Opinion
[Copyrighted Material Omitted] [Copyrighted Material Omitted] REVIEW GRANTED BY CAL. SUPREME COURT
Opinion certified for partial publication.
Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception for parts II, III, IV and V of the Discussion.
See footnote, ante, page 530.
Reprinted without change for tracking pending review and disposition by the Supreme Court.
Superior Court of Santa Clara County, No. 168311, Diane Northway, Judge.
COUNSEL
Patricia L. Watkins and Meredith J. Watts, under appointments by the Court of Appeal, for Defendants and Appellants.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Laurence K. Sullivan and Rene A. Chacon, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
ELIA, J.
Raymond Aguilar and Richard Perez were charged with assault with a deadly weapon or instrument or by means of force likely to produce great bodily injury (Pen. Code, section 245, subd. (a) (1)) and robbery. (sections 211, 212.5, former subd. (b).) As to both counts, it was alleged that great bodily injury was inflicted. (sections 12022.7, 1203, subd. (e) (3).) After a jury trial, Perez was found guilty of both charges. The great bodily injury allegations were found to be true. Aguilar was found guilty of assault with a deadly weapon or instrument or by means of force likely to produce great bodily injury. The jury found not true the great bodily injury allegation. Aguilar was acquitted of robbery and the lesser offense of grand theft.
All further unspecified statutory references are to the Penal Code.
On appeal, Perez and Aguilar both argue that their convictions under section 245, subdivision (a) (1) should be reversed because 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].) With respect to Aguilar, we agree. We will reverse his conviction under section 245, subdivision (a) (1).
Perez also argues (1) the trial court committed reversible error by failing to sua sponte instruct under CALJIC No. 2.71; (2) the prosecutor committed misconduct; (3) there was insufficient evidence that Perez personally caused great bodily injury; (4) the jury was incorrectly instructed regarding the allegation that Perez personally inflicted great bodily injury; and (5) Perez's robbery sentence should have been stayed. (section 654.)
We shall conclude these arguments are without merit and affirm Perez's conviction.
Facts and Procedural Background
On July 20, 1993, about 10:30 p.m., Donald Tenny, Jr., left his Gilroy home to rollerblade through town. Tenny was carrying his small dog and wearing stereo headphones. As Tenny crossed Sixth Street, a sedan with four passengers began following him. The car passed Tenny and then parked. The four passengers got out of the car. When Tenny reached the group's location, the group circled him. The four males were appellant Perez, Bobby Nieblas, appellant Aguilar, and Edward Prado.
Tenny did not know the men. He guessed they were all under 19 years of age. Tenny took off his hat so the males could see he was an adult. Tenny told the males that they had mistakenly identified him and that he was a "family man." Tenny believed he recognized Edward Prado and stated, "Jesse ... what's the problem?" Prado answered that he was not named Jesse.
Immediately thereafter, Tenny felt himself being struck. Perez struck first. Tenny also saw Nieblas hit him. Tenny felt kicks to his body as he was on the ground. Tenny tried to protect his dog. Although Tenny tried to get up from the ground, his assailants knocked him back down three times. Perez, Nieblas and Aguilar struck Tenny throughout the ordeal. Perez and Nieblas were the most "aggressive." Tenny was kicked "like [a] football" eight to twenty-five times. The blows were mainly kicks and "very few" of the blows were with hands.
After falling to the ground for the third time, Tenny felt Prado try to pull Tenny away from the assailants and help him to his feet. To try and protect himself from blows, Tenny put his head in Nieblas's midsection and grabbed Nieblas. Prado did not strike Tenny.
Tenny was never an aggressor. He told the group that he wanted to leave and asked why he was being assaulted. When Perez asked for Tenny's watch and billfold, Tenny said he had no billfold. Perez stated, "You will die for that." Thereafter, Tenny sustained the "worst" blows from Nieblas, Aguilar and Perez. Later, Tenny discovered his watch missing. After about 14 minutes, the group left in their car.
Neighbors came out to assist Tenny. Gilroy Police Officer Taryn Hathaway responded at 12:31 a.m. Hathaway observed a battered and bloody victim wearing rollerblades. Tenny was agitated, distracted and concerned about his missing dog. Tenny looked "severely" injured.
Gilroy Police Officer Ronald Latham executed a traffic stop of the vehicle Perez was driving because it matched a broadcast description. The car was stopped about one mile from the scene of the fight. Officer Latham noticed that Nieblas was the front passenger, Edward Prado sat behind Perez and Aguilar sat behind Nieblas. On the floorboard in front of Aguilar, Officer Latham seized a watch, which was Tenny's. From the area behind Perez and Nieblas, Officer Latham seized bloody clothes.
A police officer drove Tenny to the location of the vehicle stop for a showup. Tenny positively identified the car, all four passengers, and his watch.
Tenny suffered a concussion, a broken left thumb, and had a cast placed on his ankle. A wound to the back of his head was stitched closed. Since the assault, Tenny suffers from migraine headaches. Tenny's jaw swelled and now makes popping noises when he eats. Tenny suffered bruises to his hips, legs, feet, thighs, and ribs. Tenny no longer rollerblades or goes out at night and is easily upset.
Defense Case
Nineteen-year-old appellant Perez testified in his defense. Perez testified that at 6:30 p.m. he picked up Bobby Nieblas and then picked up Ray Aguilar and cruised around Gilroy. When they stopped at Taco Bell, Perez heard Nieblas and a passing rollerblader yell at each other. Nieblas entered the car and said that the rollerblader "flipped [Nieblas] off." The group cruised until about 9 p.m. They picked up Edward Prado from his workplace. After buying beer, the group went to a park.
After leaving the park, Perez saw Tenny rollerblading on Sixth Street. Nieblas stated that Tenny was the person who had "flipped him off." Nieblas asked Perez to follow Tenny. When Perez stopped the car, Prado and Nieblas exited. Perez observed Tenny punch Nieblas and then the two were "tangling" to the ground. Prado was in contact with Tenny and Nieblas but Perez could not discern the type of contact. Perez heard Tenny state that he was 30 years old and ask what was going on. Prado responded by saying, "For that you must die." Tenny then tackled Prado and Nieblas "tangled" with Tenny again.
Tenny testified that he was not at Taco Bell that night.
According to Perez's testimony, Aguilar and Perez stayed out of it. They stood watching on the sidewalk. When Tenny got on top of Nieblas, Perez intervened to separate the two. Perez told the group they had to leave. The contact with Tenny lasted five minutes. Perez did not demand the watch or wallet. While in the car later, Prado stated, "Whatever you say, the watch fell off him."
On cross-examination, Perez testified that he consumed two "bowls" of marijuana that evening. Perez denied telling Prado to leave town. Perez admitted going to Prado's home after Perez found out Prado had made a "deal" with Tenny.
Twenty-year-old appellant Aguilar testified that Nieblas was "first" involved with Tenny while Prado was nearby. While Nieblas and Tenny fought in the bushes, Aguilar could not tell what Prado was doing. Aguilar did not touch Tenny.
On cross-examination, Aguilar testified that following the fight he was seated behind Perez. Aguilar testified that he consumed three beers that night but did not smoke any marijuana. Aguilar stated that he was too far away from Tenny to strike him and did not touch him. Aguilar did not touch Tenny's watch. Aguilar told Nieblas and Prado that they were stupid to strike Tenny.
Bobby Nieblas, a juvenile, testified. At the time of trial, Nieblas had already admitted his involvement in the incident and served his time at a county youth facility. Nieblas stated that at Taco Bell a person on rollerblades looked at Nieblas. When Nieblas asked him what he was looking at, words were exchanged. Later, at San Ysidro Park, the group consumed beer. Nieblas smoked marijuana with Perez. Prado became "cocky" and struck Nieblas at the park. The group left the park at midnight. Nieblas insisted that Perez pull over when Nieblas spotted Tenny. Nieblas was not certain Tenny was the Taco Bell rollerblader.
After Nieblas asked Tenny whether he was the person who had "flipped him off," Tenny struck Nieblas and then the two exchanged blows. Tenny held on to Nieblas "real tight." Nieblas could not get away until Perez and Prado pulled Nieblas free. According to Nieblas, Aguilar was not involved at all, and Perez and Prado were involved only in pulling Nieblas free. Nieblas did not remember anyone asking Tenny for his possessions. In the car, after the fight, Prado said, "Whatever you do, say the watch fell off of him." The fight lasted three minutes. Nieblas suffered "contusions" from the fight.
On cross-examination, Nieblas testified that he was under the influence that night. Nieblas denied reporting to an investigator that he was the sole instigator. Nieblas denied that while at the park he discussed assaulting people.
Prosecution Rebuttal
Edward Prado testified. Prado was originally charged with respect to the incident. The charges were later dropped. Prado testified that Aguilar told him that Aguilar did not want to go to jail or want Prado to testify.
On the night of the fight, Prado got off work at 10 p.m. He joined Perez, Nieblas, and Aguilar. At a park, the group consumed beer. The group was approached by an older couple who called one of Prado's friends a "pussy." When the couple left, Nieblas asked Perez whether Perez would have "backed up" Nieblas if a fight had ensued. Perez stated that he would have "backed up" Nieblas and called Nieblas the "puss." Later, while traveling in Perez's car, Nieblas yelled at a passing rollerblader, "Fuck you," and gave him "the finger." Nieblas told Perez that he wanted to fight. Perez responded that he wanted to go home. Nieblas harassed Perez until Perez agreed to "back him up."
While the three others approached Tenny, Prado stayed in the parked car. As Nieblas fought, Tenny exclaimed "[S]top! You have the wrong person." Nieblas replied, "Fuck you." Tenny pleaded that he had a wife and a kid and he was 37 years old. Tenny called Prado "Jesse" and stated that he knew his Uncle Larry. Tenny tried to hold onto Nieblas as a shield while Perez kicked Tenny. Aguilar kicked Tenny in the back. When Prado observed a passing car stop to watch and Tenny start to cry, Prado pulled Tenny back and told Nieblas to let Tenny go. Prado was not certain who asked Tenny for his wallet. Perez mostly kicked Tenny's head.
Later, in Perez's car, Perez, Nieblas and Aguilar congratulated each other and exchanged "high five's." Aguilar stated that he got in "a good shot." Prado told the group that they were all stupid and that Tenny knew his uncle. Nieblas turned his bloody shorts inside out and wiped blood off his clothes. Perez and Aguilar called each other stupid for taking Tenny's watch. Nieblas told Aguilar to report having seen Tenny at Taco Bell and that he started "shit" with the group. While transported by police, Aguilar stated that no one should give a statement. Two weeks later, Aguilar instructed Prado to blame it all on Nieblas. Aguilar asked Prado to assume responsibility for Tenny's watch since the charges against Prado had been dropped. Nieblas later asked Prado if he had his "story" down. On two occasions, Perez visited Prado's home demanding to know what Prado would say in court.
Perez was convicted of assault with a deadly weapon or instrument or by means of force likely to produce great bodily injury. (section 245, subd. (a) (1).) He was also convicted of robbery. (sections 211, 212.5, former subd. (b).) The jury found true both great bodily injury allegations. (sections 12022.7, 1203, subd. (e) (3).) Perez was sentenced to state prison for a total term of six years. The trial court chose robbery as the base term, imposed the midterm of three years, imposed a consecutive three-year term on the great bodily injury enhancement, and imposed a concurrent term on the assault charge. The trial court ordered Perez housed at the California Youth Authority (CYA).
Aguilar was convicted of assault with a deadly weapon or instrument or by means of force likely to produce great bodily injury. The jury found not true the great bodily injury allegation. The jury acquitted Aguilar of the robbery charge and the lesser offense of grand theft. The trial court sentenced Aguilar to state prison for three years. The trial court ordered Aguilar housed at CYA.
Both Aguilar and Perez appeal. Discussion
I. 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. The jury was instructed that the charge could be proved either of two ways: by proof of an assault with the use of 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). Thus, appellants argue 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].
Perez raised the argument in his brief and codefendant Aguilar adopted the same argument in his brief.
The prosecutor argued, "[h]ands and feet can be deadly weapons, and you don't have to be a black belt in karate, like sometimes you see on television. It's the manner in which the hand or feet are used. If they are used in such a manner that it could cause, could cause great bodily injury, then those become dangerous weapons.... [¶] So if three guys hang around, and one guy is on the ground with roller blades on and try to kick him and actually miss, they have committed assault with a deadly weapon."
In addressing appellants' argument, we first consider (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. [2] 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].) 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 ...." (Italics added.)
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], "Therefore, 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. "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 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).
We believe that 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. We do not think 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. We believe 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.
Our conclusion is supported by the fact that defining "deadly weapon or instrument" to include feet and hands would make redundant the clause "force likely to produce great bodily injury." This is because 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. We believe 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.
Although no case has considered this precise issue, other courts have dealt with related concerns. Their conclusions support our analysis. Most recently, 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.
.) With respect to the issue we must decide, Davis noted, "Thus, whether appellant can commit a public offense of assault with a deadly weapon with his hands presents an interesting issue of first impression, but one this court does not have to reach." (42 Cal.App.4th at p. 815
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 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 our 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) section 272, pp. 255-256.)
Although these cases did not consider the precise issue with which we are confronted, we believe they support our conclusion that hands and feet cannot, as matter of law, constitute deadly weapons under section 245, 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).
Having so decided, it is clear the prosecutor's argument in this case was improper. 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, ..." Further, the jury was instructed that appellants could be convicted of violating section 245, subdivision (a) (1) either based on an assault with a deadly weapon or instrument or by force likely to produce great bodily injury. We must now consider whether that error requires reversal under People v. Green, supra, 27 Cal.3d 1 and People v. Guiton, supra, 4 Cal.4th 1116.
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.)
Recently, 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 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.)
In this case, 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). Thus, it would appear that 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-we believe 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, we believe 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, we believe 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 used force likely to produce great bodily injury. For these reasons, Guiton compels reversal of Aguilar's conviction under section 245, subdivision (a) (1).
Because we conclude Aguilar's conviction should be reversed, we need not address the other contentions raised in his appeal.
II. -V.*
Disposition
Aguilar's conviction is reversed. Perez's conviction is affirmed.
Premo, Acting P. J., and Mihara, J., concurred.