A Butter Knife Was Not a Deadly Weapon Because the Defendant Did Not Use It in a Manner “Capable of” And “Likely to Produce” Death or Great Bodily Injury
April 19th, 2020

In order “for an object to qualify as a deadly weapon based on how it was used, [and demonstrate the commission of an assault with a deadly weapon,] the defendant must have used the object in a manner not only capable of producing but also likely to produce death or great bodily injury.”  (Original emphasis.)  Speculation “as to how the object could have been used or what injury might have been inflicted if the object had been used differently is not appropriate.”  The evidence failed to demonstrate the knife the minor used to assault her sister was a deadly weapon as a matter of law because it was only a butter knife, “was not sharp and [only] had slight ridges on one edge of the blade”; the minor “used the knife only on [her sister’s] legs, which were covered with a blanket”; and “the moderate pressure that [the minor] applied with the knife was insufficient to pierce the blanket, much less cause serious bodily injury….” (In re B.M. (2018) 6 Cal.5th 528, 530.)

“We hold, consistent with settled principles, that for an object to qualify as a deadly weapon based on how it was used, the defendant must have used the object in a manner not only capable of producing but also likely to produce death or great bodily injury. The extent of any damage done to the object and the extent of any bodily injuries caused by the object are appropriate considerations in the fact-specific inquiry required by Penal Code section 245(a)(1). But speculation without record support as to how the object could have been used or what injury might have been inflicted if the object had been used differently is not appropriate. We conclude that the evidence here was insufficient to sustain a finding that the knife at issue was used as a deadly weapon, and we accordingly reverse the Court of Appeal’s judgment.” (Ibid.)


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