 35888.

Court of Appeal, Second District, Division 2, California.

June 9, 1980.

Hearing Denied Aug. 6, 1980.

Kenneth H. Lewis, Los Angeles, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., William R. Pounders and Sandy R. Kriegler, Deputy Attys. Gen., for plaintiff and respondent.

BEACH, Associate Justice.

After a jury had found appellant guilty of three counts of assault with a deadly weapon (Pen.Code, § 245, subd. (a)) and one count of carrying a concealed dirk or dagger (Pen.Code, § 12020, subd. (a)), the trial court sentenced appellant to state prison. Appellant appeals from the judgment of conviction. He contends that the trial court erred in allowing the prosecution, after the jury had been selected, to amend the information to allege a count of carrying a concealed dirk or dagger. He also attacks the sufficiency of the evidence supporting his convictions on all four counts, and further claims reversible error based on juror misconduct. For reasons which shall be explained below, we reject each of these contentions and affirm the judgment.

FACTS :

Presuming in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence, as we must (People v. Henderson (1977) 19 Cal.3d 86, 97, 137 Cal.Rptr. 1, 560 P.2d 1180; People v. Mosher (1969) 1 Cal.3d 379, 395, 82 Cal.Rptr. 379, 461 P.2d 659), the relevant facts adduced at trial are as follows: At approximately 12:30 a. m. on November 19, 1978, a group of six people, including appellant, entered the "Round Robin" bar in Glendale. They all wore jackets with emblems indicating their membership in the "Warlocks" motorcycle club, in violation of the bar's dress code. When Jerry Fredericks, employed as a bouncer at the bar, asked the Warlocks members to take off their jackets, one of them replied: "Yeah, when I'm good and ready. I'm going to finish my beer." Shortly thereafter, the group left the bar but returned a couple of minutes later. Someone in the group then hit an unidentified individual over the head with a beer bottle. In the ensuing fight, another member of the group hit Jerry Fredericks, the bouncer, in the face and stomach. Raymon Delgado, a patron, came to Fredericks' rescue and over-powered his assailant, only to be stabbed in the side by appellant moments later. Thereafter, Raul Deanda, another patron, saw appellant hit Ramos Sprein, the bar owner's son, in the stomach. As appellant withdrew his hand, Deanda observed a knife in appellant's hand. When Joe Sprein, the bar owner, tried to come to his son's aid, appellant came at the older Sprein with the knife. In an effort to pull the older Sprein away, Deanda was stabbed in the hand by appellant.

While on patrol at 1:45 a. m. near the "Round Robin" bar, Officer Cooper of the Glendale Police Department was "hailed down" by Delgado who was standing outside the bar. Delgado, who was bleeding, pointed to appellant, who was walking away from the bar, and said he was the man who had just stabbed him. Appellant ignored the officer's order to stop. While appellant continued walking towards the rear of the bar's parking lot, the officer saw appellant throw an object, later identified as a blood-stained knife. Assisted by two other officers, Officer Cooper apprehended appellant minutes later. When appellant removed his jacket during the booking process, Officer Cooper observed an empty knife sheath on the right-hand side of appellant's belt.

DISCUSSION :

1. Amendment of Information

After a jury had been selected, the trial court allowed the prosecution to amend the information to allege a count of carrying a concealed dirk or dagger. This, appellant claims, was error because it was not supported by evidence introduced at his preliminary hearing.

Penal Code section 1009 permits an amendment to an information to add another offense shown by the evidence at the preliminary hearing. (People v. Hall (1979) 95 Cal.App.3d 299, 314, 157 Cal.Rptr. 107; People v. Spencer (1972) 22 Cal.App.3d 786, 799, 99 Cal.Rptr. 681; Patterson v. Municipal Court (1971) 17 Cal.App.3d 84, 88, 94 Cal.Rptr. 449.) This has been held not to violate a defendant's constitutional rights. (People v. Tallman (1945) 27 Cal.2d 209, 213, 163 P.2d 857.) An amendment to the information may be made as late as the close of trial if no prejudice is shown. (People v. Witt (1975) 53 Cal.App.3d 154, 165, 125 Cal.Rptr. 653.) Whether or not to allow an amendment is within the trial court's discretion, and its ruling will not be reversed absent an abuse of discretion. (Ibid.; People v. Flowers (1971) 14 Cal.App.3d 1017, 1020, 92 Cal.Rptr. 647.)

The transcript of the preliminary hearing, which has been made a part of the record on appeal, shows that stabbing victims Delgado and Deanda saw a knife in appellant's hand. Thus there was ample evidence adduced at the preliminary hearing of appellant's possession of a knife. The remaining question is whether it was concealed. Nothing in the testimony of Delgado, who appears to have been the first stabbing victim in the fight, indicates that he saw a knife in appellant's hand when appellant came at him. Not until after he had been stabbed did Delgado observe a knife in appellant's hand. Deanda, who witnessed the assault on Delgado, stated merely that he saw appellant punch Delgado in the rib cage; he said nothing about seeing a knife in appellant's hand. All Deanda saw just before the assault on Delgado was a "shank guard," described as a container to hold a knife, on appellant's person. It was only after the incident with Delgado, when appellant went for the younger Sprein, son of bar owner Joe Sprein, that Deanda observed appellant with "a blade in his hand." The evidence at the preliminary hearing thus indicated that the knife was concealed on appellant's person prior to the stabbing. Under the circumstances, the trial court did not abuse its discretion in permitting the information to be amended by adding a charge of a violation of Penal Code section 12020, subdivision (a), prohibiting the carrying of a concealed dirk or dagger. (People v. Tallman, supra, 27 Cal.2d 209, 214, 163 P.2d 857.)

2. Whether Appellant's Knife Was a Dirk or Dagger Within the Meaning of Penal Code Section 12020

Appellant argues that his conviction for possession of a concealed "dirk or dagger" was improper because the knife he carried was not a "dirk or dagger" within the meaning of section 12020 of the Penal Code.

There is no precise statutory definition of a dirk or dagger. In attempting to define "dirk or dagger", the court in Bills v. Superior Court (1978) 86 Cal.App.3d 855, 859, 150 Cal.Rptr. 582, 584 noted: "In six appellate decisions we find this quote: '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.' " (Citations omitted.)

Not every knife is a dirk or dagger. That determination may be a question of fact for the jury to determine (People v. Bain (1971) 5 Cal.3d 839, 851, 97 Cal.Rptr. 684, 489 P.2d 564; People v. Cabral (1975) 51 Cal.App.3d 707, 712, 124 Cal.Rptr. 418.) Bain involved a folding knife with a pointed five-inch-long blade with dull beveled sides that could be locked into position when opened manually. Because the knife could be folded, and because a pocket-knife is not considered a dirk or dagger, the Bain court held it to be a close question of fact whether the knife was a dirk or dagger. In People v. Ferguson (1970) 7 Cal.App.3d 13, 86 Cal.Rptr. 383, the defendant carried an ordinary kitchen knife, having a wooden handle and a steel blade eight inches long, with a point and one cutting edge. (Id. at p. 18, 86 Cal.Rptr. 383.) The Ferguson court reasoned that because the butcher knife had the characteristics of a stabbing and cutting weapon, it was properly left for the jury to determine whether it was a dirk or dagger. (Id. at p. 19, 86 Cal.Rptr. 383.)

In contrast, in People v. Forrest (1967) 67 Cal.2d 478, 62 Cal.Rptr. 766, 432 P.2d 374, it was held that an oversized two-bladed pocket-knife was not a dirk or dagger as a matter of law because the blades did not lock into place, thus severely limiting its effectiveness as a stabbing instrument. And in Bills v. Superior Court supra, 86 Cal.App.3d 855, 862, 150 Cal.Rptr. 582, 586, the court concluded that a pair of ordinary unaltered barber scissors could not be deemed a "dirk or dagger" because scissors, not having been designed as weapons but only for use as a cutting tool, "are not primarily fitted as a stabbing instrument." The Bills court recognized that a pair of barber scissors can be used as a stabbing weapon and as such could inflict a fatal wound. However, as the court emphasized in Bills, "a pair of barber scissors as constructed" (emphasis added) does not have the characteristics of a stabbing weapon. (Id. at p. 860, 150 Cal.Rptr. at p. 584.)

Thus, as illustrated by the case discussed above, depending on their characteristics and capabilities for stabbing and cutting, some objects present a question of fact for a jury as to whether they are a "dirk or dagger", whereas others are considered a "dirk or dagger" as a matter of law.

Here, Officer Cooper described the instrument he recovered following the stabbings as a "hunting knife." We have viewed the knife. The knife has a 33/4 inch- long steel handle and a 43/8 inch-long relatively straight blade,...