Metropolitan News-Enterprise


Tuesday, July 16, 2019


Page 1


Court of Appeal:

Man Who Cut Brake Lines ‘Used’ Jeep as Deadly Weapon


By a MetNews Staff Writer


A man who cut the brake lines of an parked automobile owned by a man he didn’t know was properly convicted of an assault with a deadly weapon although an element of the offense is a “use” of the weapon, Div. One of the Fourth District Court of Appeal held yesterday.

Defendant Spencer Alan Marsh was found guilty of crimes that included violating Penal Code §245(a)(1) which proscribes assaults using “a deadly weapon or instrument other than a firearm.” He contended that he did “use” the victim’s Jeep Grand Cherokee as a weapon because he did not drive it.

 Acting Presiding Justice Patricia D. Benke wrote the majority opinion. Justice Cynthia Aaron concurred in the result, only, as to one portion.

Johnson’s 2005 Opinion

Benke said the fact that the situation resembles that in the 2005 Court of Appeal in People v. Russell. There, then-Justice Earl Johnson Jr. of this district’s Div. Seven (now retired) said:

“In this case of first impression, we conclude a defendant who intentionally pushes another person into the path of an oncoming vehicle has used that vehicle as a ‘deadly weapon’ in violation of Penal Code section 245, subdivision (a)(1).”

He declared that there was no “relevant difference between one who wields a dangerous object and one who intentionally utilizes the deadly properties of a stationary or moving object for purposes of committing an assault” with a vehicle.

Benke’s View

Benke wrote:

“Like the Russell court, we decline to distinguish between one who controls or drives a vehicle in such a manner that the vehicle constitutes a deadly weapon for purposes of section 245(a)(1), and one who “intentionally utilizes” a vehicle’s potential deadly properties in a way likely to cause the victim great bodily harm, despite not taking possession or control of the vehicle him- or herself.”

The victim noticed puddles by his automobile, investigated, and detected the vandalism. Benke noted that he “not injured by defendant’s act, is of no consequence for purposes of the offense of assault with a deadly weapon.”

Instructional Error

Benke said that San Diego Superior Court Judge Albert T. Harutunian III erred in instructing the jury that a “deadly or dangerous weapon is any object, instrument, or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury.” Reference should not have been made to an “inherently deadly” weapon because a Jeep with severed brake lines cannot be so described, she set forth, but termed the error harmless.

The jurist elaborated:

“An object may be either inherently deadly or deadly as used….Some objects, like dirks and blackjacks, have been found inherently deadly as a matter of law….Other objects, like knives and box cutters, have been found not inherently dangerous as a matter of law….Because a motor vehicle is an object ‘commonly used for a nonviolent purpose’…that could qualify as dangerous when the surrounding circumstances indicate the possessor ‘used’ it in such a manner that it was likely to cause death or great bodily injury…, it did not qualify as inherently deadly weapon.”

On that point, Aaron disagreed, saying:

“I would conclude instead that an automobile that has had its brake lines severed constitutes an inherently deadly weapon and, on that basis, I would reject Marsh’s contentions on appeal.”

The case is People v. Marsh, 2019 S.O.S. 3369.


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