Wednesday, February 09, 2011

In Re Brandon T. (Cal. Ct. App. - Jan. 24, 2011)

In California, it seems like everything is a "deadly weapon" (as in, "assualt with a deadly weapon").  A dirk.  A stick.  A pencil.  Virtually anything.  I wouldn't be surprised if the Court of Appeal held that my textbook in civil procedure was a deadly weapon.  No joke.

So imagine my surprise when the Court of Appeal holds that a knife isn't a deadly weapon.


It's a butter knife, to be sure.  But I was still fairly stunned.  This holding is definitely an outlier.  I'd have bet dollars to doughnuts that the Court of Appeal would hold that a butter knife was a deadly weapon.  Especially when, as here, it was wielded at school by one youth against another across the latter's neck.

On the one hand, I'm impressed.  It takes guts to make such a ruling.  It's so much easier to just affirm a conviction and be "tough on crime."  So I like that.  I also appreciate the fact that the Court of Appeal raised this issue sua sponte -- the defendant's appointed counsel filed a Wende brief concluding that there were no nonfrivolous arguments that could possibly be raised.  So I'm happy the Court of Appeal thought otherwise.  Though the fact that appointed counsel missed this (and other) issues seems telling to me as well, and not in a good way.

On the other hand, I'm not totally sure that I agree that a butter knife isn't a deadly weapon, at least when it's used as it was here.  I'm completely on board for the Court of Appeal's holding that it's not a deadly weapon as a matter of law, and that it requires a factual inquiry.  True that.  But it seems to me that the Court of Appeal may put too much stock into the fact that the knife broke when pressure was applied.  Yes, that's nice, and yes, that meant that there wasn't much on the victim's neck besides bruises and welts.  But I'm not sure we can -- or should -- be so confident in the defective manufacture of our nation's butter knives.  What if it hadn't broken?  It seems quite plausible to me that the knife could have broken the skin and severed the victim's jugular.  Maybe I'd need some support for that -- I honestly don't know the strength of these things, and am not all that excited to test the hypothesis -- but my sense is that it's possible.  And it seems as if the defendant was at least making the effort.  That might be enough for me.  I admit it's a close call, but I'd have liked a little bit more analysis on this point.  If only 'cause I know for darn sure that no way is the TSA going to allow me on a plane with a butter knife.  Seems to me possible that it's a deadly weapon.

So a case worth reading.  If only because it bucks the trend, and concerns an issue on which reasonable minds could clearly disagree.