Metropolitan News-Enterprise


Friday, June 28, 2019


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Justice Accuses Colleagues of Evading California Supreme Court Decision

Majority Affirms Assault With a Deadly Weapon Conviction Based on Attack With Car Keys


By a MetNews Staff Writer


A man who menaced store employees with a set of car keys was properly convicted of assault with a deadly weapon, Div. Two of the Fourth District Court of Appeal declared yesterday in a majority opinion, with a dissenter accusing her colleagues of veering from the views expressed by the state Supreme Court.

The case was first decided on July 17, 2018, with Acting Presiding Justice Art McKinster writing for the majority in affirming the conviction and Justice Marsha G. Slough dissenting. The state Supreme Court granted review on Oct. 24, 2018, and then remanded the case for reconsideration in light of its Dec 27 decision in In re B.M.

In that case, it was held that a minor who made a stabbing motion at her sister’s legs with a butter knife had not used a deadly weapon.

Second Time

In yesterday’s dissent, Slough said:

“For the second time, my colleagues refuse to follow the clear direction of the California Supreme Court in determining whether a person has used an everyday object in a manner ‘likely to produce death or great bodily injury’ such that  they [sic] may be convicted of assault with a deadly weapon. …Our Supreme Court vacated the majority’s prior opinion after clarifying that standard in In re B.M….Undeterred, my colleagues reach the same result on remand, by distorting the trial record and misreading B.M. as holding death or serious injury is ‘likely’ if there is ‘more than a mere possibility’ of its occurrence.”

Reversal Compulsory

She maintained that B.M. “requires us to reverse” the conviction of defendant Brian Koback for assault with a deadly weapon, insisting he committed only a simple assault (as well as other offenses). She commented:

“The key was not sharp and there’s no evidence how hard he swung it, in part because he didn’t make contact with the victim.”

The jurist went on to say:

“What our case boils down to is a single swipe of a car key at a person’s clothed midsection from a few feet away with unknown force.  No other court has upheld an aggravated assault conviction on such thin evidence.”

McKinster’s Opinion

As McKinister saw it, although car keys are “not inherently deadly or dangerous,” Koback used them “in a manner capable of causing and likely to result in serious bodily injury.”

Koback, at a rental car company, snatched a set of keys, was followed by employees who confronted him, and he swung at them with the sharp end of the key outward, swiping at the torso of one of them.

McKinister said:

“Viewing the evidence in the light most favorable to the judgment, as we must, we again conclude defendant used the car key in a manner capable of causing and likely to result in great bodily injury.”

First District Case

He likened the factual situation to that in People v. Simons decided by the First District Court of Appeal in 1996. The defendant held police officers off with a screwdriver, and his conviction for exhibiting a deadly weapon was upheld.

“Like a screwdriver,” McKinister wrote, “a car key is not an inherently deadly weapon. But like the defendant in Simons, who used the screwdriver to keep police officers at bay, defendant swung the key to keep the three rental car company employees at bay.”

Slough distinguished Simons on the basis of the charge there being exhibiting a deadly weapon, not committing an assault with it, and pointed to other reasons for questioning its applicability.

The case is People v. Koback, 2019 S.O.S. 3064.


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