Koback

*325 Defendant Brian Keith Koback walked into a rental car company office and stole a set of car keys. When confronted by *326 three employees in the parking lot, defendant told the men to back off or he would "fuck" them up. He then walked across the street. Undeterred, the three employees followed defendant to a motel parking lot where they again confronted defendant and demanded that he return the keys. Defendant made a tight fist around one of the key fobs, so that the ignition portion of the key was sticking out between his knuckles and, from within arm's reach, lunged at one of the employees while swiping or swinging at the employee's torso. Luckily, defendant did not make contact. When the employees backed off, defendant jumped a fence and tried to flee. Police officers arrived and pursued defendant. Officers subdued defendant after a brief struggle, during which three of the officers suffered minor injuries.

Defendant was charged with and convicted of robbery, assault with a deadly weapon, and resisting arrest. Defendant admitted he had suffered a strike conviction, and the trial court sentenced him to state prison for 14 years four months. On appeal, defendant argues:…

I

INTRODUCTION

I respectfully disagree with my colleagues' conclusion that swiping a car key once with unknown force at a person's clothed torso from a few feet away, then fleeing, constitutes assault with a deadly weapon. The majority reaches this outlier holding only by leaving the record and engaging in gross speculation-they affirm the conviction based on what could have happened had the defendant, Brian Koback, not fled but instead continued swiping *334 the key at the victim and perhaps, possibly, aimed for his face or neck. This is error. Where the charged offense is assault with a typically innocuous object alleged to be deadly as used (an as-used aggravated assault), California Supreme *684 Court precedent requires the prosecution prove the defendant used the object with force " likely to produce death or great bodily injury" (the force-used test). ( People v. Aguilar (1997) 16 Cal.4th 1023 , 1029, 68 Cal.Rptr.2d 655 , 945 P.2d 1204 , italics added ( Aguilar ).)

The only evidence regarding the force used in this case is the victim's testimony Koback swiped the key at him from a few feet away "with force" then immediately left the scene. How much force? Enough to…