People v. Aguilar , 16 Cal. 4th 1023 ( 1997 )

MOSK, J., Concurring.

I write separately to clarify my understanding of the majority opinion.

Defendant was charged with and convicted of a violation of Penal Code section 245, subdivision (a)(1) (hereafter section 245(a)(1)), which punishes an assault committed either (1) with a “deadly weapon or instrument” other than a firearm or (2) by means of any “force likely to produce great bodily injury.”

In turn, a “deadly weapon or instrument” is either (1) a weapon that is deadly per se (e.g., a dagger) or (2) any “object, instrument, or weapon” that is used in a way likely to produce death or great bodily injury (e.g., a hammer). (People v. Graham (1969) 71 Cal.2d 303, 327-328 [78 Cal.Rptr. 217, 455 P.2d 153]; CALJIC No. 9.02.)

Reading this definition back into the statute, we find that section 245(a)(1) thus actually punishes an assault committed in any one of three ways: i.e., (1) with a weapon deadly per se, or (2) with an object used in a way likely to produce great bodily injury, or (3) by means of a force also likely to produce great bodily injury.

We deal here with an assault committed with hands or feet. The cases hold that an assault committed with hands or feet can constitute the third of the foregoing three ways of violating section 245(a)(1), i.e., by means of a force likely to produce great bodily injury. (See People v. Wingo (1975) 14 Cal.3d 169, 176 [121 Cal.Rptr. 97, 534 P.2d 1001], and cases cited.) I understand the majority now to hold that an assault committed with hands or feet cannot constitute either the first or second of these three ways of violating section 245(a)(1), i.e., with a weapon deadly per se or with an instrument used in a way likely to produce great bodily injury, because to convict on either theory the weapon or instrument must be an object extrinsic to the human body, which hands and feet are obviously not. I agree.

The prosecutor therefore erred in telling the jury that “Hands and feet can be deadly weapons . . . [i]f they are used in such a manner that it could cause . . . great bodily injury . . . Because of the compound structure of section 245(a)(1), however, I further agree with the majority that the error was nonprejudicial in this case. The majority stress that the prosecutor in effect told the jury it could not find defendant committed assault with a deadly weapon unless it found he used his hands or feet in a way likely to produce great bodily injury. The majority then reason that the same finding would also have supported a conviction of assault by means of a force likely to produce great bodily injury—the third way of violating section 245(a)(1)—which would not have been error.

The majority’s reasoning is premised on an unstated assumption, i.e., that (1) an object used in a way likely to produce great bodily injury and (2) a force likely to produce the same result are sufficiently equivalent to justify inferring that if the jury found one it would also have found the other. While this may not be true in every case, it is not an unreasonable assumption in the case at bar: Even though hands and feet are not objects extrinsic to the human body, their violent use in this case undoubtedly generated a force likely to produce great bodily injuiy.

With these understandings, I concur.

Kennard, J., concurred.