Can a butter knife with a rounded end and a serrated edge qualify as a deadly or dangerous weapon under Penal Code section 245, subdivision (a)(1)?

Held: Insufficient evidence supported juvenile court’s finding that minor violated Penal Code section 245, subdivision (a)(1) because there was no substantial evidence the minor’s use of a butter knife was likely to cause great bodily injury. The juvenile court found B.M. violated section 245, subdivision (a)(1) after she used a butter knife against her sister’s legs, which were under a blanket. The Court of Appeal affirmed, finding B.M. could have inflicted great bodily injury (GBI) or committed mayhem upon her sister’s face. Review was granted. Held: Reversed. Section 245, subdivision (a)(1) prohibits assaulting another person with a deadly weapon or instrument other than a firearm. An object alleged to be a deadly weapon must be used in a manner that is not only “capable of producing” but also “likely to produce death or great bodily injury.” Although some objects are dangerous weapons as a matter of law, a knife is not. The court analyzed People v. Aguilar (1997) 16 Cal.4th 1023 and explained that the trier of fact may consider the following when determining whether an object is a deadly weapon based on how it is used: (1) the nature of the object and any damage done to the object; (2) the manner in which it is used; (3) what harm could have resulted based on how the object was actually used; (4) actual injury, or lack thereof, caused by the object; (5) the facts known to the aggressor before the assault, including defensive measures taken by the victim; and (6) all other relevant facts. A finding that a knife is likely to produce GBI requires more than a mere possibility that serious injury could have resulted from the way the object was used. Conjecture as to how the object could have been used is inappropriate. Here, even if B.M.’s use of the butter knife against her sister were capable of causing great bodily injury, the evidence was insufficient to show that it was likely to produce GBI or death. This case was decided on 12/27/2018.