I. FACTS

In September 2019, Peterson and her approximately 55-year-old sister, Renee,

were living at the home of their 89-year-old mother, Maryann. Maryann used a walker

to move around and took medication for her heart and her arthritis. Peterson helped

with Maryann’s care by cooking, cleaning, and assisting with other various day-to-day

tasks. Another sister, Sandra, drove the mother to her health care appointments and

2 was responsible for administering her medications. Maryann’s home had a

surveillance system—installed so the family could keep watch on her late husband in his

old age—which recorded audio and video and streamed footage live over the internet.

On the morning of September 23, as Peterson was making oatmeal for Maryann’s

breakfast, Renee saw her sprinkle something into the bowl. Maryann commented that the

oatmeal tasted funny but finished it anyway. Not long after, Peterson’s brother texted

Sandra asking why their mother was asleep at the table. Sandra checked the cameras and

saw her mother was indeed slumped over the table, apparently fast asleep. This struck the

siblings as odd because Maryann didn’t usually nap during the day. Sandra rewound and

watched earlier footage and saw Peterson walk by without checking on Maryann a

number of times (a detective who reviewed the footage later testified he saw Peterson

walk by Maryann and ignore her a total of 36 times).

When the brother called the house, Peterson hung up on him. Sandra called next

and asked to speak with Maryann, but Peterson said she was visiting the neighbor and

couldn’t come to the phone. Sandra hung up and called 911. As she continued to monitor

the live feed, she saw Peterson still ignoring Maryann asleep at the table.

Peterson did not come to the door when the paramedics arrived. As they

contemplated forcing their way in, the defendant and Renee finally answered. The

paramedics woke Maryann with smelling salts, and she told them she was fine and didn’t

need go to the hospital. Sandra noticed Maryann was slurring her words and not making

sense, so she encouraged her to get additional medical attention, and Maryann ultimately

3 acquiesced. Later, after these events were over, Maryann couldn’t remember anything

that happened between eating her oatmeal and coming home from the hospital.

According to Sandra and Renee, Maryann still seemed high or out of it when they

saw her at the hospital. She was talking in a high-pitched voice and kept asking why she

was in the hospital. Sandra insisted on a urine test, which came out positive for

benzodiazepine.

When Maryann got home from the hospital that evening, Sandra and Renee sat her

down on the couch, placed her walker next to her, and told her not to move. A few

minutes later, Maryann stood up and fell (something the siblings said she didn’t have a

history of doing). When Sandra found her, she had a gash on her shin, so Sandra took her

back to the hospital. The cut did not heal well, and Maryann was still being treated for it

four months later, at the time of trial.

In October of that year, about a month after the oatmeal incident, Peterson

threatened Maryann and told her, “You’re not calling anybody,” when Maryann said she

was going to call Peterson’s probation officer. Two days later, Peterson told Maryann and

Renee that “[i]f anybody calls the police I personally will kill them.”

On October 31, 2019, the Riverside County District Attorney filed a petition

alleging Peterson violated probation. The next month, the district attorney charged

Peterson with poisoning (Pen. Code, § 347, subd. (a)(1); count 1), elder abuse likely to

produce great bodily injury (Pen. Code § 368, subd. (b)(1); count 2), dissuading a witness

from reporting a crime (Pen. Code § 136.1, subd. (c)(1; count 3), and assault with a

4 deadly weapon. (Pen. Code § 245, subd. (a)(1), count 4, unlabeled statutory citations

refer to this code.) The information also alleged Peterson personally inflicted great bodily

injury on a victim 70 years old or older. (§§ 12022.7, subd. (c), 1192.7, subd. (c)(8).)

Peterson waived her right to a jury and proceeded to a bench trial. The prosecution

called a Riverside detective to testify about his experience with benzodiazepines. The

detective said he used to work in the drug unit and his primary experience with

benzodiazepines was with their use as a street narcotic. He said benzodiazepines are used

in the medical community to treat anxiety and are found in prescription medications such

as Xanax, Valium, and Klonopin, but some people take them recreationally, to make

them feel high or “loopy.” He said that, based on his own research, elderly people should

not be prescribed benzodiazepines (precisely because they can make you feel loopy). His

review of Maryann’s medical records confirmed she had never been prescribed

benzodiazepines.

Before rendering his verdict, the trial judge expressed concern over the state of the

evidence. He said he was troubled by the fact the prosecution had not presented sufficient

evidence regarding benzodiazepines in general (such as their effects, what constitutes a

recommended dosage, and what constitute a lethal one). Also worrisome was the lack of

evidence of how much of the drug Peterson had administered to Maryann.

Appearing exasperated, the judge told the prosecution, “I do not have the benefit

of a doctor. I do not know what the pharmacokinetics of benzodiazepines are. The best I

have is an officer who indicates . . . that he is familiar with benzodiazepines and that

5 they are not typically prescribed to elderly folks. . . . I don’t know what the LD is for it,

would be, which would be lethal dose. I don’t know what the therapeutic dose was. I

don’t know how much was in her system. I don’t know what its half-life is in her

urine. I don’t know whether benzodiazepines would cause the symptomology that I’m

seeing. . . . [¶] . . . When you say benzodiazepines, I couldn’t tell you if it was a stimulant

or a depressant. I don’t know whether the symptomology displayed by the victim in this

case is consistent with an overdose of benzodiazepines. I don’t know whether it’s

consistent with a therapeutic dose of benzodiazepines.” In addition the court had

“problems finding that [the mother’s] fall was a result of an overdose. I don’t know

whether she had an overdose.” In short the court said, “[m]y biggest problem is an

understanding of what benzodiazepines can do. I suspect [the prosecution is] probably

right. But I don’t have anything that tells me that.”

Despite these reservations, the judge concluded Peterson was guilty of poisoning

and assault with a deadly weapon. The judge found her guilty on the other counts as well

but found not true the great bodily injury enhancement. Additionally, the judge found

Peterson had violated her probation and revoked it.

The judge sentenced Peterson to a total of nine years in prison, consisting of five

years for the poisoning conviction, a consecutive three-year sentence for dissuading a

witness, and a consecutive one-year term (one-third the midterm) for the probation

violation. He stayed the punishment for the assault with a deadly weapon and elder abuse

convictions under section 654. As for fines and fees, in case E075531/RIF1904529 the

6 judge imposed a $300 restitution fine, $160 in court operations assessments, and $120 in

criminal conviction assessments. In case E074793/RIF1703193 he imposed an additional

$300 restitution fine, a $40 court operations assessment, and a $30 criminal conviction

assessment.

Peterson timely appealed both the revocation of probation and the criminal

convictions.1

II. ANALYSIS

Peterson raises the following three arguments on appeal: (1) there is insufficient

evidence to support her convictions for poisoning and assault with a deadly weapon;

(2) the judge misconstrued the law when he concluded a consecutive sentence for the

dissuading a witness conviction was mandatory; and (3) the judge violated her due

process rights under People v. Dueñas (2019) 30 Cal.App.5th 1157 by imposing certain

fines and fees without determining whether she had the ability to pay them.

We conclude there is insufficient evidence to support her two convictions and we

must remand for resentencing, which moots any sentencing errors.

When reviewing a sufficiency of the evidence claim, we must determine

“ ‘ “whether, on the entire record, a rational trier of fact could find the defendant guilty

beyond a reasonable doubt.” ’ ” (People v. Smith (2005) 37 Cal.4th 733, 738-739; People

v. Johnson (1980) 26 Cal.3d 557, 578.) We view the evidence in a light most favorable to

1 Peterson’s appeals in both cases (E074793, E075531) are consolidated here. However, because Peterson doesn’t challenge the revocation of probation on its own, we limited the above summary of the factual background and procedural history to the second case (E075531).

7 the judgment and “resolve all evidentiary conflicts and questions of credibility ‘in favor

of the verdict.’ ” (People v. Brady (2018) 22 Cal.App.5th 1008, 1014, quoting People v.

Cardenas (2015) 239 Cal.App.4th 220, 226-227.) We may not reverse the judgment

“unless it appears ‘that upon no hypothesis whatever is there sufficient substantial

evidence to support [the conviction].’ ” (People v. Bolin (1998) 18 Cal.4th 297, 331,

quoting People v. Redmond (1969) 71 Cal.2d 745, 755.)

A. Poisoning

Peterson argues the record is insufficient to support a finding that she used the

benzodiazepine as a poison because there was no evidence of how much of the drug she

added to Maryann’s food nor was Maryann’s reaction to it sufficient to infer that the

amount rose to poisonous or seriously harmful levels. The People concede that

benzodiazepines “do not constitute poison per se,” but they argue “the way they were

used in this case” makes them so. We agree with Peterson.

As relevant here, a person is guilty of poisoning under section 347 if they

“willfully mingle[] any poison or harmful substance with any food, drink, medicine, or

pharmaceutical product . . . where the person knows or should have known that the same

would be taken by any human being to his or her injury.” (§ 347, subd. (a)(1).) The

statute does not define “poison” or “harmful substance,” nor is there a model jury

instruction for this offense providing guidance on the terms. However, for purposes of

murder by poison (§ 190.2, subd. (a)(19)), our Supreme Court approved of a definition of

the term that includes “ ‘any substance which, when applied to the body externally, or in

8 any way introduced into the system, without acting mechanically, but by its own inherent

qualities, is capable of destroying life.’ ” (People v. Van Deeler (1878) 53 Cal. 147, 148

(Van Deeler).) In accepting this definition, the court acknowledged poison is a difficult

term to define and “proximate accuracy” in the definition would have to be sufficient. (Id.

at p. 148.)

Even if we adopted this definition for our purposes, it wouldn’t be the end of our

legal standard analysis. The reason for this is twofold. First, while the definition of

poison for murder by poison requires a substance be “capable of destroying life,”

section 347 only requires that it cause injury when consumed by another person. (§ 347,

subd. (a)(1).) Additionally, section 347 also applies to the administration of a “harmful

substance,” which must mean something other than poison if the Legislature included it

in the statute following a disjunctive conjunction like “or.” Nevertheless, this definition

does help outline what kind of substances California law considers poisonous by limiting

it to any substance which “without acting mechanically, but by its own inherent

qualities,” works to cause injury. (Van Deeler, supra, 53 Cal. at p. 149.) Moreover, it

acknowledges that whether a given substance is poisonous is a highly contextual and

fact-specific question.

This interpretation is consistent with the scientific understanding of a poison. “[A]

fundamental tenet of toxicology is that the ‘dose makes the poison’ and that all chemical

agents, including water, are harmful if consumed in large quantities, while even the most

toxic substances are harmless in minute quantities.” (Mancuso v. Consolidated Edison

9 Co. of New York, Inc. (1999) 56 F.Supp.2d 391, 403, citing Federal Judicial Center:

Reference Manual on Scientific Evidence, Second Edition, “Reference Guide on

Toxicology,” at 185, 2004 WL 48156, 2 [“There are three central tenets of toxicology.

First, ‘the dose makes the poison’; this implies that all chemical agents are intrinsically

hazardous—whether they cause harm is only a question of dose.”].) In other words, there

are no inherent, per se poisons; what makes a substance poisonous is its dose and

application.

As a result, proving a given substance is poisonous or harmful requires more than

simply proving it can be harmful or hazardous under certain circumstances. For

something to be poisonous or harmful it must be proven harmful in the specific

circumstances, in the specific quantities, and in the specific ways in which it is used. This

is the difference between potentiality and actuality. (See In re B.M. (2018) 6 Cal.5th 528,

535 (B.M.) [noting that in the context of determining whether an object was used as a

deadly weapon, “it is inappropriate to consider how the object could have been used as

opposed to how it was actually used”].)

It follows that the trial judge’s concerns about the state of the evidence in this case

were well founded. As he observed, the prosecution failed to present evidence on a

number of important questions, such as: what constitutes a lethal dose of benzodiazepine

for someone in Maryann’s position (i.e., an 89-year-old woman on heart and arthritis

medication but otherwise healthy), what constitutes a therapeutic dose, and how much

Peterson administered. Without this information it was impossible for the judge to know

10 what range of doses might have been poisonous or harmful (i.e., injurious), place the dose

Peterson used on that spectrum, and conclude Peterson had used the benzodiazepine as a

poison or a harmful substance. The judge was certainly correct that “prescribed

medications, all of them can be dangerous.” (Italics added.) His error was failing to hold

the prosecution to their burden of proving beyond a reasonable doubt that the prescription

medication in this case actually was injurious as used.

As evidence Peterson administered a poisonous or harmful dose, the People point

to Maryann’s behavior on the drug and the detective’s testimony that it was consistent

with the drug’s side effects. They argue that because the dose Peterson administered was

high enough to produce dizziness, sleepiness, and disorientation in Maryann, it must have

been a harmful amount. But dizziness, sleepiness, and disorientation are common side

effects of therapeutic doses of the drug, not poisonous or harmful doses. Indeed, it is

because of these common side effects that the detective said benzodiazepines shouldn’t

be prescribed to elderly people. As the judge acknowledged, “I don’t know whether the

symptomology displayed by the victim in this case is consistent with an overdose of

benzodiazepines. I don’t know whether it’s consistent with a therapeutic dose of

benzodiazepines.”

Additionally, we disagree with the People that the detective’s opinion that

benzodiazepines shouldn’t be prescribed to elderly people can save the conviction. That

testimony was problematic for multiple reasons. First of all, there are the obvious

foundation issues that arise when a nonmedical expert offers a medical opinion. Second,

11 the detective was simply expressing his personal view that elderly people shouldn’t take

the drug. He did not say whether he knew if physicians actually do prescribe

benzodiazepines to elderly people.2 Third and most importantly, we return to the fact we

have no way of knowing what dose was administered in this case. Even if we accept the

detective’s testimony that elderly people shouldn’t take benzodiazepines, there is no

evidence the amount Maryann consumed was poisonous or harmful such that it caused

her injury.

Simply put, on this record there is no evidence to infer Maryann’s symptoms were

consistent with an overdose, let alone evidence of how much of an overdose is necessary

to produce harmful and injurious results. While the evidence presented amply supports a

finding that Peterson drugged her mother with benzodiazepine, it doesn’t provide a basis

for concluding Peterson used the benzodiazepine as a “poison or harmful substance”

within the meaning of section 347.

Even if we assume the benzodiazepine was a poison or harmful substance as used

in this case, there is insufficient evidence Maryann was injured or Peterson “knew or

should have known” administering the drug to Maryanne would result in injury. The

statute requires the defendant must have “know[n] or should have known that the

2 We note that Peterson offers a number of compelling citations indicating that benzodiazepines are commonly prescribed to elderly people. (See “American Geriatrics Society 2015 updated Beers criteria for potentially inappropriate medication use in older adults. (J Am Geriatr Soc. 2015; 63: 2227-2246.); Olfson M., King M., Schoenbaum M.; Benzodiazepine use in the United States. (JAMA Psychiatry. 2015; 72: 136-142.); Benzodiazepine prescribing in older adults in U.S. ambulatory clinics and emergency departments (2001-10). (J Am Geriatr Soc. 2015; 63: 2074-2081.),” italics & fn. omitted.)

12 [substance] would be taken by any human being to his or her injury.” (§ 347,

subd. (a)(1).) This requires proof of two elements: first, that there was a cognizable

injury, and second that the defendant should have known or actually did know the

substance would injure the victim if consumed. This is similar to the requirement,

discussed in more depth below, that to be guilty of assault with a deadly weapon the

assailant must have “ ‘actual knowledge of the facts sufficient to establish that [her] act

by its nature will probably and directly result in injury to another.’ ” (B.M., supra, 6

Cal.5th at p. 534.)

Depending on the interpretation of the injury requirement, the prosecution here

either failed to offer evidence of an injury or failed to offer evidence Peterson knew or

should have known the poison would injure Maryann. This is because it’s unclear

whether section 347 requires that the poison itself must cause the injury, or whether any

injury resulting from the poisoning might satisfy this element. If the former, there is

simply no evidence here that the benzodiazepine harmed Maryann on its own. Indeed, the

evidence presented was that the hospital found nothing wrong with Maryann and sent her

home without any interventions the same day. Therefore, if the statute requires the poison

or harmful substance cause the injury, there is simply no evidence of injury in this case.

But even assuming, for the sake of argument, section 347 applies anytime a

defendant has some knowledge the poisoning will result in any injury, there is

insufficient evidence Peterson had any knowledge or should have had any knowledge

Maryann would be injured. The only injury Maryann suffered was the wound to her shin

13 which resulted from her falling several hours after she consumed the drug. But the

prosecution presented no evidence Peterson knew or should have known such a fall or

such an injury was a likely result of putting (some amount) of benzodiazepine in

Maryanne’s breakfast. Moreover Maryann fell after Sandra and Renee brought her back

from the hospital—after several hours and multiple third-party interventions. We

therefore conclude there was insufficient evidence to permit the court to find that at least

one, and maybe even two of the elements of section 347 violation had been satisfied.

B. Assault with a Deadly Weapon

In a similar vein, Peterson argues the record is insufficient to support the assault

with a deadly weapon conviction because there was no evidence she used

benzodiazepines (which are not deadly per se) in a deadly manner. Again, we agree.

Section 245, subdivision (a)(1), criminalizes “an assault upon the person of

another with a deadly weapon or instrument other than a firearm.” “ ‘As used in

section 245, subdivision (a)(1), a “deadly weapon” is “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.” ’ ” (B.M., supra, 6 Cal.5th at pp. 532-533.) “Some few objects,

such as dirks and blackjacks, have been held to be deadly weapons as a matter of law; the

ordinary use for which they are designed establishes their character as such. [Citations.]

Other objects, while not deadly per se, may be used, under certain circumstances, in a

manner likely to produce death or great bodily injury. In determining whether an object

not inherently deadly or dangerous is used as such, the trier of fact may consider the

14 nature of the object, the manner in which it is used, and all other facts relevant to the

issue.” (People v. Aguilar (1997) 16 Cal.4th 1023, 1029.) “Objects which are not

inherently dangerous but which have been found to be a deadly weapon include ‘a

pillow . . . ; an automobile . . . ; a large rock . . . ; a razor blade . . . ; [and] a fingernail

file.’ ” (People v. Montes (1999) 74 Cal.App.4th 1050, 1054.)

Much like how an otherwise benign substance can be a poison depending on how

it is actually used, California law recognizes that an otherwise benign object may be used

in such a way that it becomes an instrument of death or great bodily harm. Thus, the

evidence supporting this conviction fails for the same reason the evidence supporting the

poison conviction fails—we don’t know how much of the drug is harmful to someone

like Maryann and we don’t know how much of the drug Peterson administered.

The People argue there is sufficient evidence to support this conviction because

the benzodiazepine caused Maryann to fall and cut her shin after she returned from the

hospital. According to the People, this means the amount Peterson administered was

“capable of causing and likely to cause death or great bodily injury.” (CALCRIM

No. 875.) The prosecution did, at least, present evidence that benzodiazepines can cause

dizziness or disorientation. At trial the detective testified that doctors are “told not to

prescribe [benzodiazepines] to the elderly because it can cause a lot of problems, such as

dizziness, falls, accidents.” But this argument fails for the simple reason that the judge

concluded the evidence was insufficient to support an inference that Maryann’s fall was

caused by an overdose of benzodiazepine.

15 Nor can the People point to evidence of any dose as evidence the drug was used as

a deadly weapon. To begin with, therapeutic doses of medicine are definitionally not

deadly weapons. More importantly, however, it is not enough that a claimed weapon be

capable of producing death or injury; the manner in which it is used must be likely to

produce death or great bodily injury. (B.M., supra, 6 Cal.5th at pp. 532-533.) At best the

evidence indicated that drugging Maryann made a fall more likely, not that it made it

highly probable. Even assuming a fall was probable, though, there was little evidence that

serious injury was a likely outcome. (Ibid.)

Finally, even accepting that any amount of a drug which produced dizziness was

likely to cause Maryann serious injury or death, assault still requires the prosecution to

prove Peterson had “ ‘actual knowledge of the facts sufficient to establish that [her] act

by its nature will probably and directly result in injury to another.’ ” (B.M., supra, 6

Cal.5th at p. 534.) There is no evidence in the record that Peterson had actual knowledge

that drugging her mother would “probably and directly” result in Maryann’s fall and

injury hours later.

Accordingly, both the poisoning (count 1) and assault with a deadly weapon

(count 4) convictions must be reversed for insufficient evidence.

Peterson also argues the judge erred in sentencing because he mistakenly

concluded he lacked discretion to sentence Peterson to a concurrent term for her

dissuading a witness conviction, and imposed fines and fees without determining whether

Peterson had the ability to pay them. These arguments are moot given we are reversing

16 the principal term and remanding for full resentencing. On remand, Peterson is free to

raise all sentencing and ability-to-pay issues.

III. DISPOSITION

We reverse for insufficient evidence the convictions for counts 1 and 4, and we

remand to the trial court for resentencing on the remaining convictions.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

SLOUGH

J. We concur:

MILLER

Acting P. J.

RAPHAEL

J.

17