CALIFORNIA EVIDENCE: WHEN IS A KNIFE NOT A DEADLY WEAPON?
Here is a really interesting case. When is a knife not a deadly weapon? One would usually answer "never", right? I mean, I once had a San Diego Deputy District Attorney argue that fruit pits were deadly weapons because the defendant tried ramming them down the victim's throat screaming, "Choke on it." A new judge listening to this novel and, frankly, weird assertion by the DA, drank the Koolaid. So, here's why this case is really a good, and reasonable, analysis...
The minor in this case used a butter knife to try to cut the victim. Not only did he fail to successfully cut the victim, the knife actually broke. The minor was found a ward for assault with a deadly weapon. (California Penal Code sec. 245(a).) This California Court of Appeal says that this knife wasn't a deadly weapon. Now, was it USED as a deadly weapon? No. As hard as the minor tried, this knife could never produce death or great bodily injury.
In re Brandon T.; 2011 DJ DAR 1321; DJ, 1/25/11; C/A 2nd, Div. 1
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