People v. Page

• Decision Date: 10 November 2004
• Docket Number: No. E035010.,E035010.
• Citation: 123 Cal.App.4th 1466,20 Cal.Rptr.3d 857
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Larry Robert PAGE, Defendant and Appellant.

20 Cal.Rptr.3d 857

123 Cal.App.4th 1466

The PEOPLE, Plaintiff and Respondent, v. Larry Robert PAGE, Defendant and Appellant.

No. E035010.

Court of Appeal, Fourth District, Division 2.

November 10, 2004.

Certified for Partial Publication.^*

Review Denied January 26, 2005.^**

Maria Morrison, Los Angeles, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Janelle Boustany, Supervising Deputy Attorney General, Marilyn L. George and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

RICHLI, J.

Defendant Larry Robert Page or his accomplice took money from the victim's pockets; either before or afterwards, the accomplice held a sharp pencil up to the victim's neck and warned him not to come back with the police. As a result, defendant was found guilty of second degree robbery (Pen.Code, §§ 211, 212.5, subd. (c)) and assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)). He was given a suspended sentence of three years in prison, then placed on probation for five years, on conditions including a year in jail.

Defendant contends, among other things, there was insufficient evidence that the pencil was a deadly weapon or, alternatively, because there was substantial evidence that the pencil was not a deadly weapon, the trial court erred by failing to instruct on simple assault as a lesser included offense. In the published portion of this opinion, we will hold that the pencil was a deadly weapon as a matter of law, even though the accomplice did not actually wield it with deadly force and even though she used it solely in connection with a threat to harm the victim in the future.

In the unpublished portion of this opinion, we accept the People's concession that the sentence violated Penal Code section 654. Otherwise, we find no error. Hence, we will modify the sentence and affirm the judgment as modified.

I FACTUAL BACKGROUND

A. Testimony of the Victim.

On July 21, 2003, around 3:30 a.m., victim Craig Lucas was on Davidson Street in San Bernardino, walking home from his job at a Taco Bell. As he walked past one house, he noticed about eight people standing outside.

Two of these people—a young man and a young woman—came up to Lucas from behind. The woman asked, in a "hostile" manner, what he was looking at. She then "came up and started emptying out [his] pockets." Lucas did not resist because he was afraid and he "didn't want to get hurt...." She took his wallet, which contained about $32. She also took a case he was holding, containing a compact disc (CD) player and some CD's. She took his glasses off and stomped on them.

Next, the young man patted Lucas down, took things from his pockets, and asked "if [he] had anything else on [him]." The young man "[s]eemed" drunk or high. At trial, Lucas identified the young man as defendant.

"[A]fter they took everything," the woman held "a sharp[,] pointy object" up to the side of Lucas's neck, touching him, and told him not to involve the police. She said that if he did, she knew where he lived. Defendant laughed. The two then walked off together. When Lucas got home, he called the police.

B. Testimony of Defendant's Accomplice.

Kendra Reader admitted being defendant's accomplice. She had pleaded guilty, pursuant to a plea bargain that required her to testify truthfully. No promises had been made to her concerning her sentence.

On July 21, 2003, at 3:30 a.m., Reader was "hanging out" with some people she had just met, including defendant, at a house on Davidson Street. She noticed Lucas seeming to loiter near her car. After he walked by the house, she went up to him and asked what he was doing. Defendant followed her.

Lucas was holding a CD player and a pencil. Reader grabbed the CD player and threw it on the ground. At some point, she took his glasses and broke them. She "thought he was going to come after [her]," so she grabbed his pencil, held it to his neck, and "told him not to come back with his friends or the cops." Lucas, evidently concluding he was being robbed, told them where they could find his wallet and $20 in loose cash. Defendant took both items. Reader denied going through Lucas's pockets.

As defendant and Reader walked away, Reader picked up the CD player. They went to a gas station and bought gas. They tried to pay with Lucas's credit card, but "[i]t didn't work," so they paid with cash from Lucas's wallet instead.

C. Testimony of the Police.

Around 5:00 a.m., Officers Chris Johnson and Scott Mathews went to the house on Davidson Street to investigate a trespassing report. They discovered defendant and Reader "running down the side of the house and trying to hide." Defendant and Reader matched the description given in an earlier robbery report, so the officers arrested them. In an in-field showup, Lucas "positively identified" both defendant and Reader. Identification cards belonging to Lucas were found on defendant's person. Lucas's CD player was found in Reader's car.

When the police interviewed Lucas, he told them defendant "did not do anything except laugh[.]"

Officer Johnson transported defendant to the police station, arriving around 7:00 a.m. Defendant was incoherent and "in and out of consciousness."

II THE EVIDENCE THAT AN ASSAULT WAS COMMITTED WITH A DEADLY WEAPON

Defendant contends there was insufficient evidence that the assault was committed with a deadly weapon. Alternatively, he contends there was substantial evidence that it was not committed with a deadly weapon, and therefore the trial court erred by failing to instruct on the lesser included offense of simple assault.

A. The Sufficiency of the Evidence That the Pencil Was a Deadly Weapon.

"As used in [Penal Code]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 establishes 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. [Citations.]" (People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029, 68 Cal.Rptr.2d 655, 945 P.2d 1204, quoting In re Jose R. (1982) 137 Cal.App.3d 269, 275-276, 186 Cal.Rptr. 898.)

"`When it appears, however, that an instrumentality ... is capable of being used in a "dangerous or deadly" manner, and it may be fairly inferred from the evidence that its possessor intended on a particular occasion to use it as a weapon should the circumstances require, ... its character as a "dangerous or deadly weapon" may be thus established, at least for the purposes of that occasion.' [Citation.]" (People v. Graham (1969) 71 Cal.2d 303, 328, 78 Cal.Rptr. 217, 455 P.2d 153, quoting People v. Raleigh (1932) 128 Cal.App. 105, 108-109, 16 P.2d 752.)

For example, in People v. Simons (1996) 42 Cal.App.4th 1100, 50 Cal.Rptr.2d 351, the defendant held several police officers at bay by brandishing a screwdriver. He yelled, "Shoot me" and "[C]ome on, kill me, go ahead...." (Id. at p. 1106, 50 Cal. Rptr.2d 351.) Whenever they approached, "`he would bring the screwdriver forward toward [them].'" (Ibid.) He was convicted of exhibiting a deadly weapon to resist arrest. On appeal, he argued that a screwdriver can never be a deadly weapon. (Id., at pp. 1105-1106, 50 Cal.Rptr.2d 351.) The court not only rejected this contention, but also held that, on these facts, the screwdriver was a deadly weapon as a matter of law: "The evidence clearly demonstrated that the screwdriver was capable of being used as a deadly weapon and that defendant intended to use it as such if the circumstances required." (Id. at p. 1107, 50 Cal.Rptr.2d 351.)

In People v. Smith (1963) 223 Cal. App.2d 431, 36 Cal.Rptr. 165, the defendant was convicted of first degree robbery, which, at the time, required him to be armed with a deadly or dangerous weapon. (Id. at p. 432, 36 Cal.Rptr. 165.) The court held there was sufficient evidence of such arming: "The victim testified that defendant stuck a knife on his neck, that he did not see it, but felt the point. There was no objection to the answer that the object was a knife, that it was a conclusion, if conclusion it really was. The knife could be found to be a deadly weapon, without regard to its size, from the manner of its use. [Citations.]" (Ibid.)

Finally, in People v. Klimek (1959) 172 Cal.App.2d 36, 341 P.2d 722, the two defendants accosted the victim. One of them "poked something in his side and said: `Don't move, Buddy, or I will kill you.'" (Id. at p. 39, 341 P.2d 722.) They took his money and his watch. (Ibid.) When they were arrested, just minutes later, one of them was found to have an ice pick. (Id. at p. 40, 341 P.2d 722.) They were convicted of first degree robbery, based on being armed with a deadly or dangerous weapon. (Id. at pp. 40-41, 341 P.2d 722.) The court found sufficient evidence that the ice pick was a deadly weapon: "Its intended use and appellant's ability to use it as a deadly weapon are clearly shown by the statement of appellant: `Don't move, Buddy, or I will kill you.'" (Id. at p. 42, 341 P.2d 722; see also People v. Moran (1973) 33 Cal.App.3d 724, 730, 109 Cal. Rptr. 287 [three-pronged fork used to commit rape constituted deadly weapon]; People v Garcia (1969) 275 Cal.App.2d 517, 521, 79 Cal.Rptr. 833 [bow and arrow constituted deadly weapon, even if merely held in firing position].)...