36 Cal. App. 5th 912
Cal. Ct. App. 5th2019Background
- Defendant Brian Koback took a rental car key set, was pursued by three employees, and during a confrontation in a motel parking lot made a fist with a key protruding between his knuckles and swung or lunged at an employee’s torso; no contact was made.
- Employees followed and later deputies pursued and subdued Koback; three deputies suffered minor injuries during the arrest.
- A jury convicted Koback of assault with a deadly weapon (a key), robbery, and resisting arrest; he admitted one strike; trial court sentenced him to 14 years 4 months.
- On initial appeal this court affirmed the deadly-weapon conviction but reversed the sentence because the trial court mistakenly believed it could impose concurrent terms only if it struck the strike; remand ordered for resentencing.
- The California Supreme Court directed reconsideration in light of In re B.M.; on remand this panel again affirms the assault-with-a-deadly-weapon conviction, reverses the sentence, and remands for resentencing to allow the trial court to decide whether to run counts concurrently.
Issues
| Issue | People’s Argument | Koback’s Argument | Held |
|---|---|---|---|
| Whether there was substantial evidence that a car key was used as a "deadly weapon" (Pen. Code § 245(a)(1)) | The key, gripped so the ignition end protruded, was swung at a clothed torso from close range with force; that use was capable of and likely to produce great bodily injury | The key is not inherently dangerous; evidence showed a single missed swipe with unknown force — insufficient to show the manner of use was likely to cause great bodily injury | Conviction affirmed: viewing evidence in favor of the verdict, the panel concludes the key was used in a manner capable of and likely to produce serious injury under Aguilar and B.M. principles (distinguishing B.M.) |
| Whether the trial court erred in believing it could impose concurrent sentences on counts only if it struck the strike prior | — (People defend trial court’s exercise) | Court mistakenly thought it had to strike the strike to run counts concurrently; defense sought concurrent terms | Sentence reversed and remanded for resentencing; trial court must reconsider, in the first instance, whether counts arose from the same occasion/operative facts and whether concurrent terms are appropriate |
| Whether sentencing minutes and abstract accurately reflect oral pronouncement re: restitution & parole-revocation fines | People initially argued fines reflected statutory formula | Koback pointed out the court orally announced it would impose the minimum fine, but the minutes/abstract show higher fines ($3,600) | Court finds clerical/record errors: minutes/abstract inconsistent with oral pronouncement; but because sentence is reversed, corrections deferred to resentencing |
| Whether minutes incorrectly state two admitted priors | Koback identified the error; People conceded the minutes were incorrect | — | Court agrees minutes erroneously state two admissions; expects correction on remand |
Key Cases Cited
- People v. Aguilar, 16 Cal.4th 1023 (clarifies deadly-weapon test: object must be used in a manner both capable of and likely to produce death or great bodily injury)
- In re B.M., 6 Cal.5th 528 (2018) (clarifies that likelihood requires more than mere possibility and inquiry must focus on how the object was actually used)
- People v. Simons, 42 Cal.App.4th 1100 (1996) (upheld finding a screwdriver could be a deadly weapon where it was flailed at officers; relied on by majority as analogous)
- People v. Page, 123 Cal.App.4th 1466 (2004) (pencil held to victim’s neck found to be used as a deadly weapon)
- In re D.T., 237 Cal.App.4th 693 (2015) (pocketknife pressed to a victim’s back could be a deadly weapon where a sudden distraction could produce a serious puncture)
- People v. Beasley, 105 Cal.App.4th 1078 (2003) (insufficient evidence where degree of force used with a broomstick was not described; emphasized need for facts on force actually used)
- People v. Duke, 174 Cal.App.3d 296 (1985) (insufficient where headlock felt firm but victim did not describe tightening; focus on force actually used)