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People v. Koback

California Court of Appeals, Fourth District, Second Division

June 27, 2019

THE PEOPLE, Plaintiff and Respondent,
BRIAN KEITH KOBACK, Defendant and Appellant.

          APPEAL from the Superior Court of Riverside County No. RIF1506598 W. Charles Morgan, Judge. (Retired Judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part; reversed in part with directions.

          Jason L. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.

          Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Melissa Mandel and Craig H. Russell, Deputy Attorneys General, for Plaintiff and Respondent.


          McKINSTER, ACTING P. J.



         Defendant Brian Keith Koback walked into a rental car company office and stole a set of car keys. When confronted by three employees in the parking lot, defendant told the men to back off or he would “fuck” them up. He then walked across the street. Undeterred, the three employees followed defendant to a motel parking lot where they again confronted him and demanded defendant return the keys. Defendant made a tight fist around one of the key fobs, so the ignition portion of the key was sticking out between his knuckles and, from within arm's reach, lunged at one of the employees while swiping or swinging at the employee's torso. Defendant did not make contact. When the employees backed off, defendant jumped a fence and tried to flee. Police officers arrived and pursued defendant. Officers subdued defendant after a brief struggle, during which three of the officers suffered minor injuries.

         Defendant was charged with and convicted of robbery, assault with a deadly weapon, and resisting arrest. Defendant admitted he had suffered a strike conviction, and the trial court sentenced him to state prison for 14 years four months. On appeal, defendant argues: (1) his conviction for assault with a deadly weapon is not supported by substantial evidence because there is no evidence he used the car keys in a manner that was capable of inflicting and likely to cause great bodily injury; (2) the trial court abused its discretion by imposing consecutive sentences on the robbery and resisting arrest counts, under the mistaken belief it could only impose concurrent sentences if it struck defendant's strike prior; (3) the minutes of sentencing and abstract of judgment do not accurately reflect the oral pronouncement of sentence with respect to restitution and parole revocation fines; and (4) the minutes of sentencing contain a clerical error because they state defendant admitted two strike priors instead of one.

         In the published portion of our prior opinion, we concluded defendant's conviction for assault with a deadly weapon was supported by substantial evidence. (People v. Koback (2018) 25 Cal.App.5th 323, review granted Oct. 24, 2018, S250870.) In the unpublished portion of our prior opinion, we held the trial court erred when it concluded the only way it could impose concurrent sentences on defendant's robbery and resisting arrest convictions was if it first struck defendant's admitted strike prior. We reversed the sentence and remanded for the trial court to resentence defendant and to consider in the first instance whether concurrent sentencing is appropriate in this case. Because we reversed the sentence, we left it to the trial court on remand and the Department of Corrections and Rehabilitation to ensure the minutes and abstract of judgment would accurately reflect whatever sentence the court imposed on remand.

         The California Supreme Court granted defendant's petition for review on the issue of the sufficiency of the evidence to support his conviction for assault with a deadly weapon. The Supreme Court subsequently transferred the appeal back to this court with directions to vacate our prior opinion and reconsider the appeal in light of In re B.M. (2018) 6 Cal.5th 528 (B.M.). (People v. Koback (Mar. 27, 2019, S250870) 2019 Cal. Lexis 2046.) We have vacated our prior opinion and received supplemental briefs from the parties addressing the impact of B.M. on this case.

         We once again affirm defendant's conviction for assault with a deadly weapon, reverse the sentence, and again remand for the trial court to resentence defendant and to consider in the first instance whether to impose concurrent sentences on counts 2 and 3.



         In an information, the People charged defendant with assault with a deadly weapon other than a firearm, to wit, a key (Pen. Code, § 245, subd. (a)(1), count 1); robbery (Pen. Code, § 211, count 2); and (3) resisting arrest (Pen. Code, § 69, count 3). The People alleged defendant suffered two prior prison terms (Pen. Code, § 667.5, subd. (b)), to wit: a 2013 conviction for possessing a controlled substance (Health & Saf. Code, § 11377, subd. (a)) and a 2011 conviction for attempted carjacking (Pen. Code, §§ 664, 215). Finally, the People alleged defendant's 2011 conviction for attempted carjacking was a serious felony and a serious and violent felony. (Pen. Code, §§ 667, subds. (a), (c), (e)(1), 1170.12, subd. (c)(1).)

         A jury found defendant guilty on all three counts. In a bifurcated proceeding, defendant admitted his 2011 conviction for attempted carjacking was a strike. The trial court sentenced defendant to a total term of 14 years four months in state prison.

         Defendant timely appealed.



         On November 6, 2015, defendant walked into a rental car company office, grabbed a set of car keys from the front desk, and walked out.[1] Chase, [2] an employee who was manning the front desk, learned what had happened from a customer and followed defendant into the parking lot. Chase told defendant to stop, and said, “Please give me the keys.” Defendant kept walking away, pretended not to know anything about the keys, and reached into the pocket of his sweatpants. Fearing defendant might be armed, Chase backed off and enlisted the help of two other employees who happened to be nearby, Agustin and Arthur. The three employees formed a wide circle around defendant to prevent him from leaving.

         Chase and Agustin noticed one of the keys was hanging out of defendant's pocket, and they demanded defendant return the keys. Defendant stopped and stood facing Agustin and Arthur from about two feet away. Chase backed off and stood about five feet behind defendant. Defendant appeared to be getting angry. Defendant again reached into his pocket, “like he was going to go for something.” Defendant told the men to “back up” or “move, ” or he would “fuck” them up. He then began to walk away across the street. The employees then got into Arthur's car and followed defendant into a motel parking lot across the street.

         The three men stood around defendant in the motel parking lot and again demanded that defendant return the car keys. Chase testified defendant stood “[a]bout a foot from arm's reach” away from the three men, but Agustin was closest to defendant. Agustin testified defendant stood two to three feet away from him, and was within arm's reach. Defendant asked, “You want the keys?” He then took the car keys from his pocket, made a tight fist, and held one of the keys with the “sharp”[3] or ignition end of the key sticking out between his knuckles. Defendant then “charged, ” “came at, ” or “lunged” at Agustin and “swung” or “swiped” the key at Agustin's torso.[4] Arthur described defendant's motion like “throwing a punch.” Agustin testified he was nervous and afraid he might get hurt because defendant swung the key at him “with force.” Chase testified he did not believe defendant was close enough to Agustin to actually make contact. But Agustin testified he was not hit “because my nephew [i.e., Arthur] pulled me back.” Arthur testified, “If I didn't move [Agustin], he probably would have got hit.” The three men backed away from defendant.

         Defendant then put the keys back into his pocket, took off, and scaled the wall behind the motel. The employees got back into the car and found defendant as he walked along one of the streets behind the motel. They followed defendant by car through a small area of shops and streets for about 40 minutes, until law enforcement arrived and took over the pursuit. Several deputies chased down and subdued defendant. Defendant resisted, and three deputies were injured in the process.

         Defendant testified he found the car keys next to a bus stop. Defendant ran from the police because he feared for his life. He denied taking the car keys from the rental car company office, denied resisting arrest, and denied that he swung the keys at Agustin.



         A. Substantial Evidence Supports Defendant's Conviction for Assault with a Deadly Weapon.

         Defendant argues his conviction for assault with a deadly weapon is not supported by substantial evidence because he did not use the car keys-an object that is not inherently deadly or dangerous-in a manner capable of causing and likely to result in serious bodily injury. On this record, we conclude defendant did, in fact, use the car keys as a deadly weapon.

          1. Standard of review.

         Our standard of review is well settled. “We ‘“‘must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.'”'” (People v. Brooks (2017) 3 Cal.5th 1, 57; see B.M., supra, 6 Cal.5th at pp. 536, 539.)

         “‘“‘Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[, ] which must be convinced of the defendant's guilt beyond a reasonable doubt. “‘If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.'”'”'” (People v. Harris (2013) 57 Cal.4th 804, 849-850.) “‘A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.'” (People v. Albillar (2010) 51 Cal.4th 47, 60.)

         “‘A reversal for insufficient evidence “is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support'” the jury's verdict.'” (People v. Manibusan (2013) 58 Cal.4th 40, 87.)

          2. Applicable law.

         “Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm shall be punished by imprisonment in the sate prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10, 000), or by both the fine and imprisonment.” (Pen. Code, § 245, subd. (a)(1); all undesignated statutory references are to the Penal Code.)

         “As used in 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 great bodily injury. [Citation.] Some few objects, such as dirks and blackjacks, have been held to be deadly weapons as a matter of law; the ordinary use for which they are designed established their character as such. [Citation.] Other objects, while not deadly per se, may be used, under certain circumstances, in a manner likely to produce death or great bodily injury. In determining whether an object not inherently deadly or dangerous is used as such, the trier of fact may consider the nature of the object, the manner in which it is used, and all other facts relevant to the issue.” (People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029 (Aguilar).)

         The minor in B.M., supra, 6 Cal.5th 528, took a six-inch “butter knife” with small ridges on one edge and made a few downward stabbing motions at her sister's legs. The sister was wearing nothing but a bath towel and, just before the attack, covered herself with a blanket. The knife did not penetrate the blanket or cause any injury, and the sister testified the pressure she felt from the knife was five or six on a scale of one to 10. (Id. at p. 531.) The juvenile court sustained an allegation the minor committed an assault with a deadly weapon. (Id. at pp. 531-532.) The Court of Appeal affirmed, reasoning, “‘[i]t matters not that [the sister] was able to fend off great bodily injury with her blanket' or ‘that [B.M.] was not adept at using a knife' because B.M. ‘could have easily inflicted great bodily injury with this metal butter knife and just as easily [could] have committed mayhem upon the victim's face.'” (Id. at p. 532.) The appellate court expressly disagreed with In re Brandon T. (2011) 191 Cal.App.4th 1491, which had held a butter knife with a round end and serrated edge was not used as a deadly weapon when a minor made a slashing motion to the victim's cheek and throat with sufficient force to cause the blade of the butter knife to break, caused welts and scratches to the victim, but did not draw blood. (Id. at pp. 1496-1498.)

         In B.M., supra, 6 Cal.5th 528, the Supreme Court clarified the law with respect to assault with a deadly weapon when the object used is not an inherently deadly weapon and distilled three principles to be applied in such cases:

         “First, the 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.”' (Aguilar, supra, 16 Cal.4th at p. 1029, italics added.)” (B.M., supra, 6 Cal.5th at p. 533.) The court rejected the Attorney General's argument “‘capable of producing' and ‘likely to produce' are essentially the same because the term ‘“likel[y]”' has the same meaning as ‘“possib[le].”'” (Ibid.) Citing dictionaries (see discussion of B.M.'s concurring opinion, post), the court stated the Attorney General's definition was “at odds with the ordinary meaning of ‘likely.'” (Ibid.) And citing decisions holding felony child abuse “‘likely to produce great bodily harm or death'” (§ 273a) refers to abuse in situations where the probability of serious injury is great, the court indicated the Attorney General's definition “is also inconsistent with how we have treated the term ‘likely to produce bodily harm or death' elsewhere in the Penal Code.” (B.M., at p. 533.)

         The Supreme Court also rejected the Attorney General's assertion an object is likely to produce death or great bodily injury if its use “‘“in an assault increases the likelihood of great bodily injury.”'” (B.M., supra, 6 Cal.5th at p. 534.) “[T]he fact that B.M.'s use of a butter knife may have increased the likelihood of serious injury does not establish that her use of the object was likely to cause serious injury. An increase in likelihood from impossible to unlikely, for example, does not show that the object was likely to cause serious harm. The use of an object in a manner ‘likely to ...

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