There was sufficient evidence that defendant “used” the victim’s car as a deadly weapon when the defendant cut the brake lines because his willful act was likely to produce death or great bodily injury (GBI). The victim parked his car in the back of a fitness club where he was a member. He noticed a man sitting inside a van nearby. When he left the club, the victim saw pools of fluid underneath his car and found the brake lines had been cut. Surveillance videos showed the man sitting in his van (Marsh), doing something under the victim’s car. Marsh was convicted of assault with a deadly weapon (Pen. Code, § 245, subd. (a)) and suffered a finding that the deadly weapon was a vehicle (Veh. Code, § 13351.5). On appeal, Marsh argued he did not “use” the victim’s car in a manner likely to produce GBI or death. Held: Affirmed. Under 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. Despite not taking possession or control of the victim’s car himself, Marsh intentionally used the vehicle’s potential deadly properties in a way that was likely to cause the victim GBI; driving a vehicle without the ability to stop creates a situation in which the probability of serious injury is great. The fact the victim discovered the severed brake lines before driving his car, and thus avoided injury, is of no consequence because the statute focuses on what might have happened when defendant used a deadly weapon or instrument, not on what actually happened.

The trial court’s inclusion of alternative definitions of “deadly weapon” in its instruction to the jury was error, but harmless. In instructing the jury regarding the definition of deadly weapon, the trial court included two alternatives: that the object could be either inherently deadly or one that is used in such a way that it is capable of causing and likely to cause death or GBI. The first legal theory was not valid because a car (even one with severed brake lines) is not an inherently deadly weapon. However, here a motor vehicle with severed brake lines legally qualifies as a “deadly weapon other than a firearm.” In addition, neither the evidence nor the prosecutor’s argument invited the jury to reach a guilty verdict on the theory that the motor vehicle was inherently dangerous. Therefore, the court found it clear beyond a reasonable doubt that a rational jury would have rendered the same verdict absent the error.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/D074053.PDF