People v. Koback, E066674

• Decision Date: 27 June 2019
• Docket Number: E066674
• Citation: 36 Cal.App.5th 912,248 Cal.Rptr.3d 849
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Brian Keith KOBACK, Defendant and Appellant.

36 Cal.App.5th 912

248 Cal.Rptr.3d 849

The PEOPLE, Plaintiff and Respondent,

v.Brian Keith KOBACK, Defendant and Appellant.

E066674

Court of Appeal, Fourth District, Division 2, California.

Filed June 27, 2019

OPINION

McKINSTER, Acting P. J.

I. INTRODUCTION

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, 241 Cal.Rptr.3d 543, 431 P.3d 1180 ( B.M. ). ( People v. Koback (2019) ––– Cal.5th ––––, 244 Cal.Rptr.3d 871, 436 P.3d 898.) 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.

II. PROCEDURAL BACKGROUND

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.

III. FACTS

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.

IV. DISCUSSION

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, 219 Cal.Rptr.3d 331, 396 P.3d 480 ; see B.M. , supra , 6 Cal.5th at pp. 536, 539, 241 Cal.Rptr.3d 543, 431 P.3d 1180.)

" ‘ " ‘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, 161 Cal.Rptr.3d 364, 306 P.3d 1195.) " ‘A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.’ " ( People v. Albillar (2...