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Name: In re Brandon T.
Case #: B220588
Court: CA Court of Appeal
District 2 DCA
Division: 1
Opinion Date: 01/24/2011
Summary

In determining if an object not deemed a deadly weapon as a matter of law constitutes a deadly weapon for the purpose of Penal Code section 245, subdivision (a)(1), the trier of fact may consider the nature of the object and the manner in which it is used. Brandon and another student, Deon, argued during class. Outside the classroom, Deon was approached by Brandon and two other males. The two other males held Deon to the ground while Brandon stood over him with a butter knife. Brandon touched Deon’s face with the knife and tried to cut him but the knife broke. Deon had a slight scratch on his face. The appellate court found that the evidence was insufficient to sustain the petition alleging Penal Code section 245, subdivision (a)(1). Objects which are not per se deadly weapons may be found to be so if used in a manner likely to produce death or great bodily injury. (People v. Aguilar (1997) 16 Cal.4th 1023.) Here, the parties agreed that this butter knife was not a deadly weapon as a matter of law. The appellate court found that as it was used, it was not capable of producing death or great bodily injury. The pressure Brandon used was not enough to cause death or great bodily injury, but it was too much pressure for the knife to bear and the handle broke. Thus, it was not capable of being used as intended. Accordingly, the adjudication order was modified to reflect a true finding on simple assault, a lesser included offense of section 245, subdivision (a)(1).