California v. KobackAnnotate this Case
Defendant Brian Koback walked into a rental car company office and stole a set of car keys. Defendant would ultimately be charged with and convicted of robbery, assault with a deadly weapon, and resisting arrest. Defendant admitted he had suffered a strike conviction, and the trial court sentenced him to state prison for 14 years four months. On appeal, defendant argued: (1) his conviction for assault with a deadly weapon was not supported by substantial evidence because there was no evidence he used the car keys in a manner that was capable of inflicting and likely to cause great bodily injury; (2) the trial court abused its discretion by imposing consecutive sentences on the robbery and resisting arrest counts, under the mistaken belief that it could only impose concurrent sentences if it struck defendant’s strike prior; (3) the minutes of sentencing and abstract of judgment did not accurately reflect the oral pronouncement of sentence with respect to restitution and parole revocation fines; and (4) the minutes of sentencing contained a clerical error, in that they reflected that defendant admitted two strike priors instead of one. In the published portion of its opinion, the Court of Appeal concluded defendant’s conviction for assault with a deadly weapon was supported by substantial evidence: "a car key is not an inherently deadly or dangerous weapon, but if wielded as a makeshift weapon with sufficient force at close range, as defendant did here, a key is capable of puncturing skin and causing serious bodily injury." In the unpublished portion of this opinion, the Court concluded the trial court erred when it concluded the only way it could impose concurrent sentences on defendant’s robbery and resisting arrest convictions was if it first struck defendant’s admitted strike prior. The Court therefore reversed the sentence and remanded for the trial court to resentence defendant and to consider in the first instance whether concurrent sentencing was appropriate in this case.