Koback

*915 I. INTRODUCTION

Defendant Brian Keith Koback walked into a rental car company office and stole a set of car keys. When confronted by 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 him and demanded defendant return the keys. Defendant made a tight fist around one of the key fobs, so 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. 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: (1) his…

I

INTRODUCTION

For the second time, my colleagues refuse to follow the clear direction of the California Supreme Court in determining whether a person has used an *931 everyday object in a manner "likely to produce death or great bodily injury" such that they may be convicted of assault with a deadly weapon. ( *865 Pen. Code, § 245, subd. (a)(1) ; People v. Aguilar (1997) 16 Cal.4th 1023 , 1029, 68 Cal.Rptr.2d 655 , 945 P.2d 1204 ( Aguilar ).) Our Supreme Court vacated the majority's prior opinion after clarifying that standard in In re B.M. (2018) 6 Cal.5th 528 , 241 Cal.Rptr.3d 543 , 431 P.3d 1180 ( B.M. ). Undeterred, my colleagues reach the same result on remand, by distorting the trial record and misreading B.M. as holding death or serious injury is "likely" if there is "more than a mere possibility" of its occurrence. (Maj. opn. ante , at p. 860.) I dissent.

The issue we face is whether Brian Koback used a car key as a deadly weapon when he swung it once with unknown force at the victim's torso from a few feet away and missed. After the majority initially upheld Koback's conviction based on speculation about how a key could be used as a deadly weapon, our Supreme Court…