People v. Lochtefeld

• Decision Date: 11 January 2000
• Docket Number: No. D031877.,D031877.
• Citation: 77 Cal.App.4th 533,91 Cal.Rptr.2d 778
• Parties: The PEOPLE, Plaintiff and Respondent, v. Daniel Bernard LOCHTEFELD, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

91 Cal.Rptr.2d 778

77 Cal.App.4th 533

The PEOPLE, Plaintiff and Respondent, v. Daniel Bernard LOCHTEFELD, Defendant and Appellant.

No. D031877.

Court of Appeal, Fourth District, Division 1.

January 11, 2000.

Rehearing Denied February 2, 2000.

Review Denied April 26, 2000.^*

Joel K. Liberson, under appointment by the Court of Appeal, Los Angeles, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Esteban Hernandez and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.

BENKE, J.

Penal Code section 245, subdivision (c)¹ punishes "an assault with a deadly weapon or instrument, other than a firearm, or by any means likely to produce great bodily injury upon the person of a peace officer...." (Italics added.) As has been often noted, a pellet gun² is clearly an instrument other than a firearm. (See, e.g., In re Jose A. (1992) 5 Cal. App.4th 697, 700-701, 7 Cal.Rptr.2d 44.) Courts have found pellet guns to be deadly or dangerous weapons in the context of other penal statutes.³ May a pellet gun also, as a matter of law, be a deadly weapon within the meaning of section 245? The question does not appear to have been answered. We hold that the pellet gun used here was, as a matter of law, a deadly weapon within the meaning of section 245.

FACTS

Daniel Bernard Lochtefeld (Lochtefeld) was a resident of the Pine Hotel on Front Street in downtown San Diego. On September 23, 1997, a fellow resident, Carolyn Scott, saw Lochtefeld standing outside the hotel waving a big handgun in the air. Scott told the hotel manager, Vivian Caparell, that Lochtefeld was walking around with a gun in his hand.

Scott continued to watch Lochtefeld, and saw him at a bus stop where a man and an African-American woman were sitting. Lochtefeld had the gun in his pocket, with the handle sticking out and his hand on it. Lochtefeld said, "I hate niggers and if you don't move, I'm going to shoot you." The woman then ran down the street, and Lochtefeld boarded a bus. Caparell, who also observed Lochtefeld threatening the woman at the bus stop, thought Lochtefeld was "going to kill the lady," and so Caparell called the police.

San Diego Police Officers Hensley, Robertson, and Cali went to Lochtefeld's room at the Pine Hotel and knocked on the door. No one answered. The officers continued knocking, and announced they were police officers investigating a crime. Although there was still no response, the officers could hear someone moving in the room. Officer Hensley told Lochtefeld that the police were not going to go away, but Lochtefeld angrily called out for the police to go away, and refused to open his door.

At one point, the officers heard a metalon-metal noise that sounded like the operating mechanism of a semiautomatic pistol, and Hensley told the others, "That sounded like a gun." While another officer got a master key from Caparell, Hensley called his supervisor, Sergeant Stetson. Stetson came to the Pine Hotel with his supervisor, Lieutenant McGinley. When Lochtefeld also refused to open his door for McGinley, the lieutenant used the master key to open Lochtefeld's door.

McGinley and Hensley leaned into the room and saw Lochtefeld sitting on his bed, pointing his gun directly at them. (McGinley said Lochtefeld was "pointing a gun at my head" and had his finger on the trigger.) Hensley jumped back, and McGinley called out, "He has a gun." McGinley had his weapon pointed at Lochtefeld's head. As he began to pull the trigger, he realized Lochtefeld's weapon was a pellet gun.

McGinley twice ordered Lochtefeld to put down his weapon or be shot. Lochtefeld complied, and was handcuffed. Hensley then unloaded the six or seven pellets in Lochtefeld's weapon, which was a replica of a Smith & Wesson nine-millimeter semiautomatic pistol, and took it outside. Hensley test-fired the unloaded pellet gun five or six times to see if it was functional, and each time a burst of compressed CO₂ was expelled.

Eugene Wolberg, a criminalist specializing in firearms for almost 20 years, examined Lochtefeld's gun. The magazine of Lochtefeld's weapon holds 15 pellets. A burst of compressed CO₂ projects the pellets out the barrel "very much like a firearm." Wolberg inserted a fresh CO₂ cylinder and then test-fired 15 full magazines through the gun.

The first few magazines Wolberg fired expelled projectiles at velocities over 380 feet per second, and by the 10th magazine (150 pellets), the projectile velocity still averaged 300 feet per second. Over the next 4 magazines, the projectile velocity dropped to 81 feet per second, and after one or 2 shots from the 15th magazine, the C cylinder was empty.

Wolberg testified that his review of the relevant literature indicated that a velocity of 300 to 360 feet per second would go through human skin and penetrate muscle tissue to a depth of about one inch and a half. Pellet velocities above 250 feet per second would penetrate an eyeball.

With respect to Lochtefeld's gun, of the 210 pellets fired, the first 150 would penetrate skin and reach a depth of one inch and a half into muscle tissue, while the first 165 pellets fired would penetrate an eyeball. Pellet guns range from children's BB guns firing BB's under 200 feet per second, which are unlikely to cause injury, to "adult" pellet guns that can expel projectiles over 650 feet per second, which can be lethal. Lochtefeld's weapon was in the middle range, firing the pellets at an average of 350 feet per second. While Lochtefeld's gun was unlikely to cause a fatality, in Wolberg's opinion the gun was capable of inflicting "significant injury."

Although Lochtefeld did not testify, his counsel argued in closing that there was insufficient proof Lochtefeld's gun was a deadly weapon because, if the cylinder were substantially drained, the weapon would be unlikely to produce great bodily injury. The prosecutor argued Lochtefeld's conduct in using the gun and threatening to shoot people indicated the weapon was in normal operating condition, i.e., a deadly weapon.

PROCEDURE

By information filed October 17, 1997, the District Attorney of San Diego County accused Lochtefeld of one count of assault with a deadly weapon on a peace officer and personal use of a deadly weapon in violation of sections 245, subdivision (c), and 1192.7, subdivision (c)(23); in a second count of assault with a deadly weapon in violation of section 245, subdivision (a)(1); and in a third count of making a terrorist threat in violation of section 422.

Lochtefeld's counsel made a pretrial motion to dismiss the information under section 995, which was granted as to the third count only. At the close of the People's case, counsel's section 1118.1 motion for acquittal of the second count was granted, with the first count only going to the jury.

On May 14, 1998, the jury returned its verdict finding Lochtefeld guilty of assault with a deadly weapon on a peace officer in violation of section 245, subdivision (c), with a true finding Lochtefeld was personally armed with a deadly weapon in the commission of the offense within the meaning of section 1192.7, subdivision (c)(23). On July 15, 1998, Lochtefeld was sentenced to a term of four years in state prison. Lochtefeld filed his notice of appeal on August 26, 1998.

STANDARD OF REVIEW

Our review of sufficiency of the evidence claims is a highly deferential one:

"In assessing a claim of insufficiency of evidence, the reviewing court's task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.] The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. [Citation.]" People v. Rodriguez (1999) 20 Cal.4th 1, 11, 82 Cal.Rptr.2d 413, 971 P.2d 618.)

DISCUSSION

Lochtefeld argues there was insufficient evidence adduced to support a finding his pellet gun was a deadly weapon, or that it was sufficiently charged with C₂ so that he then had the present ability to inflict injury with it. We disagree.

A. Deadly Weapon

The jurors were instructed, pursuant to a modified version of CALJIC No. 9.02, that "[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." (Italics added.) "Great bodily injury" was defined as "significant or substantial bodily injury or damage." This instruction correctly sets out the law.

"As used in section 245, ... 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 establishes their character as such." (People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029, 68 Cal.Rptr.2d 655, 945 P.2d 1204,⁴ citing People v. Graham (1969) 71 Cal.2d 303, 327, 78 Cal. Rptr. 217, 455 P.2d 153,⁵ disapproved on other grounds in People v. Ray (1975) 14 Cal.3d 20, 32, 120 Cal.Rptr. 377, 533 P.2d 1017.)

Although the terms "dangerous" or "deadly" were used in the disjunctive in...