What is a deadly weapon? Is it limited to a gun or a knife? What about a steel pipe being used to hit someone over the head? How about a feather, if one uses the pointed end to poke someone’s eye out and that person bleeds to death? How about a beer bottle if one breaks it and then hold it by one end as a knife?
The following case tested the limits of what types of objects may qualify as a deadly weapon under Penal Code § 245(a)(1), assault with a deadly weapon.
In November, 2015, Brian Koback walked into a Riverside car rental agency and grabbed a set of car keys from the front desk. He then walked out. Chase, an employee of the rental agency, gave chase. Chase asked Koback for the keys back. Koback ignored Chase and kept walking. Chase then summoned two other employees to help stop Koback and get the keys back.
The three employees formed a circle around Koback and again demanded the keys back. Koback responded that they had better move away or he would “fuck them up.” The employees backed away and Koback walked across the street. The employees followed him there and demanded the keys back again.
Koback then held the keys in his palm with one of the keys with the sharp, or ignition end, sticking out between his knuckles. He then lunged at one of the employees and “swung” or “swiped” the key at the employee’s torso with force. Koback did not make contact with the employee, as he backed away in response. Koback then put the key in his pocket and ran away, but law enforcement captured him about 40 minutes later.
Koback was charged with and convicted of robbery, assault with a deadly weapon (under Penal Code § 245(a)(1), assault with a deadly weapon other than a firearm) and resisting arrest (he allegedly fought with police and injured three deputies). As he had a prior strike conviction, Judge W. Charles Morgan in Riverside County sentenced him to 14 years and four months in state prison.
On appeal to the Fourth Appellate District, he argued that his conviction for assault with a deadly weapon is improper because there was no evidence he used the car keys in a manner that was capable of inflicting and likely to create great bodily injury. He argued that car keys are not an inherently dangerous or deadly object.
In People v. Koback (2018) 25 Cal.App.5th 323, the Fourth Appellate District held that substantial evidence supported a conviction for assault with a deadly weapon. The appellate court agreed that car keys are indeed not an inherently dangerous or deadly object, but when used in the manner as did Koback, they were capable of causing and likely to result in serious bodily injury (citing to People v. Aguilar (1997) 16 Cal.4th 1023, at 1029).
The appellate court explained that under Penal Code § 245(a)(1), a “deadly weapon” is any “object, instrument or weapon which is used in such a manner as to be capable of producing or likely to produce death or great bodily injury.” Some objects, “while not deadly per se, may be used under certain circumstances, in a manner likely to produce death or great bodily injury.” Aguilar, supra, 1028-1029.
For example, a metal butter knife with a rounded end, but a few ridges on one edge, can be considered a deadly weapon if used in a stabbing motion. In re B.M. (2018) 6 Cal. 5th 528. In B.M., a case our office summarized in a prior article, the knife did not penetrate the blanket covering the intended victim or cause any injury. In that case, the California Supreme Court stated that it mattered not that the victim was not injured or that defendant was not adept at using a knife, but that the use of the butter knife “likely” or it is was “probable” that it could have inflicted great bodily injury or, just as easily, mayhem on the victim’s face.
Here, it was likely or probable that the swinging motion of a pointed metal key could have inflicted great bodily injury or mayhem on the rental car employee that Koback swung his hand towards, so such conduct constituted assault with a deadly weapon.