Opinion
B298606
07-30-2020
THE PEOPLE, Plaintiff and Respondent, v. HENRY ALBERTO DOMINGUEZ, Defendant and Appellant.
Melissa J. Kim, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, David E. Madeo and Nancy Lii Ladner, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA473166) APPEAL from an order of the Superior Court of Los Angeles County. Maame E. Frimpong, Judge. Affirmed. Melissa J. Kim, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, David E. Madeo and Nancy Lii Ladner, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant and appellant Henry Alberto Dominguez appeals from his conviction by jury of carrying a concealed weapon in violation of Penal Code section 21310. Defendant challenges the substantial concealment element of the charge, and argues it is not supported by substantial evidence. We conclude there is sufficient evidence demonstrating the knife was substantially concealed on his person consistent with the jury's findings. We therefore affirm.
FACTUAL AND PROCEDURAL SUMMARY
Defendant was charged with one count of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1); count 1) and one count of carrying a concealed dirk or dagger (§ 21310; count 2). Testimony at trial established the following facts material to our discussion.
On the afternoon of November 25, 2018, defendant was walking along Santee Alley in Los Angeles with his partner, his partner's cousin, and his two-year-old son. Jonatan Grandez was standing on the side of the street. Defendant and Mr. Grandez had previous run-ins with each other. After noticing Mr. Grandez, defendant lunged at him twice with a knife in hand, causing a small cut that bled a little bit but did not require medical attention. Mr. Grandez did not see the knife before defendant attacked him.
Lester Martinez, Sean Caro, and David Jouzi were working as plain clothes security officers on Santee Alley. Officer Martinez was working the private security job that day but is otherwise employed as an officer with the Los Angeles Police Department. Officers Caro and Jouzi are both retired law enforcement officers.
Officer Martinez testified he was about 15 feet away when Mr. Grandez and defendant engaged in their brief altercation. Officer Martinez saw defendant turn and walk away from Mr. Grandez and as he did so, he placed a knife, handle first, in his front right pocket.
Officer Martinez followed defendant and radioed his description to Officers Caro and Jouzi. Officer Martinez stopped defendant and told him he was a security officer and had seen the altercation. As he was talking to defendant about the incident, Officers Caro and Jouzi arrived and one of them motioned with hand signals that he could see a knife in defendant's pocket. Officer Martinez noticed that "about an inch" was sticking out of defendant's "front right pocket." Officer Caro testified he saw "two inches" of a blade protruding from defendant's "right front hip pocket." Officer Jouzi recalled seeing a portion of a "silver-gray" handle, not the blade, sticking out of defendant's pocket.
The officers handcuffed defendant for safety purposes and recovered the knife, which had a gray handle, a four-and-half-inch blade, and was about nine inches in total length. The officers then called the police and turned the matter over to them.
The jury found defendant guilty of carrying a concealed dirk or dagger and acquitted him of assault with a deadly weapon. Defendant was ordered to serve 58 days in county jail with a credit for 58 days of presentence custody credits. Defendant was placed on three years formal probation.
This appeal followed.
DISCUSSION
Defendant's sole contention is that there was insufficient evidence of the substantial concealment element of count 2. Defendant argues the evidence, viewed in totality, does not amount to substantial evidence such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.
We are not persuaded. We must review " 'the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable jury could find the defendant guilty beyond a reasonable doubt.' [Citation.]" (People v. Johnson (2015) 60 Cal.4th 966, 988.)
The prosecution's theory on count 2 was limited to the timeframe when the three security officers observed and detained defendant after the incident with Mr. Grandez. During that time, there is ample evidence the knife was substantially concealed. A knife is substantially concealed even when the tip or handle is showing. (People v. Wharton (1992) 5 Cal.App.4th 72, 75, superseded by statute on other grounds as stated in People v. Belloso (2019) 42 Cal.App.5th 647, 654, fn. 6.) The mere fact that some portion of the weapon was exposed does not make it any less a concealed weapon. (People v. Fuentes (1976) 64 Cal.App.3d 953, 955.)
Here, the evidence established the knife used was a large kitchen knife with a four-and-a-half-inch blade. Two of the officers saw, at most, two inches of the blade sticking out of defendant's pocket. The knife was otherwise covered and not in plain view.
There were some inconsistencies in the officers' testimony, mainly that Officer Jouzi thought he saw the handle end protruding, while Officers Martinez and Caro testified the blade end was exposed. Officer Jouzi also could not recall precisely from which pocket the knife was recovered. None of the inconsistencies undermine the jury's verdict. All three officers testified to seeing only one or two inches of the nine-inch knife protruding from defendant's pocket, and the trivial details whether the knife was concealed blade up or blade down, or in the right or left pocket, are irrelevant.
DISPOSITION
The judgment of conviction is affirmed.
GRIMES, J.
WE CONCUR:
BIGELOW, P. J.
WILEY, J.