People v. B.M. (In Re B.M.)

Filed 4/20/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
In re B.M., a Person Coming 2d Juv. No. B277076
Under the Juvenile Court Law. (Super. Ct. No. 2016025026)
(Ventura County)
THE PEOPLE,
Plaintiff and Respondent,
v.
B.M.,
Defendant and Appellant.
A common butter knife is designed to cut and spread
butter. In the hand of a person bent on assaulting another, it
may be a useful tool to inflict great bodily injury. Consistent with
an express direction from the California Supreme Court (People
v. McCoy (1944) 25 Cal.2d l77, l88-189) and time-honored rules
on appeal, we conclude that the trial court’s factual finding that
the instant butter knife was a deadly weapon must be affirmed
on appeal. To the extent that In re Brandon T. (2011) 191
Cal. App. 4th 1491 holds to the contrary, we respectfully disagree.
As we shall explain, an assault with a deadly weapon
is complete when the defendant, with the requisite intent, uses
an object in a manner which is capable of producing great bodily
injury upon the victim. Such an assault is not negated by 1. the
victim’s use of a shield or body armor to prevent injury; or 2.
ineptness or poor aim in the use of the object; or 3. lack of
success in inflicting great bodily injury.
B.M. appeals from a juvenile court order declaring
her a ward of the court and ordering her to serve 90 days in a
juvenile justice facility. After a contested jurisdictional hearing,
the court sustained a petition charging that appellant committed
a felony assault with a deadly weapon (a knife) in violation of
Penal Code section 245, subdivision (a)(1).
Relying on Miranda v. Arizona (1966) 384 U.S. 436
(Miranda), appellant contends the juvenile court erroneously
admitted statements she made to the police. She also contends
that the evidence is insufficient to support the finding that the
knife she used was a deadly weapon. These contentions are
without merit and we affirm.
Facts
Appellant, seventeen years old, was angry because
she could not get inside the family home. Her mother had
changed the locks to the house. She entered the house through a
window and went into her sister’s (S.M.) bedroom. She tried to
pull S.M.’s hair out, threw a telephone at her, and left the room.1
1
This uncharged assault shows that appellant intended to
use any object available to harm her sister. In theory, throwing a
telephone at another person with the requisite intent can be an
assault with a deadly weapon. (See People v. Cordero (1949) 92
Cal. App. 2d 196, 199 [beer bottle as a club or a missile].)
2
She returned carrying “a small . . . knife, like a butter knife.” It
was “[t]he type of knife that you would use to butter a piece of
toast.” The knife was metal and about six inches long. The blade
was about three inches long. “It wasn’t . . . sharp” and had “small
ridges” along one side.
S.M. was lying on her back on a bed when appellant
attacked her with the knife. She covered herself with a blanket
for protection. The knife struck the blanket near her legs a “few
times.” Through the blanket, S.M. felt pressure from the knife.
On a scale of one to ten with one being the least amount of
pressure, the pressure was “[m]aybe like a five or a six.” Instead
of “pok[ing]” S.M. with the knife, appellant made a “slicing kind
of” motion.
Appellant was “yelling” at S.M. who was terrified by
the attack. When appellant left the bedroom, S.M. telephoned
the police. The recording of her frantic call for help to the 911
operator was received by the juvenile court.
In response to the telephone call, Officer Ryan
Reynosa drove to S.M.’s residence. On the way there, he was
given a description and the name of the suspect. He saw
appellant outside the residence “and asked her if her name was
[B.M.].” Appellant replied, “Yes.” Officer Reynosa testified, “I
then asked her to walk over towards me and sit against the
bumper by my marked patrol vehicle so I could talk to her about
what had happened.” Appellant complied with his request.
Officer Reynosa told appellant that he “had gotten a
call of a fight inside the house and [he] asked her what . . .
happened.” Appellant explained as follows: she arrived at the
Appellant also assaulted another sister giving her a bloody
nose.
3
residence and had been unable to open the front door with her
key. She believed that S.M. had rekeyed the lock. Appellant
entered the residence through an unlocked window. She was
“very upset.” Appellant “grabbed . . . what she described as a
butter knife off of the kitchen counter and went upstairs to
confront her sister [S.M.].” Upon entering her sister’s bedroom,
appellant “began yelling at [S.M.] . . . and . . . was holding the
butter knife in her right hand and was pointing it at S.M.” When
S.M. told her to get out and threatened to call the police,
appellant made “downward stabbing motion[s]” toward “the
bedding . . . that S.M. had pulled up over her.” Appellant’s intent
was “to scare S.M.” Appellant “then ran back downstairs and put
the knife in the kitchen sink.”
Appellant testified as follows: She had been living at
the residence for two weeks. After entering the residence
through a window, she grabbed a butter knife in “the heat of the
moment.” She “wanted to scare [S.M.].” While holding the knife,
she approached S.M., who was sitting on her bed. Appellant was
“yelling at her and cussing at her and telling her, . . . ‘why did
you . . . change the locks?’” When appellant “got close . . . with
the knife, [S.M.] covered herself with the blanket and started
kicking her legs.” Appellant was “pretty sure [the knife] probably
did touch the blanket[] because [S.M.] was kicking it, and
[appellant] was right there, like, touching the bed.” The part of
the knife that touched the blanket was the blade - “[t]he part
where you would . . . cut . . . toast and stuff.”
Alleged Miranda Violation
Appellant claims that her “constitutional rights were
violated” because Officer Reynosa did not inform her of “her
Miranda rights before detaining and questioning her.” Based on
4
the alleged Miranda violation, appellant moved to exclude her
statements to Officer Reynosa. The juvenile court denied the
motion. It found that appellant was not subjected to custodial
interrogation.
“We apply a de novo standard of review to a trial
court’s denial of a motion to suppress [sic, exclude] under
Miranda insofar as the trial court’s underlying decision entails a
measurement of [as here] undisputed facts against the law.”
(People v. Riva (2003) 112 Cal. App. 4th 981, 988.)
“It is settled that Miranda advisements are required
only when a person is subjected to ‘custodial interrogation.’
[Citations.]” (People v. Davidson (2013) 221 Cal. App. 4th 966,
970.) “An interrogation is custodial when ‘a person has been
taken into custody or otherwise deprived of his freedom of action
in any significant way.’ [Citation.] The test for Miranda custody
is, ‘“would a reasonable person have felt he or she was not at
liberty to terminate the interrogation and leave.”’ [Citation.]
The objective circumstances of the interrogation are examined,
not the ‘“subjective views harbored by either the interrogating
officers or the person being questioned.”’ [Citation.]” (People v.
Kopatz (2015) 61 Cal. 4th 62, 80.)
In determining whether a person was subjected to
custodial interrogation, “[t]he totality of the circumstances is
considered and includes ‘(1) whether the suspect has been
formally arrested; (2) absent formal arrest, the length of the
detention; (3) the location; (4) the ratio of officers to suspects; and
(5) the demeanor of the officer, including the nature of the
questioning.’ [Citation.] Additional factors are whether the
officer informed the person he or she was considered a witness or
suspect, whether there were restrictions on the suspect’s freedom
5
of movement, whether the police were aggressive,
confrontational, and/or accusatory, and whether the police used
interrogation techniques to pressure the suspect. [Citation.]”
(People v. Davidson, supra, 221 Cal.App.4th at p. 972.)
Based on the “totality of the circumstances,” we
conclude that appellant was not subjected to custodial
interrogation. Officer Reynosa did not place her under arrest or
handcuff her. He was the only officer present. The detention was
not prolonged and occurred in a noncoercive atmosphere outside
appellant’s residence. Officer Reynosa’s questioning was not
aggressive, confrontational, or accusatory. He simply told her
that he “had gotten a call of a fight inside the house and [he]
asked her what . . . happened.” Reynosa did not use interrogation
techniques to pressure appellant. He testified, “She was just
telling me what happened.” “[A] reasonable person in
[appellant’s] situation would have believed [s]he was free to leave
at any time and to terminate the interview. . . . The [juvenile]
court correctly denied [appellant’s] motion to suppress [sic,
exclude] the interview.” (People v. Kopatz, supra, 61 Cal.4th at p.
82.)
Sufficiency of the Evidence
“The same standard governs review of the sufficiency
of evidence in adult criminal cases and juvenile cases . . . .” (In re
Matthew A. (2008) 165 Cal. App. 4th 537, 540.) “In reviewing a
criminal conviction challenged as lacking evidentiary support,
‘“the court must review the whole record in the light most
favorable to the judgment below to determine whether it discloses
substantial evidence—that is, evidence which is reasonable,
credible, and of solid value—such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.”’
6
[Citation.]” (People v. Maury (2003) 30 Cal. 4th 342, 396.) “‘A
finding . . . based upon a reasonable inference . . . will not be set
aside by an appellate court unless it appears that the inference
was wholly irreconcilable with the evidence. [Citations.]’
. . . ‘[W]hen the evidence gives rise to conflicting reasonable
inferences, one of which supports the finding of the trial court,
the trial court’s finding is conclusive on appeal. [Citation.]’
[Citations.]” (Phillips v. Campbell (2016) 2 Cal.App.5th 844,
851; see also Denham v. Superior Court (1970) 2 Cal. 3d 557, 564.)
“As used in [Penal Code] section 245, subdivision
(a)(1), a ‘deadly weapon’ is ‘any object, instrument, or weapon
which is used in such a manner as to be capable of producing and
likely to produce, death or great bodily injury.’ [Citation.] Some
few objects, such as dirks and blackjacks, have been held to be
deadly weapons as a matter of law; the ordinary use for which
they are designed establishes their character as such. [Citation.]
Other objects, while not deadly per se, may be used, under
certain circumstances, in a manner likely to produce death or
great bodily injury. In determining whether an object not
inherently deadly or dangerous is used as such, the trier of fact
may consider the nature of the object, the manner in which it is
used, and all other facts relevant to the issue. [Citations.]”
(People v. Aguilar (1997) 16 Cal. 4th 1023, 1028-1029.)
The issue is whether a reasonable trier of fact could
find beyond a reasonable doubt that appellant used the butter
knife “‘in such a manner as to be capable of producing and likely
to produce, death or great bodily injury.’” (People v. Aguilar,
supra, 16 Cal.4th at pp. 1028-1029.) We conclude that a
reasonable trier of fact could and did make the requisite finding.
7
Why does a person who assaults another person pick
up an object to do so? The answer is apparent: to do greater
harm than can be done with fists or feet. The victim of an assault
with an object apprehends a greater degree of danger than a
victim who is not assaulted with an object. The use of an object
in an assault increases the likelihood of great bodily injury. In
this instance, the Legislature has provided for greater
punishment for the would-be assailant who utilizes an object in
such a manner as to be “capable” of producing great bodily
injury.2
Here, sitting as trier of fact, and utilizing the power
and ability to draw inferences from the evidence, the trial court
concluded that the six-inch metal butter knife could be used to
slice or stab, even though it was not designed for such. It was
used in a manner “capable” of producing great bodily injury. This
factual finding is not “wholly irreconcilable” with the evidence.
(Phillips v. Campbell, supra, 2 Cal.App.5th at p. 851.) This
appeal “turns” on this factual finding.
It matters not that the victim was able to fend off
great bodily injury with her blanket. This self defense does not
negate appellant’s assault. Similarly, that appellant was not
adept at using a knife does not inure to her benefit. She could
have easily inflicted great bodily injury with this metal butter
2
There is a historical exception to this observation. When
Abraham Lincoln was accosted by a detractor, his bodyguard of
tremendous physical strength, Ward Hill Lamon, knocked the
assailant unconscious. He did this with a single blow to the head
with his fist. Lincoln reportedly told Lamon that in the future,
he should give the victim a chance: “Hereafter, when you have
occasion to strike a man, don’t hit him with your fist! Strike him
with a club or crowbar or something that won’t kill him.”
8
knife and just as easily have committed mayhem upon the
victim’s face. The trial court expressly found that it was only
“lucky” that there were no injuries.
In People v. McCoy, supra, 25 Cal. 2d 177, our
Supreme Court quoted with approval the Court of Appeal opinion
in People v. Raleigh (1932) 128 Cal. App. 105, which said, “When
it appears . . . that [such] an instrumentality . . . is capable of
being used in a ‘dangerous or deadly’ manner, and it may be
fairly inferred from the evidence that its possessor intended on a
particular occasion to use it as a weapon should the
circumstances require, we believe that its character as a
‘dangerous or deadly weapon’ may be thus established, at least
for the purposes of that occasion.” (Id. at pp. 108-109; see also
People v. Graham (1969) 71 Cal. 2d 303, 328.)
As indicated, we part company with the opinion of In
re Brandon T., supra, 191 Cal. App. 4th 1491. The attorney
general submits, and we agree, that this case was “wrongly
decided.” This opinion has the earmarks of impermissible
reweighing of the evidence. There, the appellate court drew
inferences away from the factual finding under review. The
defendant slashed at the victim’s face and neck with a butter
knife and used sufficient force to break the knife. (Id. at p. 1497.)
Even from the bare recital of facts, it is apparent that the butter
knife was “used in a manner so as to be capable” of producing
great bodily injury. That it broke during the assault preventing
further stabbing should not inure to the defendant’s benefit. The
brutality of the attack in In re Brandon T. should not be
minimized with hindsight.
The extent of the injuries, or lack of them, is relevant
but not determinative. (People v. Aguilar, supra, 16 Cal.4th at p.
9
1028.) The In re Brandon T. opinion gives undue emphasis to
the lack of injuries. The fallacy of this focus is easily shown by
the typical assault with a deadly weapon with a firearm when the
defendant has poor aim. (See, e.g., People v. Bradford (1976) 17
Cal. 3d 8, 20.)
Disposition
The orders appealed from are affirmed.
CERTIFIED FOR PUBLICATION.
YEGAN, Acting P. J.
We concur:
PERREN, J.
TANGEMAN, J.
10
Brian J. Back, Judge
Superior Court County of Ventura
______________________________
Donna Ford, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Senior
Assistant Attorney General, Susan Sullivan Pithey, Supervising
Deputy Attorney General, Michael J. Wise, Deputy Attorney
General, for Plaintiff and Respondent.