People v. Aguilar

• Decision Date: 17 November 1997
• Docket Number: No. S054812,S054812
• Citation: 945 P.2d 1204,68 Cal.Rptr.2d 655,16 Cal.4th 1023
• Court: California Supreme Court
• Parties: , 945 P.2d 1204, 97 Cal. Daily Op. Serv. 8665, 97 Daily Journal D.A.R. 14,033 The PEOPLE, Plaintiff and Respondent, v. Raymond AGUILAR et al., Defendants and Appellants.

Page 655

68 Cal.Rptr.2d 655

16 Cal.4th 1023, 945 P.2d 1204, 97 Cal. Daily Op. Serv. 8665,

97 Daily Journal D.A.R. 14,033

The PEOPLE, Plaintiff and Respondent, v. Raymond AGUILAR et al., Defendants and Appellants.

No. S054812.

Supreme Court of California.

Nov. 17, 1997.

Meredith J. Watts, San Francisco, and Patricia L. Watkins, Half Moon Bay, under appointments by the Supreme Court, for Defendants and Appellants.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Laurence K. Sullivan and Rene A. Chacon, Deputy Attorneys General, for Plaintiff and Respondent.

WERDEGAR, Justice.

Penal Code section 245, subdivision (a)(1) ¹ punishes "an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury." (Italics added.) We granted review to determine whether hands or feet can constitute "deadly weapons" within the meaning of the statute. That hands and feet may be capable of inflicting deadly force, as by means of

[945 P.2d 1206] karate kicks or prizefighter blows, is not in question. We conclude, however, [16 Cal.4th 1027] that the term "weapon," as used in the statute, implies an object extrinsic to the body. Contrary to the Court of Appeal, we further conclude the jury was not asked to find defendant Raymond Aguilar guilty under an erroneous legal theory; hence, reversal of defendant's conviction (under the rule of People v. Guiton (1993) 4 Cal.4th 1116, 17 Cal.Rptr.2d 365, 847 P.2d 45) was improper. Accordingly, the judgment is reversed and the cause remanded to the Court of Appeal for consideration of defendant's other appellate claims.

FACTS

During the evening of July 19, 1993, defendant, his codefendant Richard Perez and two companions, Bobby Nieblas and Edward Prado, had been drinking beer and were driving around Gilroy. Earlier that evening, while the group was at a Taco Bell restaurant, Nieblas was involved in a verbal altercation with a person on rollerblades. Later, as the four were driving around, Nieblas spotted the victim, Donald Tenny, who was rollerblading. Nieblas asked Perez, who was driving, to stop the car so he could see if Tenny was the same person who had "hassled" him at the Taco Bell.

Despite Tenny's efforts to communicate that he was not the person for whom the group was looking, a fight ensued. Tenny was repeatedly kicked "like [a] football" and suffered, as well, a few blows from the hands of his assailants. Exactly who did what during the assault was disputed at trial. Perez demanded Tenny's watch and billfold; when Tenny said he had no billfold, Perez stated, "You will die for that." Tenny estimated the fight lasted from one to fourteen minutes, at which point the assailants got into their car and left. Tenny then noticed his watch was missing.

Having received a report of a fight, police stopped Perez's car a short distance away; after receiving a further report the incident might also have involved robbery of Tenny's watch, an officer visually inspecting the interior of Perez's car found the watch on the floorboard in front of defendant. Brought to the scene, Tenny identified the suspect vehicle and its occupants.

Tenny suffered multiple bruises, a concussion, a broken left thumb, a wound to the back of his head requiring stitches and an injury to his ankle requiring a cast.

The jury found both defendant and Perez guilty of assault with a deadly weapon or by means of force likely to produce great bodily injury. (§ 245, subd. (a)(1).) The jury also found Perez guilty, but defendant not guilty, of robbery (§ 211) and found true as to Perez, but not true as to defendant, great bodily injury enhancement allegations. (§§ 12022.7, 1203, subd. (e)(3).)

On appeal, in reliance on People v. Guiton, supra, 4 Cal.4th 1116, 17 Cal.Rptr.2d 365, 847 P.2d 45, the Court of Appeal reversed defendant Aguilar's conviction, reasoning the prosecutor had relied on a legally incorrect theory in suggesting, during closing argument, that hands and feet may be deadly weapons within the meaning of section 245, subdivision (a)(1). ² We granted the Attorney General's petition for review.

DISCUSSION

Section 245, subdivision (a)(1), punishes assaults committed by the following means: "with a deadly weapon or instrument other than a firearm," or by "any means of force likely to produce great bodily injury." One may commit an assault without making actual physical contact with the person of the victim; because the statute focuses on use of a deadly weapon or instrument or, alternatively, on force likely to produce great bodily injury, whether the victim in fact suffers any harm is immaterial. (See People v. Wingo (1975) 14 Cal.3d 169, 176, 121 Cal.Rptr. 97, 534 P.2d 1001.) That the use of hands or fists alone may support a conviction of assault "by means of force likely to produce 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." (In re Jose D.R. (1982) 137 Cal.App.3d 269, 275-276, 186 Cal.Rptr. 898.) 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 establishes their character as such. (People v. Graham (1969) 71 Cal.2d 303, 327, 78 Cal.Rptr. 217, 455 P.2d 153, disapproved on other grounds in People v. Ray (1975) 14 Cal.3d 20, 32, 120 Cal.Rptr. 377, 533 P.2d 1017.) 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. (In re Jose D.R., supra, 137 Cal.App.3d at p. 276, 186 Cal.Rptr. 898; see People v. Nealis (1991) 283 Cal.Rptr. 376, 232 Cal.App.3d Supp. 1, 4, fn. 2 [citing California decisions holding various objects, not deadly per se, to be deadly weapons under the particular circumstances].)

great bodily injury" is well established (ibid.; People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066, 10 Cal.Rptr.2d 839; see People v. Duke (1985) 174 Cal.App.3d 296, 302-303, 219 Cal.Rptr. 873 [when hands, fists and feet are employed in an assault, normally the charge will be assault with force likely to produce great bodily injury]; 1 Witkin & Epstein, Cal.Crim. Law (2d ed. 1988) Crimes Against the Person, § 420, p. 482), but this court has never previously decided whether, under section 245, subdivision (a)(1), the use of hands or feet alone may suffice for conviction of assault with a deadly weapon. ³

In the present case, the prosecutor asserted in the course of his closing argument that hands and feet may be deadly weapons. (We will more fully address the context of the statement below.) We are asked to determine whether the prosecutor's comment was an accurate statement of the law within the meaning of section 245, subdivision (a)(1).

As the Court of Appeal recognized, to answer this question we must look to the language The Court of Appeal concluded the ordinary understanding of the phrase "deadly weapon or instrument" does not encompass hands or feet per se, but rather includes only objects extrinsic to the body. The Court of Appeal also reasoned that to define "deadly weapon or instrument" to include feet and hands would make redundant the clause "force likely to produce great bodily injury." This is so because deadly weapons or instruments not inherently deadly are defined by their use in a manner capable of producing great bodily injury. (People v. White (1963) 212 Cal.App.2d 464, 465, 28 Cal.Rptr. 67.) According to the Court of Appeal, "if hands and feet can constitute deadly weapons, then it would appear that anything--inanimate or animate object or body parts such as hands, feet or teeth--could, in appropriate circumstances, be considered a 'deadly weapon.' " If this were the case, the court noted, the "force likely to produce great bodily injury" clause would be unnecessary. The Court of Appeal inferred from the inclusion of both clauses in section 245, subdivision (a)(1), a legislative intent that a meaningful difference exist between the two clauses, an intent furthered by the court's reading of the statute.

                [945 P.2d 1208]  of the statute and accord its words their usual, ordinary and commonsense meaning based on the language used and the evident [16 Cal.4th 1030] purpose for which the statute was adopted.  (People v. Valladoli (1996) 13 Cal.4th 590, 597, 54 Cal.Rptr.2d 695, 918 P.2d 999.)   The words of the statute must be construed in their context.  (Id. at p. 599, 54 Cal.Rptr.2d 695, 918 P.2d 999.)   We also generally avoid a reading that renders any part of a statute superfluous.  (Quintano v. Mercury Casualty Co.   (1995) 11 Cal.4th 1049, 1058-1059, 48 Cal.Rptr.2d 1, 906 P.2d 1057.)
                

The Court of Appeal's inference appears sound, particularly in light of the history of section 245. When first enacted in 1872, section 245 read as follows: "Every person who, with intent to do bodily harm, and without just cause or excuse, or when no considerable provocation appears, or when the circumstances show an abandoned and malignant heart, commits an assault upon the person of another with a deadly weapon, instrument, or other thing, is punishable by imprisonment in the State Prison not exceeding two years, or by fine not exceeding five thousand dollars, or by both." (1872 Pen.Code, § 245.) Section 245 was amended two years later, in 1874; as relevant here, the amendments eliminated the intent and lack-of-provocation elements and added the "force likely" clause as an alternative to the "deadly weapon" clause. (Code Amends. 1873-1874, ch. 614, § 22, p. 428...