People v. Koback

the minutes and abstract of judgment would accurately reflect whatever sentence the court imposed on remand.

The California Supreme Court granted defendant's petition for review on the issue of the sufficiency of the evidence to support his conviction for assault with a deadly weapon. The Supreme Court subsequently transferred the appeal back to this court with directions to vacate our prior opinion and reconsider the appeal in light of In re B.M. (2018) 6 Cal.5th 528 , 241 Cal.Rptr.3d 543 , 431 P.3d 1180 ( B.M. ). ( People v. Koback (2019) --- Cal.5th ----, 244 Cal.Rptr.3d 871 , 436 P.3d 898 .) We have vacated our prior opinion and received supplemental briefs from the parties addressing the impact of B.M. on this case.

We once again affirm defendant's conviction for assault with a deadly weapon, reverse the sentence, and again remand for the trial court to resentence defendant and to consider in the first instance whether to impose concurrent sentences on counts 2 and 3.

I

n an information, the People charged defendant with assault with a deadly weapon other than a firearm, to wit, a key ( Pen. Code, § 245, subd. (a)(1), count 1); robbery ( Pen. Code, § 211, count 2); and (3) resisting arrest ( Pen. Code, § 69, count 3). The People alleged defendant suffered two prior prison terms ( Pen. Code, § 667.5, subd. (b) ), to wit: a 2013 conviction for possessing a controlled substance ( Health & Saf. Code, § 11377, subd. (a) ) and a 2011 conviction for attempted carjacking ( Pen. Code, §§ 664, 215 ). Finally, the People alleged defendant's 2011 conviction for attempted carjacking was a serious felony and a serious and violent felony. ( Pen. Code, §§ 667, subds. (a), (c), (e)(1), 1170.12, subd. (c)(1).)

A jury found defendant guilty on all three counts. In a bifurcated proceeding, defendant admitted his 2011 conviction for attempted carjacking was a strike. The trial court sentenced defendant to a total term of 14 years four months in state prison.

Defendant timely appealed.

by substantial evidence because he did not use the car keys-an object that is not inherently deadly or dangerous-in a manner capable of causing and likely to result in serious bodily injury. On this record, we conclude defendant did, in fact, use the car keys as a deadly weapon.

just before the attack, covered herself with a blanket. The knife did not penetrate the blanket or cause any injury, and the sister testified the pressure she felt from the knife was five or six on a scale of one to 10. ( Id. at p. 531, 241 Cal.Rptr.3d 543 , 431 P.3d 1180 .) The juvenile court sustained an allegation the minor committed an assault with a deadly weapon. ( Id. at pp. 531-532, 241 Cal.Rptr.3d 543 , 431 P.3d 1180 .) The Court of Appeal affirmed, reasoning, " '[i]t matters not that [the sister] was able to fend off great bodily injury with her blanket' or 'that [B.M.] was not adept at using a knife' because B.M. 'could have easily inflicted great bodily injury with this metal butter knife and just as easily [could] have committed mayhem upon the victim's face.' " ( Id. at p. 532, 241 Cal.Rptr.3d 543 , 431 P.3d 1180 .) The appellate court expressly disagreed with In re Brandon T. (2011) 191 Cal.App.4th 1491 , 120 Cal.Rptr.3d 637 , which had held a butter knife with a round end and serrated edge was not used as a deadly weapon when a minor made a slashing motion to the victim's cheek and throat with sufficient force to cause the blade of the butter knife to break, caused welts and scratches to the victim, but did not draw blood. ( Id. at pp. 1496-1498, 120 Cal.Rptr.3d 637 .)

In B.M. , supra , 6 Cal.5th 528 , 241 Cal.Rptr.3d 543 , 431 P.3d 1180 , the Supreme Court clarified the law with respect to assault with a deadly weapon when the object used is not an inherently deadly weapon and distilled three principles to be applied in such cases:

"First, the object alleged to be a deadly weapon must be used in a manner that is not only 'capable of producing' but also ' " likely to produce death or great bodily injury." ' ( Aguilar , supra , 16 Cal.4th at p. 1029 [ 68 Cal.Rptr.2d 655 , 945 P.2d 1204 ], italics added.)" ( B.M. , supra , 6 Cal.5th at p. 533, 241 Cal.Rptr.3d 543 , 431 P.3d 1180 .) The court rejected the Attorney General's argument " 'capable of producing' and 'likely to produce' are essentially the same because the term ' "likel[y]" ' has the same meaning as ' "possib[le]." ' " ( Ibid. ) Citing dictionaries (see discussion of B.M. 's concurring opinion, post ), the court stated the Attorney General's definition was "at odds with the ordinary meaning of 'likely.' " ( Ibid. ) And citing decisions holding felony child abuse " 'likely to produce great bodily harm or death' " (§ 273a) refers to abuse in situations where the probability of serious injury is great, the court indicated the Attorney General's definition "is also inconsistent with how we have treated the term 'likely to produce bodily harm or death' elsewhere in the Penal Code." ( B.M. , at p. 533, 241 Cal.Rptr.3d 543 , 431 P.3d 1180 .)

deadly weapon under section 245 [, subdivision ](a)(1) must rest on evidence of how the defendant actually 'used' the object." ( B.M. , supra , 6 Cal.5th at p. 534, 241 Cal.Rptr.3d 543 , 431 P.3d 1180 .) " '[E]xcept in those cases involving an inherently deadly weapon[,] the jury's decisionmaking process in an aggravated assault case ... is functionally identical regardless of whether ... the defendant employed a weapon alleged to be deadly as used or employed force likely to produce great bodily injury; in either instance, the decision turns on the nature of the force used.' " ( Id. at p. 535, 241 Cal.Rptr.3d 543 , 431 P.3d 1180 .)

Although the Supreme Court held "it is inappropriate to consider how the object could have been used as opposed to how it was actually used," the court made clear "it is appropriate in the deadly weapon inquiry to consider what harm could have resulted from the way the object was actually used. Analysis of whether the defendant's manner of using the object was likely to produce death or great bodily injury necessarily calls for an assessment of potential harm in light of the evidence. As noted, a mere possibility of serious injury is not enough. But the evidence may show that serious injury was likely, even if it did not come to pass." ( B.M. , supra , 6 Cal.5th at p. 535, 241 Cal.Rptr.3d 543 , 431 P.3d 1180 , italics added.) The Supreme Court faulted the Court of Appeal for engaging in conjecture by stating B.M. might have committed mayhem on the victim's face. "There is no evidence that B.M. stabbed, sliced, or pointed the butter knife toward or near [her sister's] face, or that B.M. attempted or threatened to do so. Nor is there evidence that B.M. was flailing her hand with the butter knife or otherwise wielding it wildly or uncontrollably. (Cf. People v. Simons (1996) 42 Cal.App.4th 1100 , 1106 [ 50 Cal.Rptr.2d 351 ]... ( Simons ).)" ( Ibid. ; see id. at p. 538, 241 Cal.Rptr.3d 543 , 431 P.3d 1180 [rejecting the Court of Appeal's statement it was through sheer luck the sister was not injured, stating, "the inquiry must focus on the evidence of how B.M. actually used the knife, not on various conjectures as to how she could have used it"].)

with a blanket. There is no evidence that B.M. used or attempted to use the knife in the area of [her sister's] head, face, or neck, or any exposed part of her body." ( Ibid. ) "[And] [t]hird, the moderate pressure that B.M. applied with the knife was insufficient to pierce the blanket, much less cause serious bodily injury to [her sister]." ( Ibid. )

The Supreme Court rejected the Attorney General's argument the sister could have been seriously injured had she not defended herself by covering herself with a blanket. "[T]here is no evidence indicating [the sister] pulled the blanket over her legs after or in reaction to seeing B.M. begin a slicing or stabbing motion directed at [her] exposed legs.... Further, ... nothing in the record suggests that B.M., who was aware that [her sister's] legs were covered and that the knife was not penetrating the blanket, then used or tried to use the knife on an exposed part of [her sister's] body." ( B.M. , supra , 6 Cal.5th at p. 537, 241 Cal.Rptr.3d 543 , 431 P.3d 1180 , italics added.) Relevant here, the court stated, "To be sure, an aggressor should not receive the benefit of a potential victim fortuitously taking a defensive measure or being removed from harm's way once an assault is already underway. But the facts known to the aggressor before the assault, including defensive measures taken by the victim, are relevant to determining whether the aggressor used an object in a manner likely to cause serious injury." ( Ibid. , italics added.)

The Supreme Court also rejected the Attorney General's argument "that 'an object can be a deadly weapon even if there is no contact or injury, and

"Indeed, such a holding would be inconsistent with the majority's citations to In re D.T. (2015) 237 Cal.App.4th 693 [ 188 Cal.Rptr.3d 273 ]..., People v. Page (2004) 123 Cal.App.4th 1466 [ 20 Cal.Rptr.3d 857 ]..., and People v. Simons (1996) 42 Cal.App.4th 1100 [ 50 Cal.Rptr.2d 351 ].... (See maj. opn., ante , at p. 538 [ 241 Cal.Rptr.3d 543 , 431 P.3d 1180 ].) Those cases all involved the use of a sharp object in a threatening manner, and in all three cases an argument could be made that great bodily injury was not probable , but the deadly weapon finding was nonetheless upheld." ( B.M. , at pp. 539-540, 241 Cal.Rptr.3d 543 , 431 P.3d 1180 (conc. opn. of Chin, J.).)

Finally, Justice Chin suggested that, when the Supreme Court does squarely address the meaning of " 'likely' " for purposes of assault with a deadly weapon, "our resolution of the question [will] call[ ] for a careful analysis like the one that appears in People v. Superior Court ( Ghilotti ) (2002) 27 Cal.4th 888 [ 119 Cal.Rptr.2d 1 , 44 P.3d 949 ]..., a decision involving the meaning of the word 'likely' in the Sexually Violent Predators Act ( Welf. & Inst. Code, § 6600 et seq. ), which refers to persons 'likely to engage in acts of sexual violence' ( id. , § 6601, subd. (d).) That opinion shows that, in the

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. As with Simons , defendant did not actually strike Agustin so there were no resultant injuries. But, as the Supreme Court made clear in B.M. , we may consider the injuries that likely would have resulted from the way defendant actually used the key. ( B.M. , supra , 6 Cal.5th at p. 535, 241 Cal.Rptr.3d 543 , 431 P.3d 1180 .) Whereas in B.M. the minor stabbed her sister on her legs, which were covered with a blanket, the defendant in Simons wildly and uncontrollably flailed the screwdriver at officers who were presumably clothed in standard police uniforms.

court found a minor committed an assault with a deadly weapon when he poked a classmate in the back with the sharp end of a pocketknife. The victim testified, "[t]he knife felt 'sharp' and

strike the strike for those counts." Counsel stated she was not asking the court to strike the strike. The court then stated, "I think it has to be consecutive unless I strike the strike. I can do that for those subsequent counts[, i.e., counts 1 and 3], impose it one time [on count 1] then strike it."

The trial court designated count 2 as the principal count, and sentenced defendant to the middle term of three years, doubled pursuant to the one strike law, for a term of six years in state prison. On count 1, the trial court sentenced defendant to one-third the middle term of three years. But rather than strike the strike conviction, the court doubled the term pursuant to the one strike law for a term of two years in state prison to run consecutively to count 2. Similarly, the trial court sentenced defendant to one-third the middle term of two years on count 3, doubled pursuant to the one strike law, for a term of one year four months in state prison to be served consecutively to count 2. Finally, the trial court imposed a five-year sentence enhancement for defendant's prior serious felony conviction, to be served consecutively to count 2, for a total term of 14 years four months in state prison.

"If there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts , the court shall sentence the defendant consecutively on each count ...." ( §§ 667, subd. (c)(6), 1170.12, subd. (a)(6), italics added.) Under the plain language of the statutes, the trial court has no discretion to sentence a defendant to concurrent sentences under the three strikes law when the current felony convictions were not committed on the same occasion or did not arise from the same operative facts. In that situation, consecutive sentences are mandatory. ( People v. Hojnowski (2014) 228 Cal.App.4th 794 , 800, 175 Cal.Rptr.3d 706 .) But the trial court has discretion to impose concurrent sentences if it concludes the current convictions were committed on the same occasion or did arise from the same operative facts ( People v. Casper (2004) 33 Cal.4th 38 , 42, 14 Cal.Rptr.3d 43 , 90 P.3d 1203 ), unless a consecutive sentence is otherwise mandated by another statute ( People v. Torres (2018) 23 Cal.App.5th 185 , 198, 232 Cal.Rptr.3d 614 ).

As noted, the trial court indicated it believed it could impose concurrent sentences on counts 1 and 3 only if it first struck defendant's strike conviction. The People contend the record does not affirmatively demonstrate

committed on the same occasion or did arise out of the same operative facts. According to the People, the record supports the trial court's implied findings that the current offenses were not all committed on the same occasion or did not arise from the same operative facts.

We might be inclined to apply the doctrine of implied findings but for the fact the trial court sentenced defendant under the clear misapprehension that striking a strike was the only way to impose a concurrent sentence, and there is no indication whatsoever the court implicitly concluded the crimes were not committed on the same occasion and did not arise from the same operative facts. Although we agree with the People that arguably defendant's offenses of robbery and resisting arrest were not committed on the same occasion and did not arise from the same set of operative facts, it is a much closer call with respect to his offenses of robbery and assault with a deadly weapon. Such a determination is much better left to the trial court in the first instance.

C. Errors in the Minute Order from Sentencing and Abstract of Judgment.

Defendant argues, and the People agree, there is an error in the minute order from the sentencing hearing regarding his prior felony admission. The People originally alleged defendant had suffered two prior felony convictions: a 2013 conviction for possession of a controlled substance and a 2011 strike conviction for attempted carjacking. At the sentencing hearing, however, the prosecution pursued only the prior conviction for carjacking after agreeing

true), the probation department recommended the trial court impose restitution and parole revocation fines in the amount of $3,600 each, using the formula set forth in section 1202.4, subdivision (b)(1) (minimum fine ($300) x years in prison (4) x number of convictions (3) = $3,600).

With the exception of the one-year enhancement for the alleged prison prior, that defendant did not admit, the trial court followed the probation department's recommendation for sentencing. It did not, however, impose the recommended restitution and parole revocation fines. The court plainly stated on the record, "I shall impose a minimum restitution fine and other fines." Yet, the minutes from sentencing and the abstract of judgment both indicate defendant was ordered to pay a restitution fine of $3,600 and a parole revocation fine of $3,600. This was plainly in error. As noted, the minimum restitution and parole revocation fine is $300. (§§ 1202.4, subd. (b)(1), 1202.45, subd. (a).)

Pen. Code, § 245, subd. (a)(1) ; People v. Aguilar (1997) 16 Cal.4th 1023 , 1029, 68 Cal.Rptr.2d 655 , 945 P.2d 1204 ( Aguilar ).) Our Supreme Court vacated the majority's prior opinion after clarifying that standard in In re B.M. (2018) 6 Cal.5th 528 , 241 Cal.Rptr.3d 543 , 431 P.3d 1180 ( 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. (Maj. opn. ante , at p. 860.) I dissent.

The issue we face is whether Brian Koback used a car key as a deadly weapon when he swung it once with unknown force at the victim's torso from a few feet away and missed. After the majority initially upheld Koback's conviction based on speculation about how a key could be used as a deadly weapon, our Supreme Court directed us to reconsider this question in light of B.M. , in which the Court reaffirmed the Aguilar standard and held: "[S]peculation without record support as to how the object could have been used or what injury might have been inflicted if the object had been used differently is not appropriate," rather "the determination of whether an object is a deadly weapon ... must rest on evidence of how the defendant actually 'used' the object." ( B.M. , supra , 6 Cal.5th at pp. 530, 534, 241 Cal.Rptr.3d 543 , 431 P.3d 1180 , italics added.) Although the Court did not provide a precise definition of "likely," it did note the ordinary dictionary meaning of the word is " 'having a high probability' " or " 'very probable,' " and that it has been defined in other criminal contexts as having a " 'probability [that is] great.' " ( Id. at pp. 533-534, 241 Cal.Rptr.3d 543 , 431 P.3d 1180 .)

I believe B.M. requires us to reverse Koback's conviction. As in that case, the evidence of how Koback used the key is insufficient to support a conclusion that death or serious injury was likely to result "[u]nder any plausible interpretation of the term 'likely.' " ( B.M. , supra , 6 Cal.5th at p. 536, 241 Cal.Rptr.3d 543 , 431 P.3d 1180 .) 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.

To avoid this outcome, the majority conclude "likely" means only "more than a mere possibility," and apply the standard in People v. Simons (1996) 42 Cal.App.4th 1100 , 50 Cal.Rptr.2d 351 ( Simons )-a pre- Aguilar appellate court opinion involving the offense of exhibiting a deadly weapon to evade arrest. Analogizing to the facts of Simons , the majority conclude there was "more than a mere possibility" the victim would have been seriously injured if the key had made contact with him, because Koback "swung the key to keep [him] ... at bay," just like the defendant in Simons "who used [a] screwdriver to keep police officers at bay." (Maj. opn. ante , at p. 860.) Because the crime of exhibiting a deadly weapon to evade arrest does not

swing to conjure a sense he acted "wildly or uncontrollably." ( B.M. , supra , 6 Cal.5th at p. 535, 241 Cal.Rptr.3d 543 , 431 P.3d 1180 .) Thus, they say he " 'lunged,' 'charged,' or 'came at' " the victim and, " 'with force,' 'swung,' 'swiped,' or 'punch[ed]' the key at [his] torso. " (Maj. opn. ante , at pp. 859-60.) In fact, there was only a single swipe, which Koback delivered with unknown force before fleeing. If the "moderate" force B.M. used to repeatedly stab her sister's legs with a butter knife is insufficient to constitute assault with a deadly weapon, swinging a key once with some unknown degree of force is too. ( B.M. , at p. 536, 241 Cal.Rptr.3d 543 , 431 P.3d 1180 .)

The more egregious error, though, is that the majority define "likely" as "more than a mere possibility." (Maj. opn. ante , at p. 860.) Possible means having more than a zero percent likelihood of occurring. (See Webster's 9th New Collegiate Dict. (1991) p. 918 [defining "possible" as "being within the limits of ... realization"].) Thus, under today's holding, an event with an extremely low likelihood (say, two or three percent) would be likely simply because its probability of occurring is more than just possible. In other words, so long as an occurrence is not im possible, it's likely. One doesn't need a degree in statistics to know this is an incorrect definition of likely. Indeed, defining likely in this way essentially turns Aguilar's likelihood standard into a question of whether the object is capable of causing serious injury, which promotes the very error our Supreme Court identified in B.M. - upholding aggravated assault convictions based on speculation "as to how the object could have been used or what injury might have been inflicted if the object had been used differently." ( B.M. , supra , 6 Cal.5th at p. 530, 241 Cal.Rptr.3d 543 , 431 P.3d 1180 , italics added.)

This error calls out for correction and underscores the fact that lower courts need guidance on the likelihood standard. The guidance is important. For Koback and others in his position, the likelihood standard determines not only whether they will be convicted of simple or aggravated assault, but also whether they'll have a strike offense on their record, with all the consequences that entails. ( Pen. Code, §§ 667, 1192.7.) As I said in my previous dissent, it is critical we maintain the distinction between likelihood and

person could do serious damage with a butter knife or a golf club.

The second part of the test, likelihood, focuses on how the defendant actually used the object. This inquiry "turns on the nature of the force used." ( Aguilar , supra , 16 Cal.4th at p. 1035, 68 Cal.Rptr.2d 655 , 945 P.2d 1204 ) Objects that can "be grasped while throwing a punch, like rolls of coins, batteries, [ ] bicycle footrests," (or car keys), may "be deemed instruments of [aggravated] assault" only if there is "sufficient proof" the object was actually used "in a manner likely to produce death or great bodily injury." ( In re David V. (2010) 48 Cal.4th 23 , 30 & fn. 5, 104 Cal.Rptr.3d 471 , 223 P.3d 603 , quoting Aguilar , at p. 1029, 68 Cal.Rptr.2d 655 , 945 P.2d 1204 , italics added.) The difference between the capability and likelihood standards is the difference between swinging a nine iron at someone's head or shoving them in the shoulder with it. The club is certainly capable of causing severe injury, but only in the former example is it also likely to cause severe injury as used.

"[A]ll aggravated assaults are ultimately determined based on the force likely to be applied against a person." ( Aguilar , supra , 16 Cal.4th at p. 1035, 68 Cal.Rptr.2d 655 , 945 P.2d 1204 , italics added.) If, however, the object is an inherently dangerous weapon, we treat it as a deadly weapon as a matter of law, meaning its mere use in an assault is sufficient to violate section 245(a)(1). ( Aguilar , at p. 1029, 68 Cal.Rptr.2d 655 , 945 P.2d 1204 ["[s]ome few objects, such as dirks and blackjacks, have been held to be deadly weapons as a matter of law; the ordinary use for which they are designed establishes their character as such].) Requiring a likelihood standard for

that "speculation without record support as to how the object could have been used or what injury might have been inflicted if the object had been used differently is not appropriate." ( B.M. , supra , 6 Cal.5th at p. 530, 241 Cal.Rptr.3d 543 , 431 P.3d 1180 .) The Court clarified, "the Aguilar standard does not permit conjecture as to how the object could have been used," rather "the inquiry focuses on 'the force actually used. ' " ( Id. at p. 534, 241 Cal.Rptr.3d 543 , 431 P.3d 1180 .)

The Court cited People v. Beasley (2003) 105 Cal.App.4th 1078 , 130 Cal.Rptr.2d 717 ( Beasley ) and People v. Duke (1985) 174 Cal.App.3d 296 , 219 Cal.Rptr. 873 ( Duke ) as instructive in applying Aguilar's likelihood standard. ( B.M. , supra , 6 Cal.5th at p. 534, 241 Cal.Rptr.3d 543 , 431 P.3d 1180 .) In Beasley , the victim testified the defendant had used a broomstick to "beat [her] like he never [had] ... before" and the prosecution submitted photographs of her bruised arms and shoulders to illustrate the extent of her injuries. ( Beasley , at p. 1087, 130 Cal.Rptr.2d 717 .) The court found it "certainly conceivable" a broomstick "might be wielded in a manner capable of producing, and likely to produce, great bodily injury," but

applied only "moderate pressure" and had caused no injury. ( Id. at pp. 536-537, 241 Cal.Rptr.3d 543 , 431 P.3d 1180 .) The Court concluded this evidence was insufficient to establish a likelihood of serious injury "[u]nder any plausible interpretation of the term 'likely.' " ( Id. at p. 536, 241 Cal.Rptr.3d 543 , 431 P.3d 1180 .)

The Court's conclusion made it unnecessary to define "likely" in the Aguilar context. The Attorney General offered two definitions-that "likely to produce" serious injury means "essentially the same" thing as "capable of producing" serious injury, or that an object is "likely to produce" serious injury if its use in an assault " increased the likelihood of serious

"are relevant facts for consideration in determining whether an object was used in a manner capable of producing and likely to produce great bodily injury"] italics added.)

This should be the end of our inquiry, but the majority bypass the on-point analyses in B.M. , Beasley , and Duke , and turn instead to Simons. (Maj. opn. ante , at pp. 859-60.) In Simons , the defendant thrashed a screwdriver at a group of police officers while ordering them to stay back and threatening to stab their dog. ( Simons , supra , 42 Cal.App.4th at p. 1106, 50 Cal.Rptr.2d 351 .) Only after a physical struggle with defendant, during which the officers threw a chair at him, were they able to disarm him of the screwdriver and arrest him. ( Ibid. ) On appeal, defendant challenged his section 417.8 conviction for exhibiting a deadly weapon to evade arrest on the ground that a screwdriver did not qualify as a deadly weapon under that statutory provision. The court rejected this argument and affirmed the conviction, concluding that a screwdriver was certainly capable of being a deadly weapon if used to stab and the

The second, and more fundamental, problem with relying on Simons is that case doesn't apply the relevant test-whether an assault with an everyday object involved force likely to produce serious injury. This is because Simons

midsection from a few feet away with unknown force. No other court has upheld an aggravated assault conviction on such thin evidence. A survey of the published cases where everyday items were found to have been used in a manner likely to kill or severely injure is illustrative of what an aberration this case is. In People v. Russell (1943) 59 Cal.App.2d 660 , 139 P.2d 661 , the defendant used a fingernail file to slash the victim's face, causing a large gash requiring 11 stitches. In People v. White (1963) 212 Cal.App.2d 464 , 28 Cal.Rptr. 67 , the defendant bashed the victim's head with a rock, causing a two-inch gouge that penetrated "through all layers of the scalp ... to the bone." ( Id. at p. 465, 28 Cal.Rptr. 67 .) In People v. Helms (1966) 242 Cal.App.2d 476 , 51 Cal.Rptr. 484 , the defendant smothered the victim's face with a pillow "for several minutes." ( Id. at p. 478, 51 Cal.Rptr. 484 .) In People v. Richardson (1959) 176 Cal.App.2d 238 , 1 Cal.Rptr. 306 , the defendant repeatedly slashed the victim's face and head with a razor blade, causing cuts that required 25 to 30 sutures. In People v. Lee (1937) 23 Cal.App.2d 168 , 72 P.2d 572 , the defendant hit the victim "several times over the head" with a pipe. ( Id. at p. 169, 72 P.2d 572 .)

I realize comparison to cases with stronger facts can be of limited value in a substantial evidence review, however I believe these cases demonstrate what constitutes sufficient evidence of force in cases of aggravated assault with everyday objects. In each, the object was actually used in a manner likely to produce great bodily injury. And in most, the victims sustained injuries. Given Koback swung once at Agustin's clothed torso from a few feet away, he would have had to use quite a great deal of force to seriously injure Agustin with the short portion of the ignition end that protruded from his knuckles. The trial testimony is simply insufficient to show he did (or even could ) swing with such force.

I have found only one aggravated assault case where the everyday item held to have been used as a deadly weapon never made contact with the victim , and that case is easily distinguishable. In In re Jose R. (1982) 137 Cal.App.3d 269 , 186 Cal.Rptr. 898 , the defendant stuck a metal pin inside an apple and gave it to his teacher, but fortunately another student warned the teacher before she could eat it. ( Id. at p. 274, 186 Cal.Rptr. 898 .) At trial, a medical expert testified about the severe injuries and infections that could have resulted from ingesting that particular pin. She also opined ingestion could have been fatal. ( Id. at p. 276, 186 Cal.Rptr. 898 .) Based on that evidence, the court held the defendant had used the pin as a deadly weapon because, had the teacher ingested it as planned, she would have suffered grave injury. ( Ibid. ) Here, in contrast, the record

mere possibility," it was not articulating a definition of likely, it was rejecting the Attorney General's proposed definition. ( B.M. , at p. 534, 241 Cal.Rptr.3d 543 , 431 P.3d 1180 [rejecting argument that "likely" means merely "possible"]; see also id. at p. 535, 241 Cal.Rptr.3d 543 , 431 P.3d 1180 ["a mere possibility of serious injury is not enough"].) In other words, saying a mere possibility is not enough does not tell us how much is enough. As Justice Chin pointed out in his concurrence, the Court has not defined "likely" under Aguilar. ( B.M. , at p. 540, 241 Cal.Rptr.3d 543 , 431 P.3d 1180 (conc. opn. of Chin J.).) But the Court has not left us completely in the dark as to the term's meaning. In rejecting the idea that likely means possible, B.M. cites three other definitions of the word-" 'very probable,' " " 'having a high probability,' " and having a " 'great' " probability. ( B.M. , at pp. 533-534, 241 Cal.Rptr.3d 543 , 431 P.3d 1180 .) The fact that all of these convey a degree of probability much higher than the majority's definition is strong indication they have misread B.M.

CONCLUSION

Today's holding eviscerates Aguilar's likelihood standard and ignores the Court's direction in B.M. The result is that a person who committed simple assault is being punished for assault with a deadly weapon. I would reverse Koback's conviction to the lesser included offense supported by the evidence. ( Beasley , supra , 105 Cal.App.4th at p. 1088, 130 Cal.Rptr.2d 717 .)

D

efendant Brian Keith Koback walked into a rental car company office and stole a set of car keys. When confronted by three employees in the parking lot, defendant told the men to back off or he would "fuck" them up. He then walked across the street. Undeterred, the three employees followed defendant to a motel parking lot where they again confronted him and demanded defendant return the keys. Defendant made a tight fist around one of the key fobs, so the ignition portion of the key was sticking out between his knuckles and, from within arm's reach, lunged at one of the employees while swiping or swinging at the employee's torso. Defendant did not make contact. When the employees backed off, defendant jumped a fence and tried to flee. Police officers arrived and pursued defendant. Officers subdued defendant after a brief struggle, during which three of the officers suffered minor injuries.

Defendant was charged with and convicted of robbery, assault with a deadly weapon, and resisting arrest. Defendant admitted he had suffered a strike conviction, and the trial court sentenced him to state prison for 14 years four months. On appeal, defendant argues: (1) his conviction for assault with a deadly weapon is not supported by substantial evidence because there is no evidence he used the car keys in a manner that was capable of inflicting and likely to cause great bodily injury; (2) the trial court abused its discretion by imposing consecutive sentences on the robbery and resisting arrest counts, under the mistaken belief it could only impose concurrent sentences if it struck defendant's strike prior; (3) the minutes of sentencing and abstract of judgment do not accurately reflect the oral pronouncement of sentence with respect to restitution and parole revocation fines; and (4) the minutes of sentencing contain a clerical error because they state defendant admitted two strike priors instead of one.

In the published portion of our prior opinion, we concluded defendant's conviction for assault with a deadly weapon was supported by substantial evidence. ( People v. Koback (2018) 25 Cal.App.5th 323 , review granted Oct. 24, 2018, S250870.) In the unpublished portion of our prior opinion, we held the trial court erred when it concluded the only way it could impose concurrent sentences on defendant's robbery and resisting arrest convictions was if it first struck defendant's admitted strike prior. We reversed the sentence and remanded for the trial court to resentence

defendant and to consider in the first instance whether concurrent sentencing is appropriate in this case. Because we reversed the sentence, we left it to the trial court on remand and the Department of Corrections and Rehabilitation to ensure

1. Standard of review.

Our standard of review is well settled. "We ' " 'must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' " ' " ( People v. Brooks (2017) 3 Cal.5th 1 , 57, 219 Cal.Rptr.3d 331 , 396 P.3d 480 ; see B.M. , supra , 6 Cal.5th at pp. 536, 539, 241 Cal.Rptr.3d 543 , 431 P.3d 1180 .)

" ' " 'Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendant's guilt beyond a reasonable doubt. " 'If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.' " ' " ' " ( People v. Harris (2013) 57 Cal.4th 804 , 849-850, 161 Cal.Rptr.3d 364 , 306 P.3d 1195 .) " 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' " ( People v. Albillar (2010) 51 Cal.4th 47 , 60, 119 Cal.Rptr.3d 415 , 244 P.3d 1062 .)

" 'A reversal for insufficient evidence "is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support' " the jury's verdict.' " ( People v. Manibusan (2013) 58 Cal.4th 40 , 87, 165 Cal.Rptr.3d 1 , 314 P.3d 1 .)

2. Applicable law.

"Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm shall be punished by imprisonment in the sate prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment." ( Pen. Code, § 245, subd. (a)(1) ; all undesignated statutory references are to the Penal Code.)

"As used in section 245, subdivision (a)(1), a 'deadly weapon' is 'any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury.' [Citation.] Some few objects, such as dirks and blackjacks, have been held to be deadly weapons as a matter of law; the ordinary use for which they are designed established their character as such. [Citation.] Other objects, while not deadly per se, may be used, under certain circumstances, in a manner likely to produce death or great bodily injury. In determining whether an

object not inherently deadly or dangerous is used as such, the trier of fact may consider the nature of the object, the manner in which it is used, and all other facts relevant to the issue." ( People v. Aguilar (1997) 16 Cal.4th 1023 , 1028-1029, 68 Cal.Rptr.2d 655 , 945 P.2d 1204 ( Aguilar ).)

The minor in B.M. , supra , 6 Cal.5th 528 , 241 Cal.Rptr.3d 543 , 431 P.3d 1180 , took a six-inch "butter knife" with small ridges on one edge and made a few downward stabbing motions at her sister's legs. The sister was wearing nothing but a bath towel and,

The Supreme Court also rejected the Attorney General's assertion an object is likely to produce death or great bodily injury if its use " ' "in an assault increases the likelihood of great bodily injury." ' " ( B.M. , supra , 6 Cal.5th at p. 534, 241 Cal.Rptr.3d 543 , 431 P.3d 1180 .) "[T]he fact that B.M.'s use of a butter knife may have increased the likelihood of serious injury does not establish that her use of the object was likely to cause serious injury. An increase in likelihood from impossible to unlikely, for example, does not show that the object was likely to cause serious harm. The use of an object in a manner 'likely to produce' death or great bodily injury [citation] requires more than a mere possibility that serious injury could have resulted from the way the object was used." ( Id. at p. 534, 241 Cal.Rptr.3d 543 , 431 P.3d 1180 .)

"Second, the Aguilar standard does not permit conjecture as to how the object could have been used. Rather, the determination of whether an object is a

"Third, although it is appropriate to consider the injury that could have resulted from the way the object was used," the Supreme Court cautioned "the extent of actual injury or lack of injury is also relevant." ( B.M. , supra , 6 Cal.5th at p. 535, 241 Cal.Rptr.3d 543 , 431 P.3d 1180 .) A conviction for assault with a deadly weapon does not require evidence of actual injury or contact, "but limited injury or lack of injury may suggest that the nature of the object or the way it was used was not capable of producing or likely to produce death or serious harm." ( Ibid. )

Applying those three principles, the Supreme Court concluded the evidence did not support a finding B.M. used the butter knife in a manner likely to produce death or great bodily injury. ( B.M. , supra , 6 Cal.5th at pp. 536, 539, 241 Cal.Rptr.3d 543 , 431 P.3d 1180 .) The court stated three circumstances supported its conclusion: "First, the record indicates the six-inch metal knife B.M. used was '[t]he type of knife that you would use to butter a piece of toast'; it was not sharp and had slight ridges on one edge of the blade. (See Brandon T. , supra , 191 Cal.App.4th at pp. 1496-1498 [ 120 Cal.Rptr.3d 637 ] [butter knife with 'rounded end' was incapable of causing serious injury even when applied to the victim's face with enough force to break the knife]; [ In re ] D.T. [ (2015) ] 237 Cal.App.4th [693,] 701 [ 188 Cal.Rptr.3d 273 ] [contrasting the butter knife in Brandon T. with a sharp pocketknife].)" ( B.M. , at p. 536, 241 Cal.Rptr.3d 543 , 431 P.3d 1180 .) "Second, B.M. used the knife only on [her sister's] legs, which were covered

" 'even if it's not actually used with deadly force.' " ' " ( B.M. , supra , 6 Cal.5th at p. 538, 241 Cal.Rptr.3d 543 , 431 P.3d 1180 .) The court noted the cases the Attorney General cited "involved a sharp object applied to a vulnerable part of the body ( D.T. , supra , 237 Cal.App.4th at pp. 697, 696 [ 188 Cal.Rptr.3d 273 ] [' "sharp" and "pointy" ' pocketknife used to 'poke[ ]' someone 'multiple times in the upper back' is a deadly weapon]; see D.T. , at pp. 699-701 [ 188 Cal.Rptr.3d 273 ] ; People v. Page (2004) 123 Cal.App.4th 1466 , 1469 [ 20 Cal.Rptr.3d 857 ]... [' "sharp[,] pointy" ' pencil held up to someone's neck] ) or a sharp object wielded in a wild or uncontrolled manner ( Simons , supra , 42 Cal.App.4th at p. 1106 [ 50 Cal.Rptr.2d 351 ] [the defendant, being chased by police officers, ' "flail[ed] his hands ... [and] would bring [a] screwdriver forward" ' when approached] ). Here, the knife was not sharp or pointy; it was not applied to any vulnerable part of [the sister's] body; and there is no evidence that B.M. wielded the knife wildly or uncontrollably." ( Id. at p. 538, 241 Cal.Rptr.3d 543 , 431 P.3d 1180 .)

In a separate concurring opinion, Justice Chin (who fully joined the unanimous maj. opn.) clarified the Supreme Court did "not decid[e] the meaning of the word 'likely' in the phrase ' "capable of producing and likely to produce, death or great bodily injury." ' " ( B.M. , supra , 6 Cal.5th at p. 539, 241 Cal.Rptr.3d 543 , 431 P.3d 1180 (conc. opn. of Chin, J.).) Justice Chin stated the court had only determined " 'likely' " "means something 'more than a mere possibility.' (Maj. opn., ante , at p. 534 [ 241 Cal.Rptr.3d 543 , 431 P.3d 1180 ] ; see id. at p. 535 [ 241 Cal.Rptr.3d 543 , 431 P.3d 1180 ].)" ( B.M. , at p. 539, 241 Cal.Rptr.3d 543 , 431 P.3d 1180 (conc. opn. of Chin, J.).) Although the majority opinion had cited dictionary definitions of the word " 'likely' " as meaning " ' "having a high probability," ' ' "very probable," ' or a ' " ' "probability [that is] great," ' " ' " to disprove the Attorney General's argument " 'likely' means 'probable,' " Justice Chin cautioned against reading the majority opinion as having adopted such definitions. ( Ibid. )

context of a law designed to prevent harm, 'likely' can sometimes mean something less than 'probable.' " ( B.M. , supra , 6 Cal.5th at p. 540, 241 Cal.Rptr.3d 543 , 431 P.3d 1180 (conc. opn. of Chin, J.).)

3. Analysis.

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. The evidence presented at trial demonstrated that, when the three employees of the dealership confronted defendant in the motel parking lot, defendant took the stolen car keys from his pocket and made a fist so that the "sharp" end of one of the keys stuck out from between his knuckles. Defendant then "charged," "came at," or "lunged" at Agustin. And, when he was within reach of Augustin, defendant "swung," "swiped," or "punch[ed]" at Agustin's torso "with force." True, defendant did not actually strike Agustin, and Chase (who was not the closest of the three men to defendant) believed defendant was too far away to contact Agustin. But the evidence presented at trial demonstrated it was only Arthur's intervention that prevented defendant from striking Agustin. Agustin testified he was not hit "because my nephew [i.e., Arthur] pulled me back," and Arthur testified, "If I didn't move [Agustin], he probably would have got hit."

We believe this case is similar to People v. Simons (1996) 42 Cal.App.4th 1100 , 50 Cal.Rptr.2d 351 ( Simons ), a case the Supreme Court cited with at least implicit approval in B.M. (See B.M. , supra , 6 Cal.5th at pp. 535, 538, 241 Cal.Rptr.3d 543 , 431 P.3d 1180 .) The defendant in Simons held several armed police officers at bay with a screwdriver, an object the court described as "not an inherently deadly weapon." ( Simons , at p. 1107, 50 Cal.Rptr.2d 351 .) Although instructed to drop the tool, the defendant flailed it about and urged the officers to shoot him. On those facts, the court found that for purposes of the crime of exhibiting a deadly weapon to prevent arrest (§ 417.8), "[t]he evidence clearly demonstrated that the screwdriver was capable of being used as a deadly weapon and that defendant intended to use it as such if the circumstances required." ( Simons , at p. 1107, 50 Cal.Rptr.2d 351 .)

Like a screwdriver, a car key is not an inherently deadly weapon. But like

'pointy,' and [she] felt some pain. She did not think minor would hurt her, or that he was trying to cut or kill her. However, the victim was scared that an injury might occur because minor had a knife pressed to her back." ( D.T. at p. 697, 188 Cal.Rptr.3d 273 .) The investigating officer testified similar knives can cause serious injury or death. ( Ibid. )

On appeal, the minor in D.T. , supra , 237 Cal.App.4th 693 , 188 Cal.Rptr.3d 273 , argued the knife was not likely to cause death or great bodily injury. Relying on our decision in Page and on Simons , we disagreed. "[I]n Page this court found a pencil, which is less sharp and less likely to cause serious harm than a knife, to be a deadly weapon when it was held against a victim's throat without any slicing or stabbing motions. ( People v. Page , supra , 123 Cal.App.4th at p. 1472 [ 20 Cal.Rptr.3d 857 ].) Even more supportive of our point is People v. Simons (1996) 42 Cal.App.4th 1100 , 1106-1107 [ 50 Cal.Rptr.2d 351 ]..., in which the court held that a screwdriver was a deadly weapon even though the defendant had only brandished it at police officers without actually touching anyone. If a pencil held to a victim's neck, and a screwdriver that is only used to threaten from a distance , are both likely to cause death or serious bodily injury, then so is a sharp knife held to the back of a victim. As we have explained, the test is whether the knife was ' "used in such a manner as to be capable of producing and likely to produce , death or great bodily injury." [Citation.]' ( Aguilar , supra , 16 Cal.4th at pp. 1028-1029 [ 68 Cal.Rptr.2d 655 , 945 P.2d 1204 ], italics added.) Because the knife was sharp, and because minor held it against the victim in such a way that a sudden distraction or misstep could have resulted in a serious puncture wound, the knife had the capacity to cause serious bodily injury or death. It therefore meets the Aguilar standard for likelihood." ( D.T. , at pp. 700-701, 188 Cal.Rptr.3d 273 , first italics added, second italics in original.)

As in Page and D.T. , we continue to find Simons persuasive. If using a screwdriver to fend off police officers from a distance is likely to result in serious injury, then forcefully swinging, swiping, or punching a car key at a victim's torso from a short distance is also likely to result in serious injury.

B. The Trial Court Must Determine on Resentencing Whether to Impose Concurrent Sentences on Counts 1 and 3.

Defendant contends, and we agree, the trial court inaccurately believed it could only sentence defendant on counts 1 and 3 concurrently with the sentence on count 2 if it first struck defendant's strike. We reverse the sentence and remand for the trial court to consider in the first instance whether concurrent sentences on counts 1 and 3 are appropriate.

At sentencing, defense counsel asked the trial court to sentence defendant to nine years on count 2 (the low term of two years, doubled under the one

strike law, plus a five-year enhancement for the prior serious felony conviction). Counsel also requested the court consider imposing concurrent sentences for counts 1 and 3: "We would obviously greatly appreciate it if the Court would run the time concurrent on the other two counts but, should the Court be inclined not to run that concurrent, that it run one-third the midterm for two years on Count 1." The court indicated its belief that, for the sentences on counts 1 and 3 to run concurrently with count 2, "I'd have to

the trial court misunderstood its limited discretion to impose concurrent sentences under the three strikes law, and the court's "vague statement" does not overcome the presumption the court understood its discretion. The trial court was not vague in the least. To repeat, when defense counsel asked for the court to impose consecutive sentences on counts 1 and 3, the court said, " I'd have to strike the strike for those counts. " (Italics added.) The court also said, "I think it has to be consecutive unless I strike the strike. I can do that for those subsequent counts[, i.e., counts 1 and 3], impose it one time [on count 1] then strike it." (Italics added.) On this record, we are not persuaded the trial court understood it had discretion to impose concurrent sentences. "[W]hen the record indicates the court misunderstood or was unaware of the scope of its discretionary powers, we should remand to allow the court to properly exercise its discretion." ( People v. Bolian (2014) 231 Cal.App.4th 1415 , 1421, 180 Cal.Rptr.3d 890 .)

The People also argue that, if we conclude the trial court misunderstood its discretion, we should not remand for resentencing because there is no possibility the trial court will conclude the offenses were

with defense counsel the drug conviction was likely to be reduced to a misdemeanor under Proposition 47. Defendant then waived his right to a jury trial and admitted the attempted carjacking conviction. However, the minute order erroneously states, "Defendant admits Prior(s) 01 [and] 02," and "Court orders Prior(s) 02 Stricken."

Defendant also contends the minute order and abstract of judgment do not reflect the oral pronouncement of the restitution fine and parole revocation fine. Section 1202.4 mandates every defendant convicted of a felony pay a restitution fine of no less than $300 and no more than $10,000. (§ 1202.4, subd. (b)(1).) The court may, in its discretion, impose a restitution fine using the following formula: the minimum fine ($300), times the "number of years of imprisonment the defendant is ordered to serve," times "the number of felony counts of which the defendant is convicted." ( Id. , subd. (b)(2).) The court must also impose a parole revocation fine in the same amount as the restitution fine. (§ 1202.45, subd. (a).)

In its report and sentencing recommendation, the probation department recommended the trial court consider count 2 as the principal count and sentence defendant as follows: the middle term of three years on count 2, doubled under the one strike law should the prior strike be found true; one-third the middle term of three years on count 1, doubled if the court found true the strike allegation; and one-third the middle term of two years on count 3, again, doubled should the court find true the strike allegation. Therefore, the probation department recommended a total state prison sentence of four years eight months if the strike prior was not found true and a sentence of 15 years four months if it was found true (this included the five-year enhancement for the strike prior, and a one-year enhancement for the prison prior defendant did not admit). Based on the minimum recommended prison sentence of four years eight months (assuming the strike prior was not found

The People argue the minutes and abstract of judgment reflect the correct restitution and parole revocation fines as permitted by section 1202.4, subdivision (b)(2). But, the People's argument presupposes the trial court intended to impose a fine using that formula. Nothing supports that conclusion. The trial court said, clearly and unambiguously, it was imposing the " minimum restitution fine and other fines." (Italics added.) There is no wiggle room there.

Moreover, arithmetic is not on the People's side. The probation department recommended a restitution and parole revocation fine of $3,600 based on the assumption defendant's strike prior would not be found true, and defendant would only be sentenced to four years eight months. Had the trial court intended to impose restitution and parole revocation fines using the formula set forth in section 1202.4, subdivision (b)(2), the correct figure would have been $10,000 (minimum fine ($300) x years of imprisonment (14) x number of convictions (3) = $12,600, capped at the maximum fine of $10,000).

Because we reverse the sentence and remand for resentencing, we need not direct the minutes and abstract of judgment to be corrected. When defendant is resentenced, we presume the minutes will accurately reflect defendant only admitted one strike prior. The trial court is, of course, free at resentencing to impose a new restitution and parole revocation fine. Should the court once more impose the minimum fines, we presume the minutes of sentencing and abstract of judgment will so reflect.

V. DISPOSITION

The sentence is reversed. At resentencing, the trial court must consider whether concurrent sentences on counts 1 and 3 are appropriate pursuant to Penal Code sections 667, subdivision (c)(6), and 1170.12, subdivision (a)(6).

In all other respects, the judgment is affirmed.

I concur:

MILLER, J.

I

NTRODUCTION

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 may be convicted of assault with a deadly weapon. (

"turn[ ] on the nature of the force used" like the assault at issue here, Simons provides no support for the majority's holding. ( Aguilar , supra , 16 Cal.4th at p. 1035, 68 Cal.Rptr.2d 655 , 945 P.2d 1204 .)

But even if Simons were relevant to our issue, its facts aren't remotely analogous. The majority tries to sidestep that problem by manipulating the record to raise the specter of danger. They say the key was "sharp," but the only time that word appears in the trial transcript is when the prosecutor used it to distinguish the key's ignition end from its fob end. Treating the prosecutor's use of the adjective in that context as evidence the key was sharp-edged and dangerous is an elementary error. The majority also clip and paste together words from three different witnesses' descriptions of Koback's single

possibility of serious injury, for a fool with a car key is much less dangerous (and culpable) than a fool with a dagger.

ANALYSIS

A. Assault with an Object Used as a Deadly Weapon (Aguilar)

Penal Code section 245, subdivision (a)(1) ( section 245(a)(1) ) prohibits assaulting a person "with a deadly weapon or instrument other than a firearm." (Unlabeled statutory citations refer to the Penal Code.) In Aguilar , the Court articulated the standard for determining whether an object constitutes a deadly weapon for purposes of section 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 and likely to produce, death or great bodily injury.' " ( Aguilar , supra , 16 Cal.4th at pp. 1028-1029, 68 Cal.Rptr.2d 655 , 945 P.2d 1204 .)

The first part of this standard, capability, focuses on the nature of the object (is it sharp, heavy, blunt?) and whether a person could cause serious injury with it. It's possible to imagine that some objects may not meet this first prong. It is probably impossible to gravely injure someone with a rice cake, whereas we can all imagine how a

everyday objects, however, makes sense. We infer a likelihood of serious injury when people use inherently dangerous weapons in assaults because those weapons are specifically designed to inflict such injury. (See B.M. , supra , 6 Cal.5th at p. 537, 241 Cal.Rptr.3d 543 , 431 P.3d 1180 ["Where a defendant uses a firearm with poor aim, lack of injury carries little weight not because it is appropriate to consider what injury could have resulted if the defendant had had better aim, but because in many circumstances using a firearm even with poor aim is likely to produce death or serious injury"].) But the same is not true for golf clubs, car keys, and other generally innocuous objects. For these, we must look to the specifics to determine whether the defendant's actions were culpable enough to warrant the harsher punishment aggravated assault carries.

B. Koback I and B.M.

In their first decision, the majority ignored the likelihood standard and upheld Koback's conviction on the ground the car key was capable of producing serious injury ( Koback I ). They concluded, "there is nothing in the record to suggest defendant would not have continued to swing the car key at [the victim] if he and the other men had not backed off, or that defendant would only have swung at [the victim's] torso and would not have swung for his face or neck." ( Koback I , at p. 10.) As support, they cited the appellate court's decision in B.M. , which concluded B.M.'s use of a butter knife to attack her sister constituted assault with a deadly weapon because she " 'could have easily inflicted great bodily injury with [the] ... knife and just as easily [could] have committed mayhem upon the victim's face.' " ( B.M. , supra , 6 Cal.5th at p. 532, 241 Cal.Rptr.3d 543 , 431 P.3d 1180 .)

The California Supreme Court granted review of Koback I and the appellate court's decision in B.M. The Court then issued a decision in B.M. , in which it held

concluded the record was insufficient to support such a finding because the defendant had struck only non-vulnerable parts of the victim's body and, more importantly, her testimony "did not describe the degree of force [he had] used in hitting her with the stick." ( Ibid. , italics added.) "The jury therefore had before it no facts from which it could assess the severity of the impact between the stick and [the victim's] body." ( Id. at p. 1088, 130 Cal.Rptr.2d 717 , italics added.)

In Duke , the defendant held the victim in a headlock while he touched her breast. ( Duke , supra , 174 Cal.App.3d at p. 302, 219 Cal.Rptr. 873 .) The victim said the headlock "made her feel 'choked' but did not cut off her breathing." ( Ibid. ) Although she said his hold felt " 'firm,' " she did not say he tightened his grip. ( Ibid. ) The court found the victim's testimony insufficient to sustain a conviction for assault with force likely to cause great bodily injury, emphasizing that the inquiry focuses on "the force actually used ," not "the force that ... could have [been] used." ( Id. at p. 303, 219 Cal.Rptr. 873 .) "[T]he fact that appellant could have easily broken [the victim's] neck or could have choked her to the point of cutting off her breathing by exerting greater pressure on her neck or windpipe will not support the conviction of felony assault. This would involve gross speculation on the part of the jury as to what the appellant would have done if he had not stopped of his own accord or had been stopped by outside forces." ( Ibid. )

Approving the analyses in Beasley and Duke , the B.M. Court reaffirmed that "the determination of whether an object is a deadly weapon ... must rest on evidence of how the defendant actually 'used' the object." ( B.M. , supra , 6 Cal.5th at p. 534, 241 Cal.Rptr.3d 543 , 431 P.3d 1180 , italics added.) Turning to the evidence of B.M.'s assault, the Court recounted the victim's testimony that B.M. had stabbed and sliced her blanket-covered legs a few times using pressure that felt like "a five or a six" on a scale of 10. ( Id. at p. 531, 241 Cal.Rptr.3d 543 , 431 P.3d 1180 .) The Court found this evidence insufficient to support the conviction for three reasons. First, the object itself was not particularly dangerous. The blade was metal, six inches long, and although it had ridges "on one edge of the blade," it "was not sharp" like a pocketknife. ( Id. at p. 536, 241 Cal.Rptr.3d 543 , 431 P.3d 1180 .) Second, B.M. had attacked only the victim's legs. There was no evidence she "used or attempted to use the knife in the area of [the victim's] head, face, or neck, or on any exposed part of her body." ( Ibid. ) And third, B.M. had

injury." ( B.M. , supra , 6 Cal.5th at pp. 533-534, 241 Cal.Rptr.3d 543 , 431 P.3d 1180 .) The Court rejected these definitions, finding them "at odds with" the ordinary dictionary definition of "likely," which is " 'having a high probability of occurring or being true' " or " 'very probable,' " as well as the term's definition in other parts of the Penal Code (e.g., "likely" means having a " 'probability [that is] great' " in the context of felony child abuse). ( B.M. , at p. 533, 241 Cal.Rptr.3d 543 , 431 P.3d 1180 , citing Merriam-Webster Collegiate Dict. (11th ed. 2014) p. 721 & § 273a.) The Court refused to equate Aguilar's capability and likelihood standards, explaining "[t]he use of an object in a manner 'likely to produce' death or great bodily injury ... requires more than a mere possibility that serious injury could have resulted from the way the object was used." ( B.M. , at p. 534, 241 Cal.Rptr.3d 543 , 431 P.3d 1180 .)

After issuing its opinion in B.M. , the Court vacated Koback I and remanded the case to us with directions to reconsider the assault conviction in light of its opinion.

C. Application of B.M. to this Case

The analysis in B.M. focused on three questions-was the object sharp, where did defendant aim it, and with what degree of force? ( B.M. , supra , 6 Cal.5th at p. 536, 241 Cal.Rptr.3d 543 , 431 P.3d 1180 .) Here, like the butter knife, the ignition end of the key that partially protruded from Koback's knuckles when he swung was not sharp. This is the photograph of the key the prosecution showed the jury.

If anything, the key looks less sharp than the six-inch, ridged blade in B.M. ( B.M. , supra , 6 Cal.5th at p. 536, 241 Cal.Rptr.3d 543 , 431 P.3d 1180 .) Certainly, the key's shaft comes nowhere near the sharpness of your average pocketknife, which B.M. references as a typical sharp object. ( Ibid. )

As to how Koback used the key, here is everything we know from trial. The victim (Agustin) and his two coworkers testified Koback stood between three and five feet away from them when he made a fist around the plastic fob so part of the shaft protruded from his knuckles. Agustin said Koback swiped once "with force" at his torso. One of the coworkers described the motion "Pretty much as if [Koback] was throwing a punch." The swipe did not land-either because Koback was too far away or because one of the coworkers pulled Agustin away in time. Agustin said Koback "got scared and he left" immediately after swinging at him.

This evidence is even less meaningful than the evidence in B.M. , Beasley , and Duke. In B.M. and Duke , the records did indicate how much force the defendants had used, but the courts found the evidence insufficient to support a finding that serious injury was likely. Our case is like Beasley , where there was no information about the degree of force used, except that in Beasley the defendant had actually inflicted injury. Here, the only evidence regarding force is Agustin's statement that Koback swung at him "with force." How much force? Enough to gravely injure Agustin if the key made contact with his clothed midsection? Enough only to scratch or graze him? The record doesn't provide an answer, and it's obvious that some force is not the same as force likely to produce death or great bodily injury. ( See B.M. , supra , 6 Cal.5th at p. 536, 241 Cal.Rptr.3d 543 , 431 P.3d 1180 ["moderate" force was insufficient to cause serious bodily injury].) Moreover, because Koback's conduct did not result in physical contact, we cannot infer the degree of force from evidence of the impact. ( B.M. , at p. 537, 241 Cal.Rptr.3d 543 , 431 P.3d 1180 ["nature" and "location" of injuries

evidence supported a finding he "intended" to stab the officers with the screwdriver "if the circumstances required." ( Simons , at p. 1107, 50 Cal.Rptr.2d 351 .) The majority concludes this holding supports affirming Koback's conviction for assault with a deadly weapon because "like the defendant in Simons , who used the screwdriver to keep police officers at bay, [Koback] swung the key to keep the three rental car company employees at bay." (Maj. opn. ante , at pp. 859-60.)

There are two problems with relying on Simons. First, our facts are not at all analogous. In Simons , the defendant engaged in a series of aggressive actions-thrashing the screwdriver at the officers, threatening to stab their dog, and wrestling with them. ( Simons , supra , 42 Cal.App.4th at p. 1106, 50 Cal.Rptr.2d 351 .) In contrast, our record consists of a single action-swinging the short ignition end of a car key from a few feet away.

The only way the majority make their comparison to Simons is by misrepresenting the trial record. They string together multiple witness accounts describing Koback's single swing to make his wielding of the key seem aggressive and erratic, and they take the prosecutor's use of the word "sharp" to distinguish the key's fob end from the ignition end as evidence the shaft was sharp-edged. In addition, they attempt to evoke an aura of dangerousness around the incident by recounting the details of the employees' first encounter with Koback in the Enterprise parking lot, noting how close he stood to them, how he told them he'd " 'fuck' them up" if they didn't back off, and how he seemed to be getting "angry" and agitated. (Maj. opn. ante , at pp. 853-54.) But these facts do not matter to the issue actually in dispute-whether he swung the key with force likely to produce serious injury during the second, later encounter in the motel parking lot. Koback's actions during the first encounter may provide circumstantial evidence of his state of mind during the second, but his state of mind is not in dispute. It is uncontested he intended to assault Agustin. The issue is whether that assault was simple or aggravated, based on how he used the key.

What I find more significant than the detail the majority recount is Agustin's testimony Koback "got scared" after swiping at him and immediately fled. That testimony suggests he was not trying to seriously injure Agustin by swiping at him but rather trying only to gain distance from his pursuers-like he had a few minutes earlier in the Enterprise parking lot by threatening to "fuck [them] up" if they didn't back away. Notably, Koback also fled during that first encounter.

object to a vulnerable part of the body during a tense encounter like a robbery, where things can take a wrong turn at any given moment. Here, in contrast, we cannot say with any confidence that Koback's swing threatened a similar risk of injury.

What our case boils down to is a single swipe of a car key at a person's clothed

contains no testimony about what could have happened had Koback's swing landed. Unlike ingesting a metal pin, which is sharp enough to draw blood upon slight contact, the type of the injury, if any, that would result from being hit in the midsection with a key like the one Koback used depends entirely on the force behind the swing.

The majority compound their error in relying on Simons by defining "likely" under Aguilar as "more than a mere possibility." (Maj. opn. ante , p. 860.) To justify this conclusion, they cite B.M.'s statement that "[t]he use of an object in a manner 'likely to produce' death or great bodily injury ... requires more than a mere possibility that serious injury could have resulted from the way the object was used." ( B.M. , supra , 6 Cal.5th at p. 534, 241 Cal.Rptr.3d 543 , 431 P.3d 1180 .) This conflates what is necessary to satisfy the likelihood standard with what is sufficient to do so. When the Court said Aguilar requires "more than a