In People v. Pearson (2012) 53 Cal.4th 306the Supreme Court found the evidence insufficient to support a finding the defendant had personally used a deadly or dangerous weapon--a stake or stick--in the commission of a rape, kidnap and murder. The defendant admitted to police he, in concert with others, wrestled the victim to the ground, moved her to the place where the assault occurred, raped her, kicked her and moved her body after the attack, but said two other men had used the stake or stick to beat and sexually penetrate the victim. There was no physical evidence or eyewitness testimony that tied the defendant to the weapon, which was never recovered. Even viewing the evidence in the light most favorable to the judgment, the Court held, the evidence was insufficient to support a finding the defendant had personally used the stick in the attack (Id. at p. 319 "the evidence leaves it entirely possible defendant used the stake in attacking Sigler, but does not support a finding of such use beyond a reasonable doubt".)