No. F071892.

THE PEOPLE, Plaintiff and Respondent, v. ALBERTO LIZARRAGA, Defendant and Appellant.

Court of Appeals of California, Fifth District.

Attorney(s) appearing for the Case

Deborah L. Hawkins , under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris , Attorney General, Gerald A. Engler , Chief Assistant Attorney General, Michael P. Farrell , Assistant Attorney General, and John W. Powell , Deputy Attorney General, for Plaintiff and Respondent.


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



Alberto Lizarraga was arrested and placed in Kern County jail for a felony, apparently attempted murder. While in custody he incurred three additional charges. In this case, a jury found him guilty of assault with a deadly weapon on a correctional officer. Lizarraga concedes he committed an act that could be construed as an assault, but argues the verdict is not supported by substantial evidence because the "weapon" used in the assault was not a deadly weapon. We disagree and affirm the judgment.


The information charged Lizarraga with assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1) — count 1),1 assault on a peace officer with a deadly weapon (§ 245, subd. (c) — count 2), possession of a weapon while incarcerated (§ 4502, subd. (a) — count 3), misdemeanor destruction of evidence (§ 135 — count 4), and misdemeanor obstruction of a peace officer during the performance of his duties (§ 148, subd. (a)(1) — count 5). The first three counts also alleged Lizarraga (1) suffered two prior convictions which constituted strikes within the meaning of section 667, subdivisions (b)-(i), and (2) served a prior prison term within the meaning of section 667.5, subdivision (b). The first two counts alleged Lizarraga suffered two prior convictions for serious felonies within the meaning of section 667, subdivision (a).

One of the prior strike allegations and one of the prior serious felony allegations were dismissed prior to trial. Count 1 was dismissed after the close of evidence.

The charges arose out of a single incident. Lizarraga, who was incarcerated awaiting trial, became upset and complained to Kern County Deputy Sheriff Robert Hatch, who was preparing to serve meals to the inmates. When Hatch approached Lizarraga's cell, he noted Lizarraga had turned off the light inside his cell and the opening in the cell door through which the meal was to be served was partially closed. Suspecting Lizarraga intended to act out, Hatch approached the opening in the cell door with caution. When Hatch began to put the meal into the opening, Lizarraga extended his arm through the opening and lashed out at Hatch with an inmate manufactured weapon.

The weapon grazed Hatch's arm, but did not cause any injury. During the time it took to persuade Lizarraga to allow himself to be placed in handcuffs, Hatch heard the toilet being flushed several times, suggesting Lizarraga was disposing of the weapon.

Defense counsel made the same argument below as appellate counsel makes here: the inmate manufactured weapon was not a deadly weapon within the meaning of the statute. The weapon was not found when Lizarraga's cell was searched, so the only evidence describing the weapon was provided by Hatch. Defense counsel conceded Lizarraga lashed out at Hatch, but argued the weapon was not a dangerous weapon within the meaning of the statute and therefore Lizarraga was guilty of misdemeanor assault.

Appellate counsel continues this line of argument by asserting there was insufficient evidence the object was a dangerous weapon. Accordingly, Hatch's description of the weapon is the key to this appeal.

In his testimony, Hatch explained that inmate manufactured weapons are weapons typically made out of metal, plastic or contraband obtained by the inmate. Inmates have taken plastic bags and made a line or braid out of the plastic. Hatch then described the weapon Lizarraga used. "It was made of braided plastic. It was sharpened to a point.

The point was about an inch long. And he also had a sheet wrapped around it." When asked about the point of the weapon, Hatch explained, "It was made out of stainless steel, it looked like. It was like similar to a paper clip. But it was definitely sharpened to a point. I remember seeing the point. And the braided plastic was to be used as a handle. But he also had a sheet wrapped around the braided plastic that he used, like, as a grip. I'm not sure how far the weapon went into his hand."

On cross-examination, Hatch explained he was close to Lizarraga's hand when it came through the opening. However, he only saw the weapon for a short period of time, probably less than one second as Lizarraga's hand was moving rapidly. Hatch again described the weapon as "sharpened to a tip. And it was — it had braided plastic around it. And he also had a sheet around the braided plastic as well." The weapon extended about two and one half inches from Lizarraga's hand, including the sharpened metal.

When asked, Hatch stated he thought the tip may have been a paper clip, and extended approximately one half inch from the plastic. Hatch confirmed the weapon consisted of the cloth, the braided plastic, and the thin metal point. When asked if the metal point had been modified, Hatch stated" It had definitely been modified. I — I — it was definitely sharpened to a point. I just remember seeing the point and just backing up real quick."

The jury found Lizarraga guilty of assault on a peace officer with a deadly weapon, possession of a weapon while confined in a penal institution, and obstruction of justice. The jury could not reach a verdict on the destruction of evidence charge, and the charge was dismissed after a motion by the prosecutor. In a bifurcated proceeding, the trial court found true the prior conviction which constituted a strike (§ 667, subd. (b)-(i)) and also formed the basis for the prior serious felony enhancement (§ 667, subd. (a)) and the prior prison term enhancement (§ 667.5, subd. (b)).

The trial court initially sentenced Lizarraga to a 15-year term, but he was resentenced after he was convicted of various other crimes to a sentence of two years and eight months consecutive to the sentence imposed in the other cases.


I. Sufficiency of the Evidence

As stated above, Lizarraga argues the evidence is insufficient to support the assault with a deadly weapon conviction because the evidence Hatch provided was inadequate to establish Lizarraga used a deadly weapon when he assaulted Hatch.

Our review of the sufficiency of the evidence is deferential. We "`review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence — that is, evidence which is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.'" ( People v. Hillhouse (2002) 27 Cal.4th 469, 496; People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 681.) We focus on the whole record, not isolated bits of evidence. (People v. Slaughter (2002) 27 Cal.4th 1187, 1203, disapproved on other grounds in People v. Diaz (2015) 60 Cal.4th 1176, 1189-1190.) We presume the existence of every fact the trier of fact reasonably could deduce from the evidence that supports the judgment. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We will not substitute our evaluation of a witness's credibility for that of the trier of fact. (People v. Koontz (2002) 27 Cal.4th 1041, 1078.)

Although section 245 does not define the term deadly weapon, case law has defined the term as "`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.' [Citation.] 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. [Citation.] 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 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, 1028-1029.)

The trial court instructed the jury that a deadly weapon was" any object ... that is inherently deadly or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury." Great bodily injury was defined as "significant or substantial physical injury. It is an injury that is greater that minor or moderate harm."

We thoroughly summarized Hatch's testimony above. He described the weapon as having a handle made of braided plastic with a sharpened metal point. The point appeared to be a metal of some kind, possibly a paper clip. The metal point was approximately one half to one inch long, and the portion of the plastic handle which Hatch could see was approximately one and one half inches long for a total observable length of approximately two and one half inches. Lizarraga wrapped a piece of cloth around the plastic portion to obtain a better grip on the weapon. Hatch could not tell the total length of the weapon because he could not see how far the weapon extended into Lizarraga's hand.

It is clear that the weapon described by Hatch could be considered a deadly weapon in some circumstances. One could envision the weapon being used in a fight to stab someone in the neck, which could cause death or great bodily injury. Lizarraga's argument is more nuanced and has essentially two prongs. First, he argues that Hatch's description of the weapon was unreliable because he was able to observe the weapon for only a very short period of time. We reject this argument because it was up to the jury to determine if Hatch's description of the weapon was sufficient to describe a deadly weapon taking into consideration the short time frame in which he was able to observe it. We will not disturb the jury's conclusion since Hatch's testimony is sufficient to support this aspect of the verdict.

The second prong of Lizarraga's argument is that even if the weapon could be a deadly weapon in some instances, the circumstances of this case preclude such a finding. Lizarraga relies on the fact he attacked Hatch through a small opening in the cell door during which only Hatch's arm was exposed, and the weapon caused no injury. The opening was described as a rectangle measuring 4.5 inches by 13.5 inches. Lizarraga argues this limited space and the inability to see at what he was swinging rendered this weapon something less than a deadly weapon, i.e. a weapon incapable of causing death or great bodily injury.

We disagree. The fact Lizarraga did not cause any injury to Hatch was the result of Hatch's caution. He was concerned that Lizarraga would act out because he (Lizarraga) was upset, had pushed the cover to the opening in the door halfway closed, and had turned off the lights in the cell. Accordingly, Hatch insisted on personally delivering the food to Lizarraga and exercised great caution when he did so. When Lizarraga lashed out of the opening, Hatch quickly retreated to avoid injury.

However, the weapon was designed to cause injury, and had Hatch been less cautious, he might have suffered serious injury. Had Hatch put his face near the opening, the weapon could have severely injured an eye, ear, nose, or neck. The fact such injuries did not occur does not render the weapon harmless or less dangerous. Lizarraga also emphasizes the fact he swung his arm through the opening in the door, which, according to him, made it difficult or impossible to cause any injury. Therefore, the manner in which the weapon was used, according to Lizarraga, resulted in the weapon failing to meet the definition of a dangerous weapon. However, as already explained, Lizarraga swung a sharpened weapon in a manner that could have caused great bodily injury. It is only because of Hatch's caution no injury resulted from the attack.

Lizarraga places great reliance on the trial court's characterization of the weapon as "not particularly dangerous." However, our task is to determine if substantial evidence supports the jury's conclusion that the weapon was a dangerous or deadly weapon. The trial court's comments, made at the sentencing hearing, are not evidence, and hence not relevant to our analysis.

II. Sentencing Error

The Attorney General argued in her brief the matter must be remanded for resentencing because the trial court failed to impose or strike the prior prison term enhancement. (See, e.g., People v. Langston (2004) 33 Cal.4th 1237, 1241.) Lizarraga argues the prior prison term enhancement may not be imposed because the same conviction was used to impose a prior serious felony enhancement. (See, e.g., People v. Perez (2011) 195 Cal.App.4th 801, 805-806.) It appears, however, Lizarraga's argument is based on the events that occurred at the initial sentencing hearing.

We will remand the matter to the trial court to permit it to address the prior prison term enhancement which does not appear to have been addressed at the second sentencing hearing.


The verdicts are affirmed. The matter is remanded to the trial court to permit it to address the prior prison term enhancement it found true in this case.


* Before Gomes, Acting P.J., Poochigian, J. and Smith, J.
1. All statutory references are to the Penal Code.


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