In re B.M.

IN THE SUPREME COURT OF
CALIFORNIA
In re B.M., a Person Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
B.M.,
Defendant and Appellant.
S242153
Second Appellate District, Division Six
B277076
Ventura County Superior Court
2016025026
December 27, 2018
Justice Liu authored the opinion of the court, in which
Chief Justice Cantil-Sakauye and Justices Chin, Corrigan,
Cuéllar, Kruger and Renner* concurred.
Justice Chin filed a concurring opinion in which Justice
Corrigan concurred.
* Associate Justice of the Court of Appeal, Third Appellate
District, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.

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IN RE B.M.
S242153
Opinion of the Court by Liu, J.
Penal Code section 245, subdivision (a)(1) (hereafter section
245(a)(1)) prohibits “assault[ing] . . . the person of another with
a deadly weapon or instrument other than a firearm.” In this
case, the juvenile court found that defendant B.M.’s use of a
knife with a dull tip and slightly serrated edge, which the court
referred to as a “butter knife,” violated section 245(a)(1). On
appeal, B.M. argued that insufficient evidence supported the
juvenile court’s finding because she had not used the butter
knife in a manner that was “ ‘capable of producing and likely to
produce, death or great bodily injury.’ ” (People v. Aguilar (1997)
16 Cal.4th 1023, 1029 (Aguilar).) In rejecting B.M.’s claim, the
Court of Appeal expressly disagreed with In re Brandon T.
(2011) 191 Cal.App.4th 1491 (Brandon T.), which held that a
butter knife had not been used as a deadly weapon in part
because the knife had broken during the alleged assault and
failed to cause significant bodily injury prior to breaking. (Id. at
pp. 1497–1498.)
We hold, consistent with settled principles, that for an
object to qualify as a deadly weapon based on how it was used,
the defendant must have used the object in a manner not only
capable of producing but also likely to produce death or great
bodily injury. The extent of any damage done to the object and
the extent of any bodily injuries caused by the object are
appropriate considerations in the fact-specific inquiry required
by Penal Code section 245(a)(1). But speculation without record

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IN RE B.M.
Opinion of the Court by Liu, J.
2
support as to how the object could have been used or what injury
might have been inflicted if the object had been used differently
is not appropriate.. We conclude that the evidence here was
insufficient to sustain a finding that the knife at issue was used
as a deadly weapon, and we accordingly reverse the Court of
Appeal’s judgment.
I.
On the morning of July 2, 2016, seventeen-year-old
defendant B.M. returned to her family’s home after spending the
night away. She was unable to unlock the front door with her
key, so she began knocking on the door. When she received no
response, she entered the house through a window.
Upon entering the home, B.M. went to the bedroom of
Sophia, one of her sisters, and asked her why she had changed
the locks. B.M. later acknowledged she was “mad” and “upset”
when she confronted Sophia. B.M. yelled and threw a phone at
Sophia and then went downstairs to the kitchen, where she
grabbed a metal knife from the counter. B.M. testified she
grabbed the knife because “it was just the heat of the moment,
and [the knife was] just the first thing that caught [her] eye.”
The knife was about six inches long, with a three-inch blade that
was not “sharp” and had “small ridges” on one side. Both B.M.
and Sophia described the knife as a “butter knife.”
B.M. returned to Sophia’s bedroom with the knife. Sophia
was clothed only in a towel because she had just gotten out of
the shower when B.M. had arrived home. Sophia testified that
when she saw B.M. with the knife, she covered herself with the
blanket that was on the bed because she “didn’t know what
[B.M.] was going to do.” She also testified that she “was pretty
scared” because she thought B.M. “could really . . . hurt [her].”

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IN RE B.M.
Opinion of the Court by Liu, J.
3
On the witness stand, B.M. was asked, “So did you use a motion
like to stab her?” B.M. responded, “No, but as soon as I got close
to her with the knife, she covered herself with the blanket.”
B.M. approached Sophia, who was lying on top of the bed
with her knees bent. Sophia testified that B.M. “came . . . at
[her] trying to stab [her]” and that from a distance of about three
feet, B.M. made several “downward” “slicing” motions with the
knife in the area around Sophia’s legs. Sophia further testified
that the knife hit her blanketed legs “a few” times and that the
amount of pressure B.M. used was “maybe like a five or a six”
on a scale from one to ten “if one is the least amount of pressure
and ten is the most pressure.” Sophia initially said B.M. poked
her with the knife, but she later clarified that B.M. did not poke
or stab her and that B.M. did not “hurt” her. B.M. testified she
only “wanted to scare [Sophia]” and “had no intentions in
actually stabbing [Sophia] with [the knife].”
B.M. then began arguing with her stepsister, who was also
in the room. The argument eventually turned physical, and the
fight moved from the bedroom to the downstairs of the house
before spilling outside. During this altercation, Sophia called
the police, who showed up and arrested B.M. A police officer
later testified that B.M. told him “she [had] wanted to scare
Sophia and admitted to making several [downward] stabbing
motions at the bedding . . . that Sophia had pulled up over her
and the bed.” A juvenile wardship petition was filed pursuant
to Welfare and Institutions Code section 602, alleging that
B.M.’s use of the butter knife against Sophia was an assault
with a deadly weapon under Penal Code section 245(a)(1). (All
undesignated statutory references are to the Penal Code.) The
juvenile court sustained the petition. In concluding that B.M.
had violated section 245(a)(1), the court noted that Sophia had

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IN RE B.M.
Opinion of the Court by Liu, J.
4
testified that she “did feel the [downward] slicing motion on her
legs” applied with a pressure of “a five or a six out of ten.” The
court also observed that even though the case involved “ ‘just a
butter knife,’ . . . the circumstances of what happened
here . . . make it a felony.”
B.M. appealed the juvenile court’s order. As relevant here,
the Court of Appeal rejected B.M.’s challenge to the sufficiency
of the evidence supporting her adjudication under section
245(a)(1). The court reasoned that “[i]t matters not that
[Sophia] was able to fend off great bodily injury with her
blanket” or “that [B.M.] was not adept at using a knife” because
B.M. “could have easily inflicted great bodily injury with this
metal butter knife and just as easily [could] have committed
mayhem upon the victim’s face.” The court concluded that the
juvenile court’s findings — “that the six-inch metal butter knife
could be used to slice or stab, even though it was not designed
for such,” and that the knife was in fact “used in a manner
‘capable’ of producing great bodily injury” — were “not ‘wholly
irreconcilable’ with the evidence.”
The court also said Brandon T., supra, 191 Cal.App.4th
1491, was “ ‘wrongly decided.’ ” In that case, a juvenile “tried to
cut [the victim’s] cheek and throat” with a knife that was “about
three and a quarter inches long, with a rounded end and slight
serrations on one side.” (Brandon T., at pp. 1496–1497.) While
wielding the knife, the juvenile “moved his arm up and down,
applying a slashing motion” that resulted in “ ‘welts’ ” and “ ‘a
small scratch’ ” but did not draw blood. (Id. at p. 1497.) “The
pressure that Brandon applied was not enough to cause death
or great bodily injury to [the victim]. Yet it was too much
pressure for the knife to bear, and the handle broke off.” (Ibid.)
The court in Brandon T. reversed the juvenile’s adjudication

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IN RE B.M.
Opinion of the Court by Liu, J.
5
under section 245(a)(1), reasoning that “[t]he butter
knife . . . had a rounded end, not a pointed one. Brandon applied
force, but the knife did not penetrate through the layers of [the
victim’s] skin; sufficient force was used, however, to cause the
butter knife to break during use. Although [the victim]
perceived that Brandon was trying repeatedly to cut him, the
knife failed and was not capable of use as obviously intended.”
(Brandon T., at pp. 1497–1498.) The Court of Appeal here said
that Brandon T. “gives undue emphasis to the lack of injuries”
and that the fact that the knife “broke during the assault
preventing further stabbing should not inure to the defendant’s
benefit.”
We granted review.
II.
“As used in section 245, subdivision (a)(1), a ‘deadly
weapon’ 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.’ ”” (Aguilar, supra, 16
Cal.4th at pp. 1028–1029.) Although “[s]ome few objects, such
as dirks and blackjacks, have been held to be deadly weapons as
a matter of law” (id. at p. 1029), we have said a knife is not such
an object (People v. McCoy (1944) 25 Cal.2d 177, 188), and the
Attorney General does not argue to the contrary here. “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.” (Aguilar, at p. 1029.) Our inquiry
is limited to whether substantial evidence supports the juvenile

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IN RE B.M.
Opinion of the Court by Liu, J.
6
court’s finding that B.M. used the butter knife as a deadly
weapon. (In re Manuel G. (1997) 16 Cal.4th 805, 822–825.)
A.
At the outset, we clarify several principles that guide our
analysis. First, the object alleged to be a deadly weapon must
be used in a manner that is not only “capable of producing” but
also “ ‘likely to produce death or great bodily injury.’ ” (Aguilar,
supra, 16 Cal.4th at p. 1029, italics added.) Although the Court
of Appeal in this case recited the Aguilar standard, its analysis
addressed only whether B.M.’s manner of using the butter knife
was capable of causing great bodily injury, not whether it was
likely to do so. And the court misstated the standard by omitting
the “likely” requirement when it said “an assault with a deadly
weapon is complete when the defendant, with the requisite
intent, uses an object in a manner which is capable of producing
great bodily injury upon the victim.”
The Attorney General argues that “capable of producing”
and “likely to produce” are essentially the same because the
term “ ‘likel[y]’ ” has the same meaning as “ ‘possib[le].’ ” But
this construction is at odds with the ordinary meaning of
“likely.” (See Merriam-Webster Collegiate Dict. (11th ed. 2014)
p. 721 [defining “likely” as “having a high probability of
occurring or being true” and “very probable”]; Black’s Law Dict.
(10th ed. 2014) p. 1069 [defining “likely” as “probable”].) It is
also inconsistent with how we have treated the term “likely to
produce great bodily harm or death” elsewhere in the Penal
Code. (See People v. Valdez (2002) 27 Cal.4th 778, 784 [the term
“ ‘likely to produce great bodily harm or death,’ ” as used in the
felony child abuse statute, § 273a, refers to situations in which

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IN RE B.M.
Opinion of the Court by Liu, J.
7
“ ‘ “the probability of serious injury is great” ’ ”]; People v.
Sargent (1999) 19 Cal.4th 1206, 1223 [same].)
Our case law on the crime of assault is also instructive.
Assault is a general intent crime; it does not require a specific
intent to cause injury. (See People v. Williams (2001) 26 Cal.4th
779, 782; People v. Rocha (1971) 3 Cal.3d 893, 898–899.) The
requisite mental state is “actual knowledge of the facts sufficient
to establish that the defendant’s act by its nature will probably
and directly result in injury to another.” (Williams at p. 782;
accord, Rocha, at p. 899.)
The Attorney General further contends that the Court of
Appeal sufficiently addressed the “likely” standard by noting
that “ ‘[t]he use of an object in an assault increases the likelihood
of great bodily injury.’ ” But the fact that B.M.’s use of the butter
knife may have increased the likelihood of serious injury does
not establish that her use of the object was likely to cause serious
injury. An increase in likelihood from impossible to unlikely, for
example, does not show that the object was likely to cause
serious harm. The use of an object in a manner “likely to
produce” death or great bodily injury (Aguilar, supra, 16 Cal.4th
at p. 1029) requires more than a mere possibility that serious
injury could have resulted from the way the object was used.
Second, the Aguilar standard does not permit conjecture
as to how the object could have been used. Rather, the
determination of whether an object is a deadly weapon under
section 245(a)(1) must rest on evidence of how the defendant
actually “used” the object. ( . (Aguilar, supra, 16 Cal.4th at
p. 1029; see People v. Beasley (2003) 105 Cal.App.4th 1078, 1087
(Beasley) [finding it “certainly conceivable” that a broomstick
“might be wielded in a manner capable of producing, and likely

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IN RE B.M.
Opinion of the Court by Liu, J.
8
to produce, great bodily injury,” but declining to make such a
finding because the record did not indicate “the degree of
force Beasley used in hitting [the victim] with the stick”].)
People v. Duke (1985) 174 Cal.App.3d 296 (Duke) is
instructive. T instructive. The defendant “use[d] . . . a headlock to hold his
victim while he touched her breast.” (Id. at p. 302.) The victim
said “[t]he headlock made her feel ‘choked’ but did not cut off her
breathing.” (Ibid.) Although “[s]he felt that his hold on her was
‘firm,’ [she] did not say that he tightened his grip.” (Ibid.) The
court found insufficient evidence to sustain a conviction for
assault with force likely to cause great bodily injury,
emphasizing that the inquiry focuses on “the force actually
used,” not “the force that . . . could have [been] used.” (Id. at
p. 303.) “[T]he fact that appellant could have easily broken [the
victim’s] neck or could have choked her to the point of cutting off
her breathing by exerting greater pressure on her neck or
windpipe will not support the conviction of felony assault. This
would involve gross speculation on the part of the jury as to what
the appellant would have done if he had not stopped of his own
accord or had been stopped by outside forces.” (Ibid.)
Duke involved assault with force likely to cause great
bodily injury (§ 245, subd. (a)(4)) rather than assault with a
deadly weapon. But we noted in Aguilar that “except in those
cases involving an inherently dangerous weapon[,] the jury’s
decisionmaking process in an aggravated assault case . . . is
functionally identical regardless of whether . . . the defendant
employed a weapon alleged to be deadly as used or employed
force likely to produce great bodily injury; in either instance, the
decision turns on the nature of the force used.” (Aguilar, supra,
16 Cal.4th at p. 1035; see ibid. [“ ‘[A]ll aggravated assaults are

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IN RE B.M.
Opinion of the Court by Liu, J.
9
ultimately determined based on the force likely to be applied
against a person.’ ”].) Duke’s reasoning is thus applicable here.
Although it is inappropriate to consider how the object
could have been used as opposed to how it was actually used, it
is appropriate in the deadly weapon inquiry to consider what
harm could have resulted from the way the object was actually
used. Analysis of whether the defendant’s manner of using the
object was likely to produce death or great bodily injury
necessarily calls for an assessment of potential harm in light of
the evidence. As noted, a mere possibility of serious injury is
not enough. But the evidence may show that serious injury was
likely, even if it did not come to pass.
Here, the Court of Appeal said B.M. could “easily have
committed mayhem upon the victim’s face.” But the evidence
showed that B.M. used the butter knife only in the area of
Sophia’s legs, which were covered with a blanket. There is no
evidence that B.M. stabbed, sliced, or pointed the butter knife
toward or near Sophia’s face, or that B.M. attempted or
threatened to do so. Nor is there evidence that B.M. was flailing
her hand with the butter knife or otherwise wielding it wildly or
uncontrollably. (Cf. People v. Simons (1996) 42 Cal.App.4th
1100, 1106 (Simons).) The Court of Appeal’s remark about
injury to the victim’s face is an impermissible conjecture as to
how B.M. could have used the butter knife. It is not a reasonable
inference of potential injury based on evidence of how B.M.
actually used the butter knife.
Third, although it is appropriate to consider the injury
that could have resulted from the way the object was used, the
extent of actual injury or lack of injury is also relevant. “[A]
conviction for assault with a deadly weapon does not require

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IN RE B.M.
Opinion of the Court by Liu, J.
10
proof of an injury or even physical contact” (Brandon T., supra,
191 Cal.App.4th at p. 1497), but limited injury or lack of injury
may suggest that the nature of the object or the way it was used
was not capable of producing or likely to produce death or
serious harm. In Beasley, the court explained that “bruises on
[the victim’s] shoulders and arms are insufficient to show that
Beasley used the broomstick as a deadly weapon.” ( Beasley used the broomstick as a deadly weapon.” (Beasley,
supra, 105 Cal.App.4th at p. 1088.) And in Brandon T., the
court found insufficient evidence that a butter knife was used as
a deadly weapon where “the knife would not cut” and instead
“resulted in a small scratch on [the victim’s] cheek.” (Brandon
T., at p. 1497.) The fact that applying only enough pressure to
inflict a small scratch caused the knife to break indicated that
the object, by its nature, was neither capable of producing nor
likely to produce serious injury. (Ibid.) Contrary to what the
Court of Appeal here said, Brandon T. properly considered the
knife’s inability to cause more than a small scratch in evaluating
whether the deadly weapon finding was supported by
substantial evidence. (See In re D.T. (2015) 237 Cal.App.4th,
693, 701 (D.T.) [“the knife [in Brandon T.] could not have
produced a stabbing injury because it broke when the minor
pressed it against the victim”].)
B.
With these principles in mind, we turn to the case before
us. V us. Viewing the facts in the light most favorable to the
judgment, we conclude that the juvenile court’s finding that
B.M. used the butter knife as a deadly weapon is not supported
by substantial evidence, i.e., “ ‘evidence which is reasonable,
credible, and of solid value.’ ” (In re I.C. (2018) 4 Cal.5th 869,
892.) Under any plausible interpretation of the term “likely,”
the evidence was insufficient to establish that B.M.’s use of a

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IN RE B.M.
Opinion of the Court by Liu, J.
11
butter knife against her sister’s blanketed legs was “ ‘likely to
produce death or great bodily injury.’ ” (Aguilar, supra, 16
Cal.4th at p. 1029.)
Several circumstances support this conclusion. First, the
record indicates that the six-inch metal knife B.M. used was
“[t]he type of knife that you would use to butter a piece of toast”;
it was not sharp and had slight ridges on one edge of the blade.
(See Brandon T., supra, 191 Cal.App.4th at pp. 1496–1498
[butter knife with “rounded end” was incapable of causing
serious injury even when applied to the victim’s face with
enough force to break the knife]; D.T., supra, 237 Cal.App.4th
at p. 701 [contrasting the butter knife in Brandon T. with a
sharp pocketknife].)
Second, B.M. used the knife only on Sophia’s legs, which
were covered with a blanket. There is no evidence that B.M.
used or attempted to use the knife in the area of Sophia’s head,
face, or neck, or on any exposed part of her body. (See Beasley,
supra, 105 Cal.App.4th at p. 1087 [finding insufficient evidence
that a broomstick was used as a deadly weapon where the
defendant caused bruises on the victim’s arms and shoulders but
“did not strike [the] head or face”].)
Third, the moderate pressure that B.M. applied with the
knife was insufficient to pierce the blanket, much less cause
serious bodily injury to Sophia. (See Brandon T., supra, 191
Cal.App.4th at pp. 1496–1497; People v. Brown (2012) 210
Cal.App.4th 1, 7 [“[I]f injuries do result, the nature of such
injuries and their location are relevant facts for consideration in
determining whether an object was used in a manner capable of
producing and likely to produce great bodily injury.”].)

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IN RE B.M.
Opinion of the Court by Liu, J.
12
The Court of Appeal, while acknowledging that “[t]he
extent of the injuries, or lack of them, is relevant,” suggested
that Sophia was not injured in part because B.M. “was not adept
at using a knife.” This circumstance “does not inure to [B.M.’s]
benefit,” the court reasoned, just as lack of injury is not
probative in “the typical assault with a deadly weapon with a
firearm when the defendant has poor aim.” But the record
contains no evidence as to how adept B.M. was in using a knife,
and in any event, it does not matter what injury B.M. could have
inflicted if she had used the knife in a more adept manner. (See
ante, at pp. 8–9.) Such conjecture strays from the focus on the
manner in which a defendant actually used the object, whether
adept or not. Where a defendant uses a firearm with poor aim,
lack of injury carries little weight not because it is appropriate
to consider what injury could have resulted if the defendant had
had better aim, but because in many circumstances using a
firearm even with poor aim is likely to produce death or serious
injury. (See, e.g., People v. Bradford (1976) 17 Cal.3d 8, 20 [the
defendant “fired five shots at [a police officer] while [the officer]
was pinned under a car”]; People v. Peau (2015) 236 Cal.App.4th
823, 828 [evidence could not exclude the possibility that the
victim was hit by bullets ricocheting from the pavement];
Gilmore v. Superior Court (1991) 230 Cal.App.3d 416, 419
[victim was killed “when the bullet ricocheted off the asphalt
surface”].)
The Attorney General reprises the Court of Appeal’s
reasoning that Sophia could have been seriously injured had she
not defended herself with the blanket. But there is no evidence
indicating that Sophia pulled the blanket over her legs after or
in reaction to seeing B.M. begin a slicing or stabbing motion
directed at Sophia’s exposed legs. Sophia testified that B.M.

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IN RE B.M.
Opinion of the Court by Liu, J.
13
“came . . . at [her] trying to stab [her]” only “after [she] covered
[herself].” Further, as noted, nothing in the record suggests that
B.M., who was aware that Sophia’s legs were covered and that
the knife was not penetrating the blanket, then used or tried to
use the knife on an exposed part of Sophia’s body. To be sure,
an aggressor should not receive the benefit of a potential victim
fortuitously taking a defensive measure or being removed from
harm’s way once an assault is already underway. But the facts
known to the aggressor before the assault, including defensive
measures taken by the victim, are relevant to determining
whether the aggressor used an object in a manner likely to cause
serious injury.
The juvenile court said it was “lucky” there were no
injuries. Even so, there is no evidence that B.M. attacked any
other part of Sophia’s body despite the opportunity to do so. Nor
is there any evidence that B.M. initially tried to stab some other
part of Sophia’s body but missed and instead hit Sophia’s
blanket-covered legs. It may be that B.M. could have caused
serious injury if she had applied greater force, if she had applied
the same force to Sophia’s exposed legs, if she had used the knife
on Sophia’s head, face, or neck, or if she had wielded the knife
in an uncontrolled or unpredictable manner. But the inquiry
must focus on the evidence of how B.M. actually used the knife,
not on various conjectures as to how she could have used it.
The Attorney General also echoes the Court of Appeal’s
reasoning that B.M. was willing to go to great lengths to injure
Sophia because B.M. grabbed the knife only after she was
unable to harm Sophia by “hurling” a phone at her and pulling
her hair. But the record contains no facts regarding the phone
itself or the manner in which B.M. threw the phone, and there
is no allegation that B.M. used the phone in a manner likely to

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IN RE B.M.
Opinion of the Court by Liu, J.
14
cause serious injury. Moreover, contrary to the timeline
suggested by the Court of Appeal, the record indicates that B.M.
pulled Sophia’s hair during Sophia’s phone call to 911, which
occurred after B.M. used the knife against her. The inference
that B.M. was intent on seriously injuring Sophia is belied by
the absence of any evidence that B.M. attempted to use the knife
again after using it on Sophia’s blanket-covered legs. It is true
that Sophia said she was “scared” that B.M. “could really hurt
[her]” when B.M. showed up in her room with the knife. But
Sophia’s perception, considered with the totality of the evidence
as to how B.M. actually used the knife, does not amount to
reasonable evidence of solid value that B.M. used the knife in a
manner likely to produce great bodily injury.
The Attorney General further notes that “an object can be
a deadly weapon even if there is no contact or injury, and ‘ “even
if it’s not actually used with deadly force.” ’ ” But the cases he
relies on involved a sharp object applied to a vulnerable part of
the body (D.T., supra, 237 Cal.App.4th at pp. 697, 696 [“ ‘sharp’
and ‘pointy’ ” pocketknife used to “poke[]” someone “multiple
times in the upper back” is a deadly weapon]; see id. at pp. 699–
701; People v. Page (2004) 123 Cal.App.4th 1466, 1469
[“ ‘sharp[,] pointy’ ” pencil held up to someone’s neck]) or a sharp
object wielded in a wild or uncontrolled manner (Simons, supra,
42 Cal.App.4th at p. 1106 [the defendant, being chased by police
officers, “ ‘flail[ed] his hands . . . [and] would bring [a]
screwdriver forward’ ” when approached]). Here, the knife was
not sharp or pointy; it was not applied to any vulnerable part of
Sophia’s body; and there is no evidence that B.M. wielded the
knife wildly or uncontrollably.
Viewing the totality of the evidence in the light most
favorable to the judgment, we find it questionable whether a

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IN RE B.M.
Opinion of the Court by Liu, J.
15
trier of fact could reasonably conclude that the manner in which
B.M. used the knife was capable of causing great bodily injury.
But even if B.M.’s use of the knife were capable of causing great
bodily injury, there is no substantial evidence that it was likely
to do so.
CONCLUSION
The judgment of the Court of Appeal is reversed.
LIU, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
CUÉLLAR, J.
KRUGER, J.
RENNER, J.*
* Associate Justice of the Court of Appeal, Third Appellate
District, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.

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IN RE B.M.
S242153
Concurring Opinion by Justice Chin
I concur in the majority opinion, which I have signed. I do
so with the understanding that we are not deciding the meaning
of the word “likely” in the phrase “ ‘capable of producing and
likely to produce, death or great bodily injury.’ ” ( ” (People v.
Aguilar (1997) 16 Cal.4th 1023, 1029, italics added (Aguilar).)
The latter phrase was adopted by this court to define what
constitutes a “deadly weapon” for purposes of Penal Code section
245, subdivision (a)(1). As I read the majority opinion, we reach
no conclusion about the meaning of the word “likely” in the
Aguilar standard, other than to say that it means something
“more than a mere possibility.” (Maj. opn., ante, at p. 7; see id.
at p. 9.)
The majority opinion cites several definitions of the word
“likely” according to which the word means “ ‘having a high
probability,’ ” “ ‘very probable,’ ” or a “ ‘probability [that is]
great.’ ” (Maj. opn., ante, at pp. 6–7.) The opinion cites those
definitions as examples that disprove the Attorney General’s
assertion that “likely” means “possible.” ( tion that “likely” means “possible.” (Id. at p. 6.) The
majority opinion should not be read as holding, based on those
examples, that for purposes of Aguilar’s definition of what
constitutes a deadly weapon, “likely” means “probable.” Indeed,
such a holding would be inconsistent with the majority’s
citations to In re D.T. (2015) 237 Cal.App.4th 693, People v. Page
(2004) 123 Cal.App.4th 1466, and People v. Simons (1996) 42
Cal.App.4th 1100. (See maj. opn., ante, at p. 14.) Those cases

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IN RE B.M.
Chin, J., concurring
2
all involved the use of a sharp object in a threatening manner,
and in all three cases an argument could be made that great
bodily injury was not probable, but the deadly weapon finding
was nonetheless upheld. (See also In re Jose R. (1982) 137
Cal.App.3d 269 [upholding a conclusion that a pin inserted in an
apple was a deadly weapon, despite the fact that great bodily
injury was arguably not probable].)
In this case, we do not decide the question of what “likely”
means in the context of the Aguilar standard, and I do not wish
to prejudge that question, but our resolution of the question calls
for a careful analysis like the one that appears in People v.
Superior Court (Ghilotti) (2002) 27 Cal.4th 888, a decision
involving the meaning of the word “likely” in the Sexually
Violent Predators Act (Welf. & Inst. Code, § 6600 et seq.), which
refers to persons “likely to engage in acts of sexual violence” (id.,
§ 6601, subd. (d)). That opinion shows that, in the context of a
law designed to prevent a harm, “likely” can sometimes mean
something less than “probable.”
Turning to the facts of this case and mindful that we must
construe the evidence in favor of the trial court’s judgment, I
agree with the majority that “[u]nder any plausible
interpretation of the term ‘likely,’ the evidence was insufficient
to establish that [defendant] B.M.’s use of a butter knife against
her sister’s blanketed legs was ‘ “likely to produce death or great
bodily injury.” ’ (Aguilar, supra, 16 Cal.4th at p. 1029.)” (Maj.
opn., ante, at pp. 10-11.) Significantly, the evidence at trial in
this case included close questioning of the victim, Sophia M.,
concerning how her sister used the butter knife against her.
Sophia could not recall which way her sister held the knife, and
refused, even when pressed by the prosecution and the court, to
testify that her sister held the knife as one would a dirk or a

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IN RE B.M.
Chin, J., concurring
3
dagger. Instead, Sophia described her sister making a “few”
slicing motions on Sophia’s blanketed legs, doing so with enough
force that Sophia could feel it “a little.” Using a butter knife —
even one with small ridges on the blade — to make a few slicing
motions across the blanket-covered legs of a healthy person is
not, under any definition of the word “likely,” an act that is likely
to produce great bodily injury.
Based on the foregoing understanding of the majority
opinion, I concur.
CHIN, J.
I Concur:
CORRIGAN, J.

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion In re B.M.
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 10 Cal.App.5th 1292
Rehearing Granted
__________________________________________________________________________________
Opinion No. S242153
Date Filed: December 27, 2018
__________________________________________________________________________________
Court: Superior
County: Ventura
Judge: Brian John Back
__________________________________________________________________________________
Counsel:
Elizabeth K. Horowitz, under appointment by the Supreme Court, and Donna Ford, under appointment by
the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters,
Assistant Attorney General, Susan Sullivan Pithey, Michael J. Wise, Michael C. Keller and Steven E.
Mercer, Deputy Attorneys General, for Plaintiff and Respondent.

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Counsel who argued in Supreme Court (not intended for publication with opinion):
Elizabeth K. Horowitz
Law Office of Elizabeth K. Horowitz
5272 South Lewis Avenue, Suite 256
Tulsa, OK 74105
(424) 543-4710
Steven E. Mercer
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 269-6126

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