People v. Nealis

*Supp. 3Opinion

ROBERSON, P. J. —Appellant was convicted after jury trial of battery (Pen. Code, § 242) and assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)). The main issue raised in this appeal is whether, as a matter of law, a dog may ever be considered a “deadly weapon or instrument,” within the meaning of Penal Code section 245, California’s statute proscribing assault with a deadly weapon.1

I

On November 30, 1988, around 6 a.m., Roberto Robles was waiting for his girlfriend to drive him home. He was standing in the parking lot of Tiny Naylor’s Restaurant where he had just left work for the day. Robles observed appellant drive her car into the parking lot with a dog running alongside the car.

The dog attempted to attack Robles for nearly 10 minutes; it growled at him and attempted to bite him. Appellant called to the dog, urging it to attack Robles. When appellant drove away, the dog followed.

A few minutes later, appellant returned and Robles observed appellant and her dog attack his girlfriend, Diana Gutierrez. Gutierrez had just arrived, parked her car, and had begun walking to the restaurant. She passed by appellant, who was standing in back of a car with the hatchback open. Appellant ran up to Gutierrez and began screaming at her and calling her names.

Appellant began yelling, “Get her! Get her!” At this point, Gutierrez saw a doberman pinscher appear from behind the car, where appellant had been standing. The dog was not on a leash. It obeyed appellant’s command and attacked Gutierrez. It bit her leg and jumped for her arm. As Gutierrez was fending off the dog, she felt a “great big shove” and then appellant grabbed her by the throat and scratched her face.

Gutierrez screamed for her boyfriend to call the police. Appellant did not call off the dog; eventually, however, Gutierrez managed to fend off both appellant and the doberman.

*Supp. 4II

“A ‘deadly weapon’ within the meaning of Penal Code section 245, subdivision (a) 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. 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. (People v. White (1963) 212 Cal.App.2d 464, 465 [28 Cal.Rptr. 67]; People v. Russell (1943) 59 Cal.App.2d 660, 665 [139 Cal.Rptr. 661].)” (In re Jose R. (1982) 137 Cal.App.3d 269, 275-276, fn. omitted [186 Cal.Rptr. 898].) Thus, whether a specific dog in a given case is a “deadly weapon or instrument” is ultimately a question of fact for the jury. We deal in this opinion with the question whether, as a matter of law, a dog may be considered a “deadly weapon or instrument” within the meaning of section 245.