People v. Marsh
249 Cal. Rptr. 3d 749
Cal. Ct. App. 5th2019Background
- On June 21, 2017, defendant Spencer Marsh (member of fitness club) was observed on surveillance crawling under Alex P.’s parked Jeep and later sitting in a nearby van while Alex exercised. Alex discovered both front brake lines severed and brake fluid leaking before driving; he identified Marsh as the person in the van.
- Fitness-club surveillance and check-in records placed Marsh at the club and show a person in the same clothing going under the Jeep during the hour Alex was inside.
- Mechanic and detective testimony established that severed brake lines would likely render the vehicle unable to stop (though it might still start), creating a high risk of serious injury or death if driven.
- Marsh was convicted by a jury of assault with a deadly weapon (Pen. Code § 245(a)(1)) and vandalism (§ 594); enhancements found that the deadly weapon was a vehicle and damage exceeded $400. Court sentenced midterm 3 years for assault and stayed a 2-year term for vandalism under § 654.
- Marsh appealed, arguing (1) insufficient evidence that the vehicle was a “deadly weapon,” (2) instructional error by giving an alternative definition allowing “inherently deadly” objects, and (3) ineffective/constitutional error from defense counsel’s alleged concession on vandalism.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Marsh) | Held |
|---|---|---|---|
| Sufficiency: whether severing brake lines constituted using a "deadly weapon" under §245(a)(1) | The intentional severing of brake lines rendered the vehicle likely to cause death or great bodily injury if driven, so substantial evidence supports assault conviction | Marsh: because Alex discovered the damage and never drove the car, the vehicle was not used in a manner likely to produce death or great bodily injury; therefore insufficient evidence | Affirmed. Court held severing brake lines was an act that used the vehicle as a deadly weapon (likely to produce great bodily injury); discovery before driving does not negate assault liability. |
| Jury instructions: whether including “inherently deadly” in CALCRIM definitions was erroneous and prejudicial | Instructional error was harmless because prosecution argued only the ‘‘used as’’ theory and evidence supports that theory beyond a reasonable doubt | Marsh: including an ‘‘inherently deadly’’ alternative allowed conviction on an invalid theory and requires reversal | Court found including "inherently deadly" was legal error (motor vehicle is not inherently deadly) but harmless beyond a reasonable doubt because the prosecutor and evidence relied solely on the ‘‘used in such a way’’ theory. |
| Use-of-vehicle without possession: whether defendant must control the vehicle to "use" it as a weapon | People: one can “use” an instrumentality by intentionally rendering it dangerous even if not in the defendant’s control (citing Russell) | Marsh: argues lack of possession/control means no use of the vehicle as a weapon | Court adopted Russell reasoning: intentionally creating a condition (cutting brakes) that makes a vehicle unable to stop constitutes use of the vehicle as a deadly weapon. |
| Counsel concession on vandalism: whether defense counsel’s on-the-record concession amounted to a guilty plea requiring a waiver | People: defense concession in closing does not relieve prosecution of burden or amount to a plea; jury instructed counsel statements are not evidence | Marsh: counsel’s concession was tantamount to guilty plea and thus invalid without plea waiver | Court followed Cain and Lopez II: counsel’s concession was not equivalent to a guilty plea and did not require a personal waiver; conviction on count 2 stands. |
Key Cases Cited
- People v. B.M., 6 Cal.5th 528 (2018) (clarifies that an object is a deadly weapon only if used in a manner likely to produce death or great bodily injury; speculative uses insufficient)
- People v. Russell, 129 Cal.App.4th 776 (2005) (holding a defendant can "use" a vehicle as a deadly weapon by intentionally placing a victim in its path or otherwise exploiting a vehicle’s dangerous properties without controlling it)
- People v. Aguilar, 16 Cal.4th 1023 (1997) (defines deadly weapon as object used in a manner capable of and likely to produce death or great bodily injury; trier of fact may consider manner of use and surrounding circumstances)
- People v. Williams, 26 Cal.4th 779 (2001) (assault liability turns on what might have happened from defendant’s conduct, not only on actual injury)
- People v. Cain, 10 Cal.4th 1 (1994) (trial counsel’s tactical concession of guilt on some charges during trial is not tantamount to a guilty plea requiring a personal waiver)