Legal Research

Assignment IRAC

People v. Aguilar
Analysis by Chandra Nath

Issue Section of an IRAC

Did the prosecutor rely upon a legally incorrect theory ?(People v. Guiton (1993) 4 Cal.4th 1116 [17 Cal.Rptr.2d 365, 847 P.2d 45].)
Was conviction under section 245, subdivision (a)(1) legal?
Did the trial court committ reversible error by failing to sua sponte instruct under CALJIC No. 2.71 ?
Did the prosecutor committ misconduct ?
Was there insufficient evidence that Perez personally caused great bodily injury ?
Was the jury incorrectly instructed regarding the allegation that Perez personally inflicted great bodily injury?
Should Perez's robbery sentence have been stayed?
Whether the use of hands or feet constitutes the use of a deadly weapon under section 245, subdivision (a)(1) ?
And if not, then whether the error requires reversal ?
Should Aguilar's conviction be affirmed/reversed?
Should Perez's conviction be affirmed/reversed?

(Note for self: The IRAC starts with a statement of the issue or question at hand. In the issue section of an IRAC it is important to state exactly what the question in law is. It is also equally important to stay away from including rules or analysis as it confuses the proper use of the methodology.)
Rules Section of an IRAC

Statutes is construed to avoid redundancies or absurdities.
When the prosecution presents its case to the jury on alternate theories, some of which are legally correct and others legally incorrect, and the reviewing court cannot determine from the record on which theory the ensuing general verdict of guilt rested, the conviction cannot stand." (27 Cal.3d at p. 69.)
If the inadequacy of proof is purely factual [italics added], of a kind the jury is fully equipped to detect, reversal is not required whenever a valid ground for the verdict remains, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground
Mistakes about the law, which required reversal, and mistakes {Page 50 Cal.App.4th 546} about the weight or factual import of the evidence: "That surely establishes a clear line ... and it happens to be a line that makes good sense.
When, jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error.
When jurors have been left the option of relying upon a factually inadequate theory, since jurors are well equipped to analyze the evidence
General rules to apply in the absence of a basis in the record supporting the opposite result. But the record may sometimes affirmatively indicate that the general rule should not be followed.

(Note for self: The rules section of an IRAC follows the statement of the issue at hand. The rule section of an IRAC is the statement of the rules pertinent in deciding the issue stated. Rules in a common law jurisdiction derive from court case precedent and statute. The information included in the rules section depends heavily on the specificity of the question at hand. If the question states a specific jurisdiction then it is proper to include rules specific to that jurisdiction. Another distinction often made in the rule section is a clear delineation of rules that are in holding and rules that are dicta. This helps make a correct legal analysis of the issue at hand. The rules section needs to be a legal summary of all the rules used in the analysis and is often written in a manner which paraphrases or otherwise analytically condenses information into applicable rules.)
Analysis Section of an IRAC

Erroneous Legal Theory:

Both Perez and Aguilar seek reversal of their convictions under section 245, subdivision (a)(1). . They claim the prosecutor relied upon, and the jury was instructed on, a legally incorrect theory. In particular, appellants were charged with assault with a deadly weapon or instrument or by means of force likely to produce great bodily injury.
According to the prosecutor, the evidence showed the use of force likely to produce great bodily injury.
The prosecutor also claimed a deadly weapon was used because appellants' "hands" and "feet" were the equivalent of deadly weapons.
According to appellants, however, hands and feet cannot be considered "deadly weapons" under section 245, subdivision (a)(1).

The prosecutor relied upon an erroneous legal theory and reversal is required under People v. Guiton, supra, 4 Cal.4th 1116 and People v. Green (1980) 27 Cal.3d 1 [164 Cal.Rptr. 1, 609 P.2d 468].
(1) whether the use of hands or feet constitutes the use of a deadly weapon under section 245, subdivision (a)(1); and if not, then (2) whether the error requires reversal under People v. Guiton.
To determine whether the use of hands or feet constitutes the use of a deadly weapon, we must look to the words of the statute.
We must "look to the language of the statute and 'accord words their usual, ordinary, and common sense meaning based on the language used and the evident purpose for which the statute was adopted.' " (People v. Catelli (1991) 227 Cal.App.3d 1434, 1448 [278 Cal.Rptr. 452], quoting In re Rojas (1979) 23 Cal.3d 152, 155 [151 Cal.Rptr. 649, 588 P.2d 789]; see also Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735 [248 Cal.Rptr. 115, 755 P.2d 299]; Carlos v. Superior Court (1983) 35 Cal.3d 131, 145-147 [197 Cal.Rptr. 79, 672 P.2d 862].) {Page 50 Cal.App.4th 540}
Section 245, subdivision (a)(1) provides, "Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison ...."
Section 245 punishes the use of a deadly weapon or instrument or force likely to produce great bodily injury. Under section 245, it is immaterial whether contact is actually made. (People v. Wingo (1975) 14 Cal.3d 169, 176 [121 Cal.Rptr. 97, 534 P.2d 1001].) as the court explained in People v. McCaffrey (1953) 118 Cal.App.2d 611 [258 P.2d 557]
To make one guilty of violating section 245, evidence of an actual blow is not necessary; but it is requisite that proof be made of an attempt to beat another (1) with a deadly weapon or other instrument not ordinarily defined as a deadly weapon, or (2) by a means or with a force likely to produce great bodily injury." (Id. at p. 619.)
It is well established that the use of hands alone may be sufficient to support a conviction under section 245, subdivision (a)(1) of assault by means of force likely to produce great bodily injury. (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066 [10 Cal.Rptr.2d 839]; In re Nirran W. (1989) 207 Cal.App.3d 1157, 1161 [255 Cal.Rptr. 327]; People v. Wingo, supra, 14 Cal.3d at p. 176; People v. Chavez (1968) 268 Cal.App.2d 381, 384 [73 Cal.Rptr. 865];
see also People v. Pullins (1950) 95 Cal.App.2d 902 [214 P.2d 436] [defendant's act of chewing victim's index finger until it was lacerated and the bone broken held to constitute an assault by means of force likely to produce great bodily injury].)
Less clear is whether hands or feet can constitute a "deadly weapon or instrument other than a firearm" under section 245, subdivision (a)(1).
In general, the term "deadly weapon or instrument" as used in section 245, subdivision (a)(1), has been defined as "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." (In re Jose R. (1982) 137 Cal.App.3d 269, 275-276 [186 Cal.Rptr. 898]; see also People v. White (1963) 212 Cal.App.2d 464, 465 [28 Cal.Rptr. 67].)
Some objects, such as dirks and blackjacks, have been held to be deadly as a matter of law. (People v. Graham (1969) 71 Cal.2d 303, 327 [78 Cal.Rptr. 217, 455 P.2d 153].) With respect to these instrumentalities, "the ordinary use for which they are designed establishes their character as such." (Id. at p. 327; People v. Raleigh (1932) 128 Cal.App. 105, 108 [16 P.2d 752].)
Other types of instruments, while not deadly per se, may, under the particular circumstances, be likely to produce death or great bodily injury. {Page 50 Cal.App.4th 541}
"In determining whether an object not inherently deadly or dangerous acquires this characteristic, the trier of fact may look to the nature of the weapon, the manner of its use, and all other factors that are relevant to this issue." (In re Jose R., supra, 137 Cal.App.3d at p. 276; People v. White, supra, 212 Cal.App.2d at p. 465; People v. Russell (1943) 59 Cal.App.2d 660, 665 [139 P.2d 661].)
"Deadly weapon or instrument" has been defined to cover many different types of objects not considered to be inherently deadly. (Cf. People v. Nealis (1991) 232 Cal.App.3d Supp.1 [283 Cal.Rptr. 376].) Nealis listed examples such as

(1) a straight pin embedded in an apple (In re Jose R., supra, 137 Cal.App.3d 269);
(2) an automobile (People v. Claborn (1964) 224 Cal.App.2d 38 [36 Cal.Rptr. 132]);
(3) a beer bottle (People v. Cordero (1949) 92 Cal.App.2d 196 [206 P.2d 665]);
(4) a large rock (People v. White, supra, 212 Cal.App.2d 464);
(5) a razor blade (People v. Richardson (1959) 176 Cal.App.2d 238 [1 Cal.Rptr. 306]);
(6) a fingernail file (People v. Russell, supra, 59 Cal.App.2d 660);
(7) an iron bar (People v. Lee (1937) 23 Cal.App.2d 168 [72 P.2d 572]); and a pillow (People v. Helms (1966) 242 Cal.App.2d 476 [51 Cal.Rptr. 484]).

In Nealis, the issue was whether a dog could be considered a deadly weapon or instrument under section 245. The defendant told his Doberman, "Get her! Get her!" (People v. Nealis, supra, 232 Cal.App.3d at p. Supp. 3.) The dog then attacked the victim, biting and jumping on her. The issue in Nealis was whether, as a matter of law, a dog could ever be considered to be a "deadly weapon or instrument" under section 245. (232 Cal.App.3d at p. Supp. 4.). The court answered the question in the affirmative.
Nealis held "depending upon the circumstances of each case, a dog trained to attack humans on command, or one without training that follows such a command, and which is of sufficient size and strength relative to its victim to inflict death or great bodily injury, may be considered a 'deadly weapon or instrument' within the meaning of section 245." (Id. at p. Supp. 6.)
It is clear that hands or feet are not inherently deadly weapons. We must decide whether hands or feet may be considered to be deadly weapons in the circumstances of a particular case.
Other states have considered related issues. Some courts have held that as a matter of law, body parts such as fists and teeth, cannot be considered to be deadly weapons. (See, e.g., Wilson v. State (1924) 162 Ark. 494 [258 S.W. 972, 33 A.L.R. 1182]; People v. Bias (1985) 131 Ill.App.3d 98 [86 Ill.Dec. 256, 475 N.E.2d 253]; State v. Calvin (1945) 209 La. 257 [24 So.2d 467]; Seiter v. State (Mo.App. 1986) 719 S.W.2d 141; State v. Gordon (1989) 161 {Page 50 Cal.App.4th 542} Ariz. 308 [778 P.2d 1204].) Other courts have reached the opposite result. (See e.g. Hollis v. State (Ala.App. 1982) 417 So.2d 617; Kirby v. State (1978) 145 Ga.App. 813 [245 S.E.2d 43]; State v. Born (1968) 280 Minn. 306 [159 N.W.2d 283, 33 A.L.R.3d 919]; see generally, Annot., Parts of the Human Body, Other Than Feet as Deadly or Dangerous Weapons for Purposes of Statutes Aggravating Offenses Such as Assault and Robbery (1981) 8 A.L.R.4th 1268.) These decisions are not particularly useful in resolving our issue because they are based upon criminal statutes which are worded differently than section 245, subdivision (a)(1).
the wording of section 245, subdivision (a)(1) establishes that, as a matter of law, the term "deadly weapon or instrument" under section 245, subdivision (a)(1) does not include the use of feet or hands.
the usual, ordinary, and common sense understanding of the phrase, as used in section 245, subdivision (a)(1), would encompass the use of feet or hands.
The usual, ordinary, and commonsense understanding of the term "deadly weapon or instrument," as used in section 245, subdivision (a)(1), would include only objects extrinsic to the body.
defining "deadly weapon or instrument" to include feet and hands would make redundant the clause "force likely to produce great bodily injury."
deadly weapons or instruments not inherently deadly are defined by their capability of producing great bodily injury. (People v. White, supra, 212 Cal.App.2d at p. 465.)
Thus, if hands and feet can constitute deadly weapons, then it would appear that anything-inanimate or animate object or body parts such as hands, feet or teeth-could, in appropriate circumstances, be considered a "deadly weapon."
If this were the case, there would be no need for the "force likely to produce great bodily injury" clause.
Because the Legislature chose to include both clauses within section 245, subdivision (a)(1), it is reasonable to assume that the Legislature intended that there be a meaningful difference between each clause.
the difference is that the clause "deadly weapon or instrument" was meant to apply only to weapons or instruments extrinsic to the body. Concluding otherwise would mean that the Legislature intended that the clause "force likely to produce great bodily injury" be subsumed with the "deadly weapon or instrument" clause.
It is a fundamental rule of statutory construction that statutes be construed to avoid such redundancies or absurdities. Our construction achieves this result.
In People v. Davis (1996) 42 Cal.App.4th 806 [49 Cal.Rptr.2d 890], the Second District considered a similar issue. In Davis, the defendant had a prior conviction under section 245, subdivision (a)(1). The People proved the "prior" with the contents of the superior court file, which indicated that the defendant had pleaded guilty to the allegation that he "willfully and unlawfully [committed] an assault upon [the victim] with a deadly weapon, to wit, Hands, and by means of force likely to produce great bodily injury." (42 Cal.App.4th at p. 812.). Defense counsel argued that " 'hands ... did not constitute the use of a dangerous or deadly weapon' " under section 667, subdivision (a)(1) and 1192.7, subdivision (c)(23). The trial court disagreed. (42 Cal.App.4th at p. 812.)
On appeal, the Davis court reversed. It found that "[t]he dangerous or deadly weapon must be an object or weapon extrinsic to the human body." (People v. Davis, supra, 42 Cal.App.4th at p. 814.) Davis noted that no court had decided whether the use of hands constituted a deadly weapon or instrument under section 245, subdivision (a)(1). Davis recognized that this was most likely so because section 245, subdivision (a)(1) alleged all aggravated assaults in one statute; i.e. it prohibits both assault with "a deadly weapon or instrument" or "by means of force likely to produce great bodily injury." Davis reasoned that there generally is no need to distinguish between the two clauses because all aggravated assaults are ultimately determined based on the force likely to be applied against a person.
Davis decided that the phrase "personal[] use[ of] a dangerous or deadly weapon" in section 1192.7, subdivision (c)(23), contemplates just that-"the use" of a weapon extrinsic to the body in committing the felony. The court relied upon a statutory interpretation of the words "use" and "weapon." The court also traced the language used within section 1192.7 to section 1203 and the Deadly Weapons Control Act and noted that "[n]o one would dispute the use of the word 'weapon' in Penal Code section 1203, or within the Deadly Weapons Control Act, necessarily involves the use of an implement or object extrinsic to the body." (People v. Davis, supra, 42 Cal.App.4th at p. 817.) The court also cited People v. Equarte (1986) 42 Cal.3d 456 [229 Cal.Rptr. 116, 722 P.2d 890] to support its reasoning.
In People v. Dozie (1964) 224 Cal.App.2d 474 [36 Cal.Rptr. 728], the defendant was convicted of first degree robbery. On appeal, the defendant claimed there was insufficient evidence that the robbery was accomplished {Page 50 Cal.App.4th 544} by torture or by a person armed with a dangerous or deadly weapon. The People argued that the defendant's fist, used with sufficient force, could constitute a "dangerous or deadly weapon" for purposes of former section 211a. The court recognized that there were cases holding that a "shod foot," although not inherently a dangerous weapon, could be used as such to support a first degree robbery conviction. Dozie distinguished the armed robbery statute from section 245, noting that section 245 prohibits both assault with a deadly weapon or instrument and assault by means of force likely to produce great bodily injury. (People v. Dozie, supra, 224 Cal.App.2d 474.)
The Dozie court decided the issue pivoted upon the phrase "armed with a deadly weapon." Finding that the phrase meant that "the user is furnished or equipped with such a weapon," the court then reasoned, "In a sense, all who possess normal appendages are furnished or equipped with fists." (224 Cal.App.2d at p. 476.) Dozie went on to conclude that "one equipped only with his naked hands or fists is not armed with a dangerous or deadly weapon within the meaning of ... section 211a." (Id. at p. 477.)
People v. Graham, supra, 71 Cal.2d 303 found that a shod foot could constitute a deadly weapon under former section 211a. Graham does not affect the result here since it dealt only with former ection 211a, which required that the robbery be perpetrated by a person "armed with a dangerous or deadly weapon." Since we are construing section 245, subdivision (a)(1), and basing our conclusion on the fact that the Legislature chose to include two clauses within section 245, subdivision (a)(1), Graham does not affect this analysis.
People v. Duke (1985) 174 Cal.App.3d 296 [219 Cal.Rptr. 873] recognized that the use of hands or feet generally results in a defendant being charged under the "force likely to produce great bodily injury" clause of section 245, subdivision (a)(1). Duke cited Witkin, stating that " 'the cases tend to bear out this assumption, for almost invariably they involve blows and physical injuries. If a deadly weapon is used to inflict them the charge can be assault with a deadly weapon [citation]. But if hands, fists or feet, etc., are the means employed, the charge will normally be assault with force likely to produce great bodily injury.' " (People v. Duke, supra, 174 Cal.App.3d at pp. 302-303; citing 1 Witkin, Cal. Crimes (1963) § 272, pp. 255-256.)
These cases support our conclusion that hands and feet cannot, as matter of law, constitute deadly weapons under section 245, {Page 50 Cal.App.4th 545} subdivision (a)(1). More importantly, as a matter of statutory construction, defining deadly weapon to include the use of hands or feet, would make redundant the "force likely to produce great bodily injury" clause. Accordingly, we conclude that hands or feet are not deadly weapons under section 245, subdivision (a)(1).
The prosecutor argued that appellants used a deadly weapon because "hands and feet can be deadly weapons, and you don't have to be a black belt in karate, ..." The prosecutor's argument in this case was improper.
In People v. Green, supra, the California Supreme Court stated that "... when the prosecution presents its case to the jury on alternate theories, some of which are legally correct and others legally incorrect, and the reviewing court cannot determine from the record on which theory the ensuing general verdict of guilt rested, the conviction cannot stand." (27 Cal.3d at p. 69.) The court in Green added, "The same rule applies when the defect in the alternate theory is not legal but factual, i.e., when the reviewing court holds the evidence insufficient to support the conviction on that ground." (Id. at p. 70, italics added.)
The California Supreme Court reconsidered Green in People v. Guiton, supra, 4 Cal.4th 1116. Guiton held that "[w]e thus conclude that the rule in Green, ... which we construe as applying only to cases of legal insufficiency ... survives .... If the inadequacy of proof is purely factual [italics added], of a kind the jury is fully equipped to detect, reversal is not required whenever a valid ground for the verdict remains, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground [(italics added)]. But if the inadequacy is legal, not merely factual, that is, when the facts do not state a crime under the applicable statute [(italics added)], ... the Green rule requiring reversal applies, absent a basis in the record to find that the verdict was actually based on a valid ground." (Id. at pp. 1128-1129, italics in original unless otherwise indicated.)
In Guiton, the court relied upon Griffin v. United States (1991) 502 U.S. 46 [116 L.Ed.2d 371, 112 S.Ct. 466]. Guiton emphasized Griffin's distinction between mistakes about the law, which required reversal, and mistakes {Page 50 Cal.App.4th 546} about the weight or factual import of the evidence: "That surely establishes a clear line ... and it happens to be a line that makes good sense. Jurors are not generally equipped to determine whether a particular theory of conviction submitted to them is contrary to law-whether, for example, the action in question is protected by the Constitution, is time barred, or fails to come within the statutory definition of the crime. When, therefore, jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error. Quite the opposite is true, however, when they have been left the option of relying upon a factually inadequate theory, since jurors are well equipped to analyze the evidence [citation]." (Griffin, supra, 502 U.S. at p. 59 [116 L.Ed.2d at pp. 382-383]; People v. Guiton, supra, 4 Cal.4th at p. 1125, first italics added.)
The People relied on an improper legal theory-they argued the use of feet and hands constituted a deadly weapon. As we have decided above, feet or hands do not fall within the statutory definition of "deadly weapon or instrument" under section 245, subdivision (a)(1).
Therefore, Guiton's general rule of reversal applies. However, Guiton stressed that the rules it adopted were "general rules to apply in the absence of a basis in the record supporting the opposite result. But the record may sometimes affirmatively indicate that the general rule should not be followed." (People v. Guiton, supra, 4 Cal.4th at p. 1129.) In this case, the record supports application of the general rule with respect to Aguilar but not with respect to Perez.
Perez was convicted of the great bodily injury enhancement. Aguilar was not. Although the assault and great bodily injury enhancement punish separate things-assault punishes the attempt and the enhancement punishes the injury that actually occurred- hence it is reasonable to conclude that because the jury found that Perez's conduct resulted in great bodily injury, they also would have found that Perez used force likely to produce great bodily injury pursuant to section 245, subdivision (a)(1). Thus, Guiton's rule of reversal should not apply to Perez.
With respect to Aguilar, however, the jury found the great bodily injury enhancement not to be true. Accordingly, the Guiton rule applies to Aguilar. In closing argument, the prosecutor emphasized the incorrect theories, specifically telling the jury that appellants used their hands and feet as deadly weapons. The jury was instructed that it could convict based upon the deadly weapon theory. It is impossible to tell whether the jury convicted Aguilar under section 245, subdivision (a)(1) based upon a finding that he used a deadly weapon or upon a finding that he {Page 50 Cal.App.4th 547} used force likely to produce great bodily injury. For these reasons, Guiton compels reversal of Aguilar's conviction under section 245, subdivision (a)(1).

(Note for self: The analysis section of an IRAC applies the rules developed in the rules section to the specific facts of the issue at hand. This section uses only the rules stated in the rules section of the IRAC and usually utilizes all the rules stated including exceptions as is required by the analysis. It is important in this section to apply the rules to the facts of the case and explain or argue why a particular rule applies or does not apply in the case presented. The analysis section is the most important section of an IRAC because it develops the answer to the issue at hand.)
Conclusion Section of an IRAC

The prosecutor relied upon a legally incorrect theory. (People v. Guiton (1993) 4 Cal.4th 1116 [17 Cal.Rptr.2d 365, 847 P.2d 45].)
The conviction under section 245, subdivision (a)(1) legal in Perez's case and illegal in Aguilar's case.
T he trial court committ reversible error by failing to sua sponte instruct under CALJIC No. 2.71
The prosecutor did not committ misconduct but committed error of judgement.
The great bodily injury allegations were found to be NOT true.
The jury was incorrectly instructed regarding the allegation that Perez personally inflicted great bodily injury.
Perez's robbery sentence be not stayed.
The use hands or feet do NOT constitutes the use of a deadly weapon under section 245, subdivision (a)(1)
The error requires reversal.
Aguilar's conviction be reversed.
Perez's conviction be affirmed..

(Note for self: The conclusion section of an IRAC directly answers the question presented in the issue section of the IRAC. It is important for the methodology of the IRAC that the conclusion section of the IRAC not introduce any new rules or analysis. This section restates the issue and provides the final answer.)

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