Error and/or relief
The evidence presented at trial was insufficient to support a finding that the open beer can in this case was a deadly weapon. The conviction for assault with a deadly weapon is reversed.
First Holding:
We review a claim of insufficient evidence under the substantial evidence standard of review. The test is whether there is substantial evidence to support the conclusion of the trier of fact; it is not whether guilt is established beyond a reasonable doubt. Substantial evidence is evidence that is reasonable, credible and of solid value. We presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. It must clearly appear that on no hypothesis whatever is there sufficient substantial evidence to support the verdict.
Authority:
In re Ryan N. (2001) 92 Cal.App.4th 1359, 1372
People v. Kraft (2000) 23 Cal.4th 978, 1053
In re I.C. (2018) 4 Cal.5th 869, 892
People v. Manibusan (2013) 58 Cal.4th 40, 87
People v. Conners (2008) 168 Cal.App.4th 443, 453
Second Holding:
Objects may be deadly weapons as a matter of law, such as dirks and blackjacks, because the ordinary use for which they are designed establishes their character as such. On the other hand, pocket knives, canes, hammers and hatchets are not deemed deadly weapons per se.
Authority:
People v. Aguilar (1997) 16 Cal.4th 1023, 1029
People v. Graham (1969) 71 Cal.2d 303, 327, disapproved on other grounds by People v. Ray (1970) 14 Cal.3d 20
Third Holding:
Objects may be determined to be deadly weapons when used in a manner capable of producing and likely to produce great bodily injury. “Likely” means a high probability of occurring with a great probability of serious injury. Rolls of coins, batteries, and bicycle footrests have been determined to be deadly weapons when used in a manner capable of producing and likely to produce great bodily injury. No injury or even physical contact is required to support a conviction of assault with a deadly weapon because the focus is on the use of the weapon in a manner likely to produce great bodily injury.
Authority:
In re B.M. (2018) 6 Cal.5th 528, 533 [the manner of use must by capable of and likely to produce death or great bodily injury – two different concepts]
In re David V. (2010) 48 Cal.4th 23, 30 and fn. 5
People v. Aguilar (1997) 16 Cal.4th 1023, 1028
Fourth Holding:
The use of an object in a manner likely to produce death or great bodily injury requires more than a mere possibility that serious injury could have resulted from the way the object was used. Conjecture as to how the object could have been used is not permitted in the analysis. Rather, the determination of whether an object is a deadly weapon under section 245(a)(1) must rest on evidence of how the defendant actually used the object.
Authority:
In re B.M. (2018) 6 Cal.5th 528, 534
Fifth Holding:
If injury does occur, such injuries and their location are relevant in determining whether the object was used in a manner likely to produce great bodily injury. Great bodily injury means significant or substantial injury. Insignificant, trivial or moderate injury is not significant or substantial. Our inquiry is limited to whether substantial evidence supports the jury’s finding that the defendant used the open beer can as a deadly weapon, that is, in a manner capable of producing and likely to produce great bodily injury.
On this record, the defendant’s use of the beer can, tossed from six feet away in a slight overhand manner or with a slinging or flicking motion was not likely to cause serious bodily injury or death. The victim did not sustain great bodily injury, significant or substantial injury, or even anything greater than minor or moderate harm. There was little or no objective description of the can or its weight, and it was not introduced into evidence. There was no evidence of sharp or jagged edges on the can, other data points that would have been relevant to determining the likelihood of producing great bodily injury.
Without more details, it is speculation that the open beer can, used as it was, was capable of producing and likely to produce great bodily injury. Perhaps the beer can, if wielded differently, may have been likely to cause great bodily injury, but our inquiry is limited to how the beer can was actually used.
Authority:
In re Brandon T. (2011) 191 Cal.App.4th 1491, 1497
People v. Brown (2012) 210 Cal.App.4th 1, 7
People v. Quinonez (2020) 46 Cal.App.5th 457, 464
In re Manuel G. (1997) 16 Cal.4th 805, 822–825
People v. Hahn (1956) 147 Cal.App.2d 308, 309–310 [assault with a deadly weapon occurred when robbery victim driving a car was struck on the head four times with a beer can by passenger sitting behind him]
People v. Beasley (2003) 105 Cal.App.4th 1078, 1087, 1088 [bruises on arms and shoulders, without further injury, not great bodily injury]
In re Brandon T. (2011) 191 Cal.App.4th 1491, 1497 [small scratch on cheek not great bodily injury]
In re D.T. (2015) 237 Cal.App.4th 693, 696–697 [sharp pocketknife poked into the victim’s back likely to produce great bodily injury]
People v. Page (2004) 123 Cal.App.4th 1466, 1469, 1474 [sharp pencil held to the victim’s neck likely to produce great bodily injury]
People v. Duke (1985) 174 Cal.App.3d 296, 303
