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Name: People v. Page
Case #: E035010
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 11/10/2004
Subsequent History: Revw. den. 1/26/05

Appellant and an accomplice robbed the victim while the accomplice held a sharp pencil to the victim’s neck and warned him not to come back with the police. Appellant was found guilty of robbery and assault with a deadly weapon. On appeal, he argued that there was insufficient evidence that the pencil was a deadly weapon, and the trial court erred by failing to instruct on simple assault as a lesser included offense. The appellate court rejected the arguments and affirmed. The pencil was used as a deadly weapon and on these facts, was a weapon as a matter of law. The closer question is whether there was sufficient evidence that what the accomplice did was an assault, an issue which is waived for failing to raise it. Since the jury could reasonably have found that the threat was not exclusively a conditional future threat, there was substantial evidence of an assault. Further, since the pencil was a deadly weapon as a matter of law, the trial court was not required to instruct on simple assault.