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Name: People v. Koback
Case #: E06667
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 06/27/2019

The evidence was sufficient to prove that defendant used car keys as a deadly weapon where he forcibly swung the ignition end of a key, gripped tightly in his fist, at the victim’s torso. After a customer reported seeing Koback steal a set of car keys from a rental car company, employees pursued him. Several times Koback warned the employees to back off or he would hurt them. As the employees closed in on him, Koback made a fist around the keys so that the ignition portion of a key was sticking out between his knuckles, and lunged at one of the employees, swinging the key at the victim’s torso. Koback was convicted of assault with a deadly weapon (ADW) and other offenses. On appeal, Koback argued the evidence was insufficient to prove that he used the keys in a manner that was likely to cause great bodily injury (GBI). In its initial opinion, the Court of Appeal affirmed. The California Supreme Court granted review and remanded the case with directions to vacate the opinion and reconsider the issue in light of In re B.M. (2018) 6 Cal.5th 528. Held: Affirmed. Under 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 GBI. Whether an instrument that is not inherently dangerous qualifies as a deadly weapon is a factual question. In In re B.M., the Court clarified the inquiry with respect to ADW when the object used is not an inherently deadly weapon: (1) the object must be used in a manner that is not only capable of producing but also likely to produce death or GBI, (2) the object was actually used as a deadly weapon, versus conjecture regarding how it could have been used as a deadly weapon, and (3) the extent of injury or lack of injury. Applying these principles, the majority concluded there was substantial evidence to support the ADW conviction. Based on the way Koback wielded the key, there was more than a possibility one of the employees would have suffered serious injury if Koback had succeeded in striking him. [Editor’s Note: The dissent disagreed with the majority’s conclusion that, based on In re B.M., “likely” meant only “more than a mere possibility,” and thus the dissent concluded the facts of how Koback used the car key insufficient to support a determination that death or serious injury was likely to result. The California Supreme Court denied a petition for review in this case, but Justices Liu and Groban were of the opinion it should be granted (case number S257265).]