There was sufficient evidence that appellant used a sidewalk as a deadly weapon in violation of Penal Code section 245, assault with a deadly weapon. Appellant punched the victim in the eye, who fell to the sidewalk. While the victim was down, appellant stomped on the victim’s head such that the sidewalk effectively became one side of a vice with the minor’s foot on the other side. The court rejected appellant’s argument that he had not “used” the sidewalk. An assailant can intentionally take advantage of an object’s intrinsic qualities in a way likely to cause a victim great bodily harm without taking possession or control of the object. Substantial evidence supported the assault with a deadly weapon charge.
One count for assault with a deadly weapon and a separate count for assault with force likely to produce great bodily injury were both supported by sufficient evidence, but the petition could not be sustained on more than one count for a single incident of aggravated assault under Penal Code section 245. The juvenile court sustained a petition charging appellant with assault with a deadly weapon (ADW) and assault with force likely to produce great bodily injury (GBI) based on a single incident. Penal Code section 245 defines only one offense, ADW or assault with force likely to produce GBI. Here, the petition could not be sustained on more than one count for a single incident of aggravated assault under Penal Code section 245. The court reversed the GBI assault count, which is not necessarily a serious felony, and not the ADW count, which is a serious felony, because the crime was more appropriately treated as an ADW. There was no good reason to allow appellant to receive the lesser sanction simply because his conduct was criminal under two different theories.
Appellant, a minor, was not in custody for purposes of Miranda when he gave a statement to a police officer investigating the assault after appellant’s mother invited the officer into the family home to speak with her and her son about the incident. Based on the totality of the circumstances, a reasonable person in appellant’s position would not have felt that he was in custody for purposes of Miranda. Appellant was interviewed in his home and the focus of the inquiry was still in the investigative stage. There were no objective indicia of arrest because appellant was not restrained and he was not handcuffed. Appellant’s mother invited the officer into the house and appellant was surrounded by his mother and other people who were close to him during the interview. Nothing in the questioning suggested that it was prolonged or aggressive.
It was error for the court to set a maximum time of commitment when the minor was not removed from his parent’s custody. Welfare and Institutions Code section 726, subdivision (c) requires calculation of the maximum time that could be imposed on an adult convicted of the same offenses if the minor is removed from the physical custody of parents. Here, appellant was placed at his home on probation. The juvenile court stated the maximum term of confinement was included for “recordkeeping” purposes but the Court of Appeal did not discern any recordkeeping function that was served. The time was stricken from the minute order.