The underlying case may explain their skepticism. In July 2016, a 16-year-old girl furious at having been locked out of the house by her older sister while their mother was off camping for the weekend with friends broke in through the window and confronted her.
The sister, 17-year-old Sophia M., had just gotten out of the shower when the 16-year-old identified only as B.M. came into her room and began yelling at her, at some point throwing a phone before leaving the room. She returned with a six-inch serrated butter knife.
Sophia sought refuge on her bed, covering herself with a blanket as B.M. advanced, making a downward slicing motion with the knife. According to Sophia, she could feel the pressure from the knife through the blanket, but was not hurt. Another sister was also there and began fighting with B.M. and Sophia called the police.
B.M. said she had just wanted to scare Sophia and had no intention of hurting her. A juvenile court ordered her to spend 90 days in juvenile detention, and B.M. appealed. The trial court in Ventura sustained a petition charging B.M. with felony assault with a deadly weapon, and an appellate court affirmed.
But on Wednesday, justices of the California Supreme Court seemed inclined to disagree the knife can be counted as a deadly weapon in this case.
There is no bright-line rule on assault with a deadly weapon when it comes to everyday objects. While a butter knife is not inherently deadly, in People v. Aguilar the justices held something can only be considered a deadly weapon if it is used in a way that is both “capable of producing and likely to produce, death or great bodily injury.”
For this reason, the justices spent a long time on the particular facts of this case, even on the blanket Sophia used as a shield.
“I would say that stabbing someone, making contact with an all-metal six-inch serrated knife, certainly satisfies the likelihood test,” said Deputy Attorney General Steven Mercer, who indicated the question isn't even close. The justices pushed back.
“If I donned a suit of armor, and the defendant comes at me with even a sharp knife, knowing that is not going to possibly inflict any injury, why wouldn’t we take that into account in determining whether that object was used in a manner likely to produce great bodily injury or death?” Justice Leondra Kruger asked.
It’s the intent to commit the battery that matters, Mercer said. Justice Carol Corrigan upped the ante on her colleague's hypothetical.
“If Justice Kruger and her suit of armor were covered up with a long cloak, the assailant might not be aware that she was so protected,” Corrigan said. “On the other hand, if she looks like someone from the Middle Ages – which she frequently does – and you go up to her with a sharpened pencil, you are aware of facts that stabbing her with a pencil is unlikely to cause her great bodily injury or death. Under some circumstances, a sharpened pencil can be a deadly weapon, but in that circumstance it would depend on where the stabbing motion occurred.”
Associate Justice Jonathan Renner, sitting on the case by designation from the state’s Third Appellate District, asked Mercer what could be changed to make the butter knife not a deadly weapon.
“Is it necessarily going to be a deadly weapon?” he asked.
Mercer said he wasn't sure, but that he would be hard pressed to find a scenario where it wouldn't be.
So should they should treat a butter knife like a dagger or a sword? Renner probed.
Not necessarily, Mercer said, but the “hot anger of this attack” could likely have resulted in great injury under Aguilar.
That, and the object at hand was a six-inch metal knife, which Chief Justice Tani Cantil-Sakauye noted Mercer kept coming back to.
“If it were a different object we’d be having a different discussion,” Mercer said.
Cantil-Sakauye said, “The fact that it isn’t inherently dangerous, don’t the facts make all the more difference because we are talking about an everyday household object and because assaults happen with all manner of handy objects nearby? Isn’t it really important that we look at the factual circumstances around the matter and less about the object itself?”
Mercer again noted this was a rage attack, in close proximity. “It seems like a pretty sincere effort to use a weapon to harm somebody,” he said.
But B.M.’s lawyer said the case doesn’t even reach the more likely than not standard.
“We’re not arguing that a butter knife can never be a deadly weapon,” said attorney Elizabeth Horowitz. “The likelihood prong is really at issue in this case.”
She pointed to another pending Supreme Court case, People v. Koback, where a defendant stole a set of car keys from a rental company and used them to menace the employees that confronted him.
Horowitz said Fourth Appellate District Justice Marsha Slough’s dissent in that case, in which she said judges should look at how the object was used, was correct. In this case, Horowitz said, B.M. only aimed the knife toward the bedding.
“Justice Slough put it well when she said courts should not speculate regarding the conduct of the defendant.” she said.
In other words, we know what the defendant did, but was it dangerous enough – given the circumstances and the object used – to qualify as a felony assault? According to Horowitz, is wasn't very dangerous.
“There has to be a sufficient showing that this was used in a manner that was highly dangerous,” she said. “I think the risk of injury in this case was very, very small.”
Her client could have picked up a steak knife but instead reached for a serrated butter knife which, aside from a Camembert spreader, is the most innocuous of all knives. She also stopped the attack on her own accord.
“I think it is disingenuous to say it was the blanket thwarted the attack here,” Horowitz said. “If you’re going to argue that it was a blanket that stopped the assault, that alone demonstrates that it couldn’t have been an incredibly forceful assault.”
The justices took the case under submission.
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