Jim Porter: Assault with a deadly butter knife | SierraSun.com
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Jim Porter: Assault with a deadly butter knife

Jim Porter
Special to the Sun

TRUCKEE/TAHOE, Calif. and#8212; Do you think a criminal should be convicted of assault with a deadly weapon for trying to slit his friendand#8217;s throat with a plastic butter knife? Donand#8217;t laugh, that was the question in Brandon T., a Minor.

Classroom scuffle

Deon and Brandon argued during class in their high school in Los Angeles. Deon accused another student of not being able to read (no doubt a case of the pot calling the kettle black) and Brandon accused Deon of and#8220;being rude,and#8221; then Brandon told Deon he and#8220;needed to shut up and stop talking about people.and#8221;

They argued on and on, then Brandon said and#8220;You can fight me outside.and#8221; My guess is these two Neanderthals were not taking physics.

The knife incident

After class our two scholars were wandering around on campus (Brandon must have just come from the cafeteria) when Brandon approached Deon from behind with a couple of buddies (a true sign of bravery) and threw him on the ground, face up.

Brandon moved a butter knife up and down Deonand#8217;s cheek in a slashing motion, then tried to cut his throat, but the handle broke off. As Deon testified, and#8220;Brandon was trying to cut, but it wouldnand#8217;t cut.and#8221; When the handle of the knife broke off, Brandon and the other two thugs took off leaving the three and one half inch blade.

Guilty

The juvenile court found that Brandon T. committed a felony and#8212; assault with a deadly weapon. He was placed on home probation, which means he didnand#8217;t have to go to school and got to play video games all day. Apparently not being happy about that, Brandon T. appealed with his free lawyer.

Assault with a deadly weapon

Under Penal Code section 245, a and#8220;deadly weaponand#8221; is any and#8220;any object, instrument, or weapon which is used in such a manner as to be capable to producing and likely to produce, death or great bodily injury.and#8221;

All sides agreed the knife was a butter knife, which is not per se a deadly weapon. The question became whether Brandon used the plastic utensil and#8220;in a manner as to be capable of producing and likely to produce, death or great bodily injury.and#8221;

It did not help the prosecutorand#8217;s case that the knife drew no blood and put only and#8220;a small scratchand#8221; on Deonand#8217;s cheek. Was the knife capable of producing death or great bodily injury? It would be if our boys were in prison, but they arenand#8217;t and#8212; yet.

The Court noted that in other cases unique objects were found to be deadly weapons such as a sharp pencil stuck into a victimand#8217;s neck. On the other hand, a broomstick with a plastic vacuum attachment was not. Seems like a perfect murder weapon.

Ruling

The Court concluded the butter knife was not a deadly weapon as Brandon T. merely and#8220;attempted to cut Deonand#8217;s cheek and throat.and#8221; While I disagree, the Court concluded there was insufficient evidence of assault with a deadly weapon, instead finding him guilty of misdemeanor assault.

So our stellar student Brandon T. was victorious, therefore denied the right to stay home and play video games, instead being allowed to return to his high school where surely he will flourish.

Jim Porter is an attorney with Porter Simon, with offices in Truckee, South Lake Tahoe and Reno. He is a mediator and was the Governor’s appointee to the Fair Political Practices Commission and McPherson Commission, both involving election law and the Political Reform Act. He may be reached at porter@portersimon.com or at the firmand#8217;s website http://www.portersimon.com.


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