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).
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. Malczweski 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.
Failure to Define "Dirk or Dagger" and "Deadly Weapon" in Instructions
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 eight and one-half inches in length. A shoe lace is wound around the top three and one-fourth 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
"... `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.)'" (People v. Forrest (1967) 67 Cal.2d 478, 480 [62 Cal.Rptr. 766, 432 P.2d 374], 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], 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.
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.)
Other Instructional Problems
or whether present or not, who advises and eneourages its commission, are regarded by the law as principals in the crime thus committed and are equally guilty thereof."
The court neglected to give CALJIC No. 3.01.
Other claimed instructional errors are raised by the parties. We have examined them and find them to be of no moment.
The Jury Panel Was Properly Chosen
It Was Error to Convict Cabral on Both Counts I And II
The People suggest accordingly that we should reverse Cabral's conviction under count I, and that he be sentenced pursuant to his conviction under count II. This is a suggestion which we will follow but, under the circumstances, a word of explanation is necessary. When we reverse count I and direct the trial court to conduct sentencing proceedings on count II the result is going to be that defendant will then be subject to the more severe penalties of section 4501 rather than the lesser penalties imposed for violation of section 245, subdivision (a).
Appellant's counsel, recognizing the problem, stated in his brief:
"Even though the appellant is only being punished for one of the two felonies, he receives a benefit from the deletion of one of the two convictions, since a felony conviction carries a potential for future harm in the form of another prior conviction.
"Nevertheless, it is not the purpose of the appeal, to secure possible future benefits at the expense of possibly exposing the appellant to a lengthier period of incarceration now. It is therefore requested that the court fashion its order in accordance with the above objectives."
But, we have concluded that he must face the likelihood of receiving the more severe sentence called for by section 4501. In People v. Massengale (1970) 10 Cal.App.3d 689 [89 Cal.Rptr. 237], defendants were properly convicted of violating two statutes but had been improperly punished by the trial court because under section 654 a single act and a single intent were involved. The court said:
"Had the trial court pronounced a proper sentence on count III, the remedy on appeal would be to vacate the sentence on count II and affirm the judgment in other respects (In re Wright, 65 Cal.2d 650 [56 Cal.Rptr. 110, 422 P.2d 998]). We cannot do that in this case because the sentences pronounced both under count I and under count III are unauthorized by law.
"Under count I, a violation of Penal Code section 518, the only sentence authorized by the Penal Code is imprisonment in the state prison for not less than one nor more than 10 years. (Pen. Code, § 520.) Thus the sentence of one year in the county jail, as given by the trial court, is improper.
"Under count III, for extorting a signature, section 522 prescribes the same punishment as if the money had been delivered, i.e., the punishment provided in section 520. The county jail sentence for this count also is unauthorized.
"When a court pronounces a sentence which is unauthorized by the Penal Code, that sentence must be vacated and a proper sentence imposed whenever the mistake is appropriately brought to the attention of the court. (See In re Sandel, 64 Cal.2d 412 [50 Cal.Rptr. 462, 412 P.2d 806] (illegal concurrent sentence for escape corrected to run consecutively);
"It should be noted that such a correction of the judgment is not a penalty imposed upon appellants because of their appeals. The rationale of People v. Henderson, 60 Cal.2d 482 [35 Cal.Rptr. 77, 386 P.2d 677], forbidding increased punishment after a reversal and second trial, does not apply. The correction in the judgments here would be required whenever the mistake was discovered, regardless of whether or not defendants had appealed.
"We are mindful that the trial court suspended execution of its sentences and granted probation to both defendants. Nothing we say here is intended to influence adversely the trial court's consideration of defendants' application for probation when they are again arraigned for judgment. The fact that defendants exercised their rights to challenge their convictions on appeal must play no part in the disposition made of their cases after remand. (Moon v. Maryland, 398 U.S. 319 [26 L.Ed.2d 262, 90 S.Ct. 1730]; North Carolina v. Pearce, 395 U.S. 711 [23 L.Ed.2d 656, 89 S.Ct. 2072].)" (People v. Massengale, supra, at pp. 692-693.)
We realize that it could be argued that when the trial court orders an erroneous sentence, the People's failure to appeal indicates acquiescence in the procedure. (People v. Burke (1956) 47 Cal.2d 45, 53-54 [301 P.2d 241].) The reasoning set forth in Massengale, however, and in the cases upon which defendant relies indicate that our course is to see that a proper sentence is imposed. Thus, in People v. Phillips, supra, 76 Cal.App.2d 515, the People moved in the appellate court to dismiss the appeal with directions to return the matter to the trial court for resentencing. The motion was denied as such. However, the court while affirming the judgment of conviction did remand the case to the trial court in order that a legal sentence might be imposed in lieu of the one there made. In People v. Serrato (1973) 9 Cal.3d 753, 764 [109 Cal.Rptr. 65,
Cabral argues that the trial judge stayed the imposition of the sentence on count II because of a desire to impose punishment on the offense which carried the lower minimum sentence. The record is ambiguous in this respect. At the time that it returned its verdict the jury requested that each defendant be given leniency on all counts. The court indicated that the type of leniency it intended to give in line with that recommendation was not to "sentence" Cabral as to prior offenses charged against him, which had been admitted to be true. Accordingly, it struck the prior convictions. But even if the court intended the sentence on count I as a form of leniency, it was "unauthorized leniency" subject to judicial correction. (People v. Serrato, supra, 9 Cal.3d 753, 762-763.)
The Evidence Is Insufficient to Sustain Cabral's Conviction on Count III
The People concede that the evidence fails to show that Cabral concealed the dirk or dagger on his own person. They urge, however, that he aided and abetted Gonzales in concealing it. Their argument is based on the fact that during the fight Cabral said something to Gonzales in Spanish and that 30 seconds thereafter Gonzales handed to Cabral the dirk or dagger which had been concealed in Gonzales' pocket.
There is simply no evidence to support any portion of this remarkable argument. Cabral's statement, in Spanish, to Gonzales during the fight could have ranged from "I am going to whip this guy" to "Call for a guard to stop the fight" to "Give me some help" to "Give me the knife which you hid in your pocket at my request so that I can use it to stab Louis." The latter speculation might support the conviction. The verdict cannot be upheld on the basis of such guesswork.
The judgment with respect to Gonzales is affirmed. With respect to Cabral the judgment is reversed insofar as it relates to the conviction of the offenses charged in counts I and III; the judgment of conviction is affirmed as to count II. The judgment is reversed insofar as it recites with respect to count II that imposition of sentence is permanently stayed. The matter is remanded to the trial court with directions to conduct sentencing proceedings on Cabral for count II, with full discretion in the trial court as to whether any sentence imposed should be consecutive to or concurrent with any other sentence Cabral was serving at the time of the conviction herein, and with full discretion as to granting or denying probation, within the confines, however, of Penal Code section 1203.
Ford, P.J., and Potter, J., concurred.
The petition of appellant Gonzales for a hearing by the Supreme Court was denied November 20, 1975.
"A person aids and abets the commission of a crime if he knowingly and with criminal intent aids, promotes, encourages or instigates by act or advice, or by act and advice, the commission of such crime."
"THE COURT: People vs. Ricardo Cabral and Daniel Gonzales.
"This is here for jury trial. Are there any motions to be made before the panel is brought in?
"MR. HAMEL: Yes, I think so, your Honor. That is the motion, the same motion, I think, that was made — actually it is almost stereotyped now — but the jury is not a true cross-section, the case that Judge Sherman Smith decided here within the month, I would imagine, and I can make that — if I can make that orally, just for the record —
"THE COURT: By stipulation?
"MR. HAMEL: I think so.
"THE COURT: All right. You may make the motion, yes.
"MR. GREEN: I join in the motion, your Honor.
"THE COURT: All right. Now, in order to set the record straight, it is stipulated that the Court may decide this on the same facts as presented in the case that you speak of, the name of which I don't have in mind now.
"MR. HAMEL: I don't either, offhand. We will get it and obtain it for the record.
"I think it is case No. A 277425, if I'm not mistaken, Harold Taylor, John Henry Bowman, and Ray Bordeaux.
"THE COURT: Both sides so stipulate?
"MR. MORSE: So stipulate for the People.
"MR. GREEN: So stipulate.
"THE COURT: The Court has read and considered that case and the facts therein stated. The motion is denied."