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People v. Russell - 129 Cal. App. 4th 776, 28 Cal. Rptr. 3d 862 (2005)

Rule:

A moving object can be considered a deadly weapon when the force of the object's movement can be deadly and a defendant pushes a victim into its path. Thus, the act of pushing a victim into the path of an oncoming motor vehicle represents the use of a deadly weapon. An automobile weighing several thousand pounds and underway on a street is capable of seriously injuring and often killing any person it strikes. 

Facts:

The jury convicted appellant-defendant Donald Russell of assault with a deadly weapon or by means of force likely to cause great bodily injury. Russell raised three main arguments on appeal: First, there was insufficient evidence to establish a violation of Cal. Penal Code § 245(a)(1) under the theory that he committed an assault with a deadly weapon when he pushed the victim into the path of an oncoming vehicle. Second, there was insufficient evidence to establish a violation of under the theory that his act of pushing the victim into the street where the victim was struck by an oncoming vehicle was an act “likely” to cause great bodily injury. Finally, Russell argued reversal is required because the jury was given a combined instruction on both prosecution theories and the jury did not specify the theory on which it found Russell guilty of violating § 245(a)(1).

Issue:

Did defendant Russell’s action of pushing the victim into the path of a moving automobile constituted the use of a deadly weapon within the meaning of Cal. Penal Code § 245(a)(1)?

Answer:

Yes

Conclusion:

Affirming the conviction, the Court of Appeal of California held that pushing a person into the path of a moving automobile constituted the use of a deadly weapon within the meaning of § 245(a)(1). Although defendant-appellant Russell did not possess or control the car, he used its deadly properties for the purpose of committing an assault. The jury could reasonably infer that Russell was aware of the presence of the car and that he intended to push the victim into the path of the car. Moreover, pushing a person into the path of a moving automobile was an act that was likely to cause great bodily injury within the meaning of § 245(a)(1). The victim's injuries were relatively minor only because the driver saw the victim and quickly maneuvered to avoid running over him.

As for the applicable standard of review in determining the sufficiency of the evidence, the Court of Appeal reviews the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.

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