No. F072111.

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 a 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 agree.


The information charged Lizarraga with assault on a peace officer with a deadly weapon (Pen. Code, § 245, subd. (c)),1 assault with a deadly weapon (§ 245, subd. (a)(1)), possession of a weapon while in a penal institution (§ 4502, subd. (a)), and interference with a peace officer during the performance of his or her duties (§ 69). The following enhancements were alleged: (1) Lizarraga had suffered two prior convictions which constituted strikes within the meaning of section 667, subdivisions (b)-(i) (all counts), (2) Lizarraga had suffered two prior convictions for a serious felony within the meaning of section 667, subdivision (a) (counts 1 and 2), and (3) Lizarraga had served a prior prison term within the meaning of section 667.5, subdivision (b) (all counts).

Prior to trial, the trial court granted the prosecutor's motion to dismiss one of the prior strike allegations, and one of the prior serious felony convictions. The assault with a deadly weapon count was dismissed after the presentation of evidence.

The charges arose out of a single incident at the Kern County detention facility. On October 29, 2013, Lizarraga was to be transported to court. Kern County Detentions Deputies Michael Robles and Steven Harris were assigned to transport him from his cell to the staging area for transportation to the courthouse. When Robles initially approached his cell, Lizarraga refused to go to court. He then apparently changed his mind, and Robles returned to the cell and placed handcuffs on him through the opening in the cell door. As the cell door opened, Lizarraga retrieved something from underneath his mattress, then quickly approached Robles while making a slashing motion with his hands. Robles tried to back away, but ran into a table in the day room, and fell face first onto the table top. Lizarraga approached and struck Robles on the right side of his head with the item in his hand. The item in Lizarraga's hand broke when he struck Robles. Robles was able to push Lizarraga away, and deploy his stun gun. The prongs from the stun gun did not stick to Lizarraga, but he fell to the ground.

When Robles searched the area where Lizarraga struck him, he found three pieces of a broken pencil with no lead in it.

Harris similarly testified that on October 29, 2013, he was working as a search and escort officer and assisting Robles in escorting Lizarraga to court. Lizarraga initially refused to go to court. Robles and Harris returned to Lizarraga's cell when he changed his mind about going to court. They ordered him to place his hands in the food slot which allowed them to place handcuffs on him. The cell door was then opened. The officers intended to place Lizarraga, as they did all other inmates going to court, in leg restraints and waist chains. As the door was opening, Lizarraga grabbed an object off of his bunk, squeezed through the door before it was fully opened, and approached the two officers while making a striking motion with a pencil in his hand. From Harris's description, it appears Lizarraga was using an overhand striking motion. The two deputies backed up into the day room, at which time Robles apparently tripped and fell on top of one of the tables. Lizarraga ran to Robles and struck him in the head with the pencil.

Robles pushed Lizarraga back, stood up, and shot his stun gun at him. The probes from the stun gun did not attach to Lizarraga. Nonetheless, he fell down to the ground. He was then restrained with the assistance of other officers who responded to the scene. Robles had a mark on his ear from where the pencil struck him.

Broken pieces of a modified pencil were found on the floor near the table onto which Robles had fallen. The pencil was of the type given to the inmates by staff at the jail, described by Harris as golf pencils. When recovered, the pencil had no lead in it.

Lizarraga testified in his defense. He admitted he initially did not want to go to court because he was feeling "a little paranoid at first." However, after speaking with a detentions supervisor and being assured he would be safe, he agreed to be transported to court. He put his hands through the food opening and handcuffs were placed on his wrists. When the door began to open, he grabbed the pencil that was on his bunk to put into his pocket and take to court. Apparently Robles saw him pick up the pencil, and one of them "got hysterical and he just started — I just heard a bunch of yelling. So it just puzzled me." When Lizarraga exited his cell, Harris and Robles reached for their weapons, even though he wasn't combative. He turned to return to his cell and Robles shot Lizarraga with his stun gun. Lizarraga admitted he struck Robles, but he did not mean to strike him with the pencil, and did so only to defend himself. He admitted he probably had his pencil in his hand when he struck Robles. Lizarraga then backed up, and Harris shot him with his stun gun in his leg. Lizarraga denied swinging the pencil at Robles or Harris when he emerged from his cell and denied striking Robles at any time before Robles shot his stun gun.

Lizarraga did not consider himself a threat, and testified that if asked to do so he would have put the pencil back on the bed. He did not intend to use the pencil as a weapon. The pencil was about three inches long and had lead in it. It was sharpened to a point so it could be used to write.

The prosecution recalled Robles to confirm his prior testimony.

The jury found Lizarraga guilty as charged. In a bifurcated proceeding, Lizarraga waived his right to have the jury determine whether the prior conviction allegations were true. The trial court found the allegations true based on the documentary evidence submitted by the People.

The trial court sentenced Lizarraga to a term of two years and eight months (one-third the midterm) on the assault charge, which was imposed consecutive to the term imposed in a prior case. The sentences on the remaining counts were imposed and stayed pursuant to section 654.


Lizarraga argues the evidence is insufficient to support the conviction for assault with a deadly weapon on a peace officer. Specifically, he claims the evidence did not establish that the pencil he used to attack Robles was a deadly weapon.

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.)

A pencil is not per se a deadly weapon. It is intended to be used as a writing instrument. The issue is whether it may be used in a manner likely to produce death or great bodily injury. Robles and Harris provided the testimony which supports the judgment. Each testified that when the cell door opened, Lizarraga exited the cell swinging his arms in a slashing motion with the pencil in his hands. He approached the two detention officers in a manner which suggested to them he was initiating an attack. When the officers backed up, Lizarraga continued to approach them. This testimony establishes Lizarraga assaulted the officers with the pencil, but does not resolve the question of whether the weapon was a deadly weapon.

We are not the first court to consider the issue of whether a pencil can be considered a deadly weapon. In People v. Page (2004) 123 Cal.App.4th 1466 (Page), the defendant was convicted of assault with a deadly weapon. The victim was first robbed of his possessions by defendant and an accomplice. The accomplice then held a sharp, pointy object to the side of the victim's neck and warned the victim to not report the incident to the police. (Id. at p. 1469.) Defendant argued the object, which was a pencil, was not a deadly weapon within the meaning of section 245.

The appellate court first noted that if the circumstances of the case establish an object is capable of being used in a dangerous or deadly manner, it is reasonable to infer the defendant intended to use the object as a deadly weapon. (Page, at p. 1471, citing People v. Graham (1969) 71 Cal.2d 303, 328.)2 After reviewing several cases involving various objects determined to be deadly weapons under the circumstances of those cases, the appellate court stated "the pencil here was capable of being used as a deadly weapon, particularly if thrust into the neck, as [the accomplice] was in position to do," and that an object could be a deadly weapon even if not used with deadly force. (Page, at p. 1472.) The appellate court concluded "Here, [the accomplice] used the pencil as a deadly weapon. Certainly she was not threatening to write a note with it! She was not threatening that, if the victim involved the police, she would break his pencil; she was threatening to stab him with it. She viewed it, at that moment, as an instrument of great bodily injury or death. If instead she had pointed a loaded gun at the victim, it would still have been a deadly weapon, even if she threatened to harm him with it only in the future. Thus, there was ample evidence that the pencil was a deadly weapon. Indeed, on these facts, it was a deadly weapon as a matter of law." (Id. at p. 1473.)

Lizarraga argues that in this case the pencil was not a deadly weapon based, in part, on a description of the pencil. Appellate counsel describes the pencil as a "leadless, three-inch pencil, without a sharp point" that was incapable of producing nor was likely to produce great bodily injury. She admits an "object like a sharpened pencil ... can inflict a puncture wound which, depending on access to the victim and the part of the body injured, can be serious."

Appellate counsel's reliance on this description is misplaced as it ignores Lizarraga's testimony. While he described the pencil as about three inches long, he testified the pencil had lead and was sharpened to a point. The jury could have accepted his description of the pencil, since neither Robles nor Harris could describe the pencil during the time Lizarraga was attacking them. It was only after Lizarraga had been subdued that the remnants of the pencil were located.

Appellate counsel also notes Robles received only a superficial injury, and attempts to distinguish Page by asserting the pencil in Page was a full sized pencil with a sharp point that was held to the victim's neck. Appellate counsel asserts the leadless three-inch pencil Lizarraga used could only inflict a minor injury. We agree with appellate counsel that under the circumstances of this case the pencil was not a deadly weapon, even while rejecting her description of the pencil.

Lizarraga was not in a position to hold the pencil to Robles's neck as the defendant did in Page. Instead, Lizarraga was handcuffed in a jail. He was seen slashing at the officers with the object in his hands, but such a motion seems unlikely to be able to inflict a serious injury since the pencil was no more than three inches long, and Lizarraga had to use both hands in concert since he was handcuffed. In order to use the pencil as a weapon, Lizarraga must have held almost the entire length of the pencil in his hand. Were he able to strike one of the guards, any injury inflicted was as likely to be caused by his fists or the handcuffs as by the pencil. While this pencil might be considered a weapon, it was not a deadly weapon as it could not be used to inflict death or great bodily injury in the manner in which it was used.

Our conclusion is supported by the insignificance of Robles's injury, a scratch on his head. Considering the minimal length of the pencil and the manner in which Lizarraga used it, this injury is consistent with a weapon that is not a deadly weapon.

Since we conclude the pencil in this case is not a deadly weapon, the assault with a deadly weapon count is not supported by substantial evidence.


Lizarraga concedes in his brief that he committed an assault and therefore urges us to reduce his sentence to simple assault on a peace officer, a violation of section 241, subdivision (c) which is a lesser included offense to assault with a deadly weapon. Pursuant to the authority provided by section 1260, we agree this is the proper remedy and modify the verdict to reflect a conviction of violation of section 241, subdivision (c). (People v. Navarro (2007) 40 Cal.4th 668, 677-680.) We remand the matter to the trial court to impose sentence on this offense.


* Before Gomes, Acting P.J., Poochigian, J. and Smith, J.
1. All statutory references are to the Penal Code.
2. Graham was disapproved on other grounds in People v. Ray (1975) 14 Cal.3d 20, 29-30.


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