APPEAL from orders of the Superior Court of Los Angeles County. Stephanie M. Davis, Referee. (Los Angeles County Super. Ct. No. YJ33380)
The opinion of the court was delivered by: Chaney, J.
CERTIFIED FOR PUBLICATION
Affirmed in part as modified, reversed in part and remanded with directions.
The juvenile court sustained a petition under Welfare and Institutions Code section 602,*fn1 finding true the felony charge that minor Brandon T. committed the crime of assault with a deadly weapon in violation of Penal Code section 245, subdivision (a)(1). The court declared Brandon to be a ward of the court and ordered him to be placed at home on probation. Brandon appeals from the adjudication/disposition order.
Brandon's counsel filed an opening brief raising no issues and asking this court to review the record independently pursuant to People v. Wende (1979) 25 Cal.3d 436. On March 11, 2010, we advised Brandon that he personally had 30 days to submit any contentions or issues he wished us to consider. We also directed his appointed counsel to send the record and opening brief to Brandon immediately. We received no response.
After reviewing the record, we asked the parties to brief the following issues: (1) whether the juvenile court failed to exercise its discretion to determine if the adjudicated offense was a felony or a misdemeanor and whether a remand is required for the court to make an express finding on the record; (2) whether there is sufficient evidence demonstrating that the knife that was used in this case, which was described in the record as a "butter knife," is properly characterized as a "deadly weapon" within the meaning of Penal Code section 245, subdivision (a)(1); and (3) whether we may affirm the adjudication as a simple assault under Penal Code section 240 if we conclude there is insufficient evidence that Brandon committed an assault with a deadly weapon. We attached to our letter to the parties a copy of People's Exhibit No. 1, a photo of the knife.*fn2 Each party submitted a brief.
We conclude there is insufficient evidence demonstrating that Brandon committed assault with a deadly weapon because he did not use the knife in a manner capable of producing and likely to produce death or great bodily injury. We affirm the adjudication as a simple assault, a misdemeanor offense, and remand the matter for a new disposition hearing.
On July 13, 2009, a petition under section 602 was filed, alleging that 15-year-old Brandon committed the crime of assault with a deadly weapon, in violation of Penal Code section 245, subdivision (a)(1). Brandon denied the petition, and a contested adjudication hearing was held.
At the hearing, the victim, Deon H., testified about the assault which occurred on the campus of his high school on May 11, 2009. At about 12:00 p.m., 30 minutes before the assault, Deon and Brandon argued during class. Another student in their class had indicated that he did not want to read. Deon asked the student if he knew how to read. According to Deon, Brandon thought Deon "was being rude." Brandon told Deon he "needed to shut up and stop talking about people." Each told the other to be quiet as they argued back and forth. Then Brandon said, "'You can fight me outside.'" The two young men left the classroom and went outside, but the teacher told them to return. They did not fight.
Deon left the classroom to go to the bathroom. At about 12:30 p.m., he was walking on campus, returning from the bathroom, when Brandon approached him from behind and put an arm around his throat. Two other males also approached from behind. They pulled Deon down to the ground and held him down by his arms. Deon was on the ground facing up. Brandon stood over Deon with a knife. Deon recalled that the knife was "long," "had a blue tip on the end," and had "little ridges on both sides." Deon identified the knife Brandon used as the knife shown in a photo that was admitted into evidence as People's Exhibit 1.
Brandon did not say anything as he stood over Deon. He touched the knife to Deon's cheek and throat. He moved the knife up and down the side of Deon's left cheek "in a slashing motion." Brandon tried two times to cut Deon's face with the knife. Then he tried to cut Deon's throat with the knife, but the handle of the knife "broke off." Deon testified: "He [Brandon] was trying to cut, but it wouldn't cut. So it was just making, like, welts. So then that's when the knife broke." When the handle of the knife broke off, Brandon and the other two males ran away.
Deon found the knife blade on the ground. He did not find the handle that had broken off.*fn3 He picked up the blade and took it to the dean's office at the high school. He reported the assault to a school police officer and turned over the knife blade.
Officer Lucio Reyes also testified at the hearing. He is the school police officer to whom Deon reported the incident. Officer Reyes observed "a small scratch to the left side of [Deon's] face" in the cheek area. The dean of students at the school "handed [Officer Reyes] a butter knife," which Deon had turned in. Deon told the officer it was the knife ...