Brief Bank # B-688 (Re: F 9.00 n6 [Can Assault With Hands Or Fists Be ADW].)
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COURT OF APPEAL FOR THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE OF THE STATE OF CALIFORNIA
Plaintiff and Respondent,
Santa Clara County
v. Superior Court
JOHN DOE AND RICHARD ROE,
Defendants and Appellants.
APPELLANT DOE’S OPENING BRIEF
Appeal from the Judgment of the Superior Court
of the State of California
in and for Santa Clara County
HONORABLE DIANE NORTHWAY, JUDGE, PRESIDING
MEREDITH J. WATTS, #78520
Attorney at Law
P.O. Box 14346
San Francisco, CA 94114
Attorney for Appellant
(Assisted by Sixth District Appellate Program)
APPELLANT’S CONVICTION FOR ASSAULT WITH A DEADLY WEAPON
OR BY FORCE LIKELY TO PRODUCE GREAT BODILY INJURY SHOULD
BE REVERSED BECAUSE THE COURT INSTRUCTED THE JURY ON
A LEGALLY INCORRECT THEORY
A. INTRODUCTION. In count one, appellant was charged under section 245 with assault with a deadly weapon or by force likely to produce great bodily injury. There was no evidence whatsoever that appellant used any weapon in assaulting Mr. T. There was conflicting evidence whether appellant participated in the beating by kicking Mr. T. The court instructed the jury that this charge could be proved in one of two ways: by proof of an assault by the use of a deadly weapon or instrument, or of an assault by means of force likely to produce great bodily injury. (RT 879.) In light of the alternatives preserved in the instruction, the prosecutor argued to the jury that the act of kicking or hitting Mr. T with hands or feet would constitute the use of “deadly weapons.” (RT 890.) Given that hands and feet do not qualify as deadly weapons, the court allowed the issue to go to the jury on an incorrect legal theory. Such a legal error is reversible per se. Furthermore, there is a substantial likelihood that the jury relied upon this incorrect legal theory in convicting appellant.
B. HANDS AND FEET ARE NOT “DEADLY WEAPONS” WITHIN THE MEANING OF SECTION 245. It is a principle of very long standing in California law that hands and fists alone may be sufficient to support a conviction of assault by means of force likely to produce great bodily injury. (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066; In re Nirran W. (1989) 207 Cal.App.3d 1157, 1161; People v. Wingo (1975) 14 Cal.3d 169, 176; People v. Chavez (1968) 268 Cal.App.2d 381, 384; People v. Zankich (1961) 189 Cal.App.2d 54, 70 — “It is thoroughly settled in this state that an assault by means of ‘force likely to produce great bodily injury’ [citation] may be made by the use of hands or fists.”)
However, counsel has found no case in which hands, fists, or feet were deemed “deadly weapons” for purposes of this section. (See People v. Nealis (1991) 232 Cal.App.3d Supp.1, Supp.4, fn. 2, which catalogues all sorts of instruments found to be deadly weapons in the manner and circumstances of their use, including dogs.) And, such a distinction is sensible; assault with a deadly weapon requires by definition the use of some “object, instrument or weapon.” There would be no need to craft an interpretation of “object, instrument, or weapon” to include fists or feet, because an assault with one’s body can be prosecuted under the second part of the statutory provision, if it is done with force sufficient to inflict great bodily harm.
Therefore, it was reversible error for the court to instruct the jury that the crime charged in this case could be proved by resorting to the first prong of the statute — use of a deadly weapon — when no weapon was employed, because such a theory was plainly incorrect as a matter of law. (People v. Guiton (1992) 4 Cal.4th 1116, 1128.)
C. IT IS LIKELY THAT THE JURY RELIED UPON THE ERRONEOUS THEORY TO CONVICT APPELLANT. First, the prosecutor made a point of arguing the incorrect theory:
MR. BERNAL (The prosecutor): . . . So we know we have the assault; we know we have Mr. T beaten with a deadly weapon or weapons or instruments, or with force likely to produce great bodily injury.
And we definitely have that, I’ll explain that in just a moment. Hands and feet can be deadly weapons, and you don’t have to be a black belt in karate, like sometimes you see on television. It’s the manner in which the hand or feet are used. if they are used in such a manner that it could cause, could cause great bodily injury, then those become dangerous weapons. (RT 890.)
Therefore, the jury was specifically invited to view appellant’s feet as deadly weapons.
Second, there is a substantial question whether appellant delivered a blow sufficient to cause severe bodily injury at all, as is argued at length below. However, under the instruction as give, the jury could have concluded, based solely upon Mr P’s testimony and the prosecutor’s argument, that the mere act of kicking Mr. T constituted the use of a “deadly weapon,” and therefore sufficient factual support for a conviction on count one.
In sum, the jury was instructed on a legally incorrect theory, and invited by the prosecutor to use it. Because it is impossible to show on this record that the jury did not rely upon this legally inadequate theory in convicting appellant on count one, reversal is required. (People v. Guiton, supra, 4 Cal.4th at 1128 — cases involving a legally inadequate theory subject to the rule generally requiring reversal, adopting the holding in Griffin v. United States (1991) 502 U.S.___, ___, 116 L.Ed.2d 371, 382-383 — “When, therefore, jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error.”)