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In re B.M.

California Court of Appeals, Second District, Sixth Division

April 20, 2017

In re B.M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent,
v.
B.M., Defendant and Appellant.

         Superior Court County of Ventura Super. Ct. No. 2016025026 Brian J. Back, Judge

          Donna Ford, under appointment by the Court of Appeal, for Defendant and Appellant.

          Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, Michael J. Wise, Deputy Attorney General, for Plaintiff and Respondent.

          YEGAN, Acting P. J.

         A common butter knife is designed to cut and spread butter. In the hand of a person bent on assaulting another, it may be a useful tool to inflict great bodily injury. Consistent with an express direction from the California Supreme Court (People v. McCoy (1944) 25 Cal.2d l77, l88-189) and time-honored rules on appeal, we conclude that the trial court's factual finding that the instant butter knife was a deadly weapon must be affirmed on appeal. To the extent that In re Brandon T. (2011) 191 Cal.App.4th 1491 holds to the contrary, we respectfully disagree.

         As we shall explain, an assault with a deadly weapon is complete when the defendant, with the requisite intent, uses an object in a manner which is capable of producing great bodily injury upon the victim. Such an assault is not negated by 1. the victim's use of a shield or body armor to prevent injury; or 2. ineptness or poor aim in the use of the object; or 3. lack of success in inflicting great bodily injury.

         B.M. appeals from a juvenile court order declaring her a ward of the court and ordering her to serve 90 days in a juvenile justice facility. After a contested jurisdictional hearing, the court sustained a petition charging that appellant committed a felony assault with a deadly weapon (a knife) in violation of Penal Code section 245, subdivision (a)(1).

         Relying on Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), appellant contends the juvenile court erroneously admitted statements she made to the police. She also contends that the evidence is insufficient to support the finding that the knife she used was a deadly weapon. These contentions are without merit and we affirm.

         Facts

         Appellant, seventeen years old, was angry because she could not get inside the family home. Her mother had changed the locks to the house. She entered the house through a window and went into her sister's (S.M.) bedroom. She tried to pull S.M.'s hair out, threw a telephone at her, and left the room.[1] She returned carrying “a small... knife, like a butter knife.” It was “[t]he type of knife that you would use to butter a piece of toast.” The knife was metal and about six inches long. The blade was about three inches long. “It wasn't... sharp” and had “small ridges” along one side.

         S.M. was lying on her back on a bed when appellant attacked her with the knife. She covered herself with a blanket for protection. The knife struck the blanket near her legs a “few times.” Through the blanket, S.M. felt pressure from the knife. On a scale of one to ten with one being the least amount of pressure, the pressure was “[m]aybe like a five or a six.” Instead of “pok[ing]” S.M. with the knife, appellant made a “slicing kind of” motion.

         Appellant was “yelling” at S.M. who was terrified by the attack. When appellant left the bedroom, S.M. telephoned the police. The recording of her frantic call for help to the 911 operator was received by the juvenile court.

         In response to the telephone call, Officer Ryan Reynosa drove to S.M.'s residence. On the way there, he was given a description and the name of the suspect. He saw appellant outside the residence “and asked her if her name was [B.M.].” Appellant replied, “Yes.” Officer Reynosa testified, “I then asked her to walk over towards me and sit against the bumper by my marked patrol vehicle so I could talk to her about what had happened.” Appellant complied with his request.

         Officer Reynosa told appellant that he “had gotten a call of a fight inside the house and [he] asked her what... happened.” Appellant explained as follows: she arrived at the residence and had been unable to open the front door with her key. She believed that S.M. had rekeyed the lock. Appellant entered the residence through an unlocked window. She was “very upset.” Appellant “grabbed... what she described as a butter knife off of the kitchen counter and went upstairs to confront her sister [S.M.].” Upon entering her sister's bedroom, appellant “began yelling at [S.M.]... and... was holding the butter knife in her right hand and was pointing it at S.M.” When S.M. told her to get out and threatened to call the police, appellant made “downward stabbing ...


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