Metropolitan News-Enterprise


Thursday, July 19, 2018


Page 3


Car Key, Swung Once, Was Deadly Weapon—C.A.


By a MetNews Staff Writer


The Fourth District Court of Appeal has held that a man who swung a rental car key at a store employee once but did not hit him nevertheless used the key as a deadly weapon.

Acting Presiding Justice Art W. McKinster of Div. Two wrote the majority opinion, filed Tuesday partially certified for partial publication. He was joined by Justice Douglas P. Miller in upholding Brian K. Koback’s conviction for assault with a deadly weapon after a jury trial in Riverside Superior Court.

McKinster wrote:

“A car key is not an inherently deadly or dangerous weapon, but if wielded as a makeshift weapon with sufficient force at close range, as defendant did here, a key is capable of puncturing skin and causing serious bodily injury.”

Stolen Key

Koback had taken the key from the rental agency to which it belonged and walked out of the store. Three employees gave chase, and eventually cornered the man at a motel parking lot.

It was there that Koback turned to face them and swung at one of the employees, holding the key in his fist with the ignition end sticking out from between his fingers. His blow missed the man, who was pulled out of the way by another employee.

McKinster noted that the issue was “whether the weapon was used in a way that was likely to cause significant or substantial injury,” noting that it was a question of the amount of force used, not any actual injury caused.

He cited the facts of the assault, explaining that Koback, who was agitated and angry, could have continued swinging the key and possibly aimed for the employee’s face or neck.

“On this record,” he concluded, “a reasonable jury could conclude that defendant used the car key in such a way that it was capable of producing and likely to produce great bodily injury.”

Precedent Not Applied

Justice Marsha G. Slough wrote a dissenting opinion, in which she contended that the majority had not applied the “force-used test” from the 1997 California Supreme Court case People v. Aguilar.

She wrote:

“The majority pays lip service to Aguilar’s force-used test by citing it in their analysis, but they don’t actually apply it….Aguilar is binding California Supreme Court precedent we are required to follow.…The majority cannot escape this duty by applying a different test from a nonbinding lower court opinion that predates Aguilar.”

The force-used test, she explained, requires courts to look not only at whether an object is capable of being deadly, but how the defendant actually used the object.

She agreed that a car key was capable of causing great bodily injury but claimed the majority had focused “most of their analysis on this completely obvious and uncontested point,” and engaged in speculation rather than looking at Koback’s actual use of force.

She said:

“Whether Koback was enraged or simply scared and desperate is immaterial because it doesn’t tell us whether he swiped at the victim like Bruce Lee or a drunk. And the amount of force makes all the difference because Koback fled immediately after his single swipe and, as the photograph of the key shows, it is not sharp or jagged enough to cut skin with a single swipe unless wielded with extreme force….In other words, the jury may have had evidence of intent, but it did not have sufficient evidence of the nature of the act to convict Koback of aggravated assault.”

 The case is People v. Koback, E066674.


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