Opinion
B282911
10-24-2019
THE PEOPLE, Plaintiff and Respondent, v. YAZAN ALEDAMAT, Defendant and Appellant.
Andrea S. Bitar, 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, Senior Assistant Attorney General, Steve Mercer, Timothy L. O'Hair and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA451225)
OPINION ON REMAND
APPEAL from a judgment of the Superior Court of Los Angeles County. Stephen A. Marcus, Judge. Affirmed. Andrea S. Bitar, 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, Senior Assistant Attorney General, Steve Mercer, Timothy L. O'Hair and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
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Yazan Aledamat (defendant) thrust the exposed blade of a box-cutter toward a man while threatening, "I'll kill you." A jury convicted him of assault with a deadly weapon and making criminal threats. Defendant argues that the trial court wrongly instructed the jury that a "deadly weapon" includes an "inherently deadly" weapon when a box cutter is not an inherently deadly weapon as a matter of law. (See People v. McCoy (1944) 25 Cal.2d 177, 188 (McCoy).) Defendant is correct. The difficult question is whether this instructional error was harmless. In a prior, published decision in this case, we held that (1) our Supreme Court's earlier decision in People v. Guiton (1993) 4 Cal.4th 1116, 1122, 1129 (Guiton) required us to use a more cramped definition of harmless error applicable where, as here, a trial court has instructed a jury on multiple theories underlying a conviction, one of which is legally invalid (rather than factually invalid), and (2) Guiton's definition, while binding on us, was nonetheless in tension with our Supreme Court's more recent pronouncements about harmless error. (People v. Aledamat (2018) 20 Cal.App.5th 1149.) Our Supreme Court granted review and reversed, concluding that Guiton's proffered definition was not the only definition of harmless error applicable in this situation and that the error was here, under a broader definition, harmless. (People v. Aledamat (2019) 8 Cal.5th 1 (Aledamat ).) Accordingly, we affirm defendant's convictions and enhancements.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
In October 2016, defendant approached a woman working at a lunch truck parked in downtown Los Angeles. He told her that he found her attractive and asked her for her phone number; she declined, explaining that she was married with children. On October 22, 2016, defendant approached the woman's husband, who owned the food truck. Defendant asked, "Where's your wife?" Defendant then told the man that he wanted to "fuck" his wife because she was "very hot" and "had a big ass and all of that." When the man turned away to remove his apron, defendant pulled a box cutter out of his pocket and extended the blade; from three or four feet away, defendant thrust the blade at the man at waist level, saying "I'll kill you." Two nearby police officers on horses intervened and arrested defendant. II. Procedural Background
The People charged defendant with (1) assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), and (2) making a criminal threat (§ 422). The People further alleged that defendant personally used a deadly and dangerous weapon (§ 12022, subd. (b)(1)). Additionally, the People alleged defendant's 2014 robbery conviction constituted a prior "strike" within the meaning of our Three Strikes Law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(j)) and a prior serious felony (§ 667, subd. (a)(1)).
All further statutory references are to the Penal Code unless otherwise indicated.
The matter proceeded to a jury trial. When instructing the jury on assault with a deadly weapon and on the personal use enhancement, the trial court defined "a deadly weapon" as "any object, instrument, or weapon that is inherently deadly or one that is used in such a way that it is capable of causing or likely to cause death or great bodily injury."
During the prosecutor's initial closing argument, he told the jury that a "box cutter" was a "deadly weapon" because "[i]f [it is] used in a way to cause harm, it would cause harm." During his rebuttal argument, he asserted that the box-cutter was an "inherently deadly weapon" because "you wouldn't want your children playing with" it.
The jury returned guilty verdicts on both counts, and found the enhancement allegation to be true. After defendant admitted his prior conviction, the trial court sentenced defendant to 12 years in prison on the criminal threats count, comprised of a base sentence of six years (three years, doubled due to the prior strike), plus five years for the prior serious felony, plus one year for the personal use of a deadly weapon. The court imposed a concurrent, six-year sentence on the assault count, comprised of a base sentence of six years (three years, doubled due to the prior strike).
Defendant filed a timely notice of appeal.
DISCUSSION
For purposes of both assault with a deadly weapon and the enhancement for personal use of a deadly weapon, an object or instrument can be a "deadly weapon" if it is either (1) "inherently deadly" (or "deadly per se" or a "deadly weapon[] as a matter of law") because it is "'"dangerous or deadly" to others in the ordinary use for which [it is] designed,'" or (2) "used . . . in a manner" "capable of" and "likely to produce[] death or great bodily injury," taking into account "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; People v. Graham (1969) 71 Cal.2d 303, 327-328; In re Jose R. (1982) 137 Cal.App.3d 269, 275-276; CALCRIM Nos. 875, 3130)].) A box cutter is a type of knife, and "a knife"—because it is designed to cut things and not people—"is not an inherently dangerous or deadly instrument as a matter of law." (McCoy, supra, 25 Cal.2d at p. 188.)
Against the backdrop of this law, defendant argues that the trial court erred in instructing the jury that it could find the box cutter to be an "inherently deadly" weapon. Although the instruction the trial court gave is correct in the abstract (People v. Velasquez (2012) 211 Cal.App.4th 1170, 1176), the People agree that it was inapplicable here, where the weapon was a box cutter. Employing de novo review (People v. Manriquez (2005) 37 Cal.4th 547, 581), we—as well as our Supreme Court—also agree it was error to give this instruction. (Aledamat, supra, 8 Cal.5th at p. 8.)
The remaining issue is whether this instructional error was prejudicial.
As alluded to above, our Supreme Court resolved this question in its opinion in Aledamat. There, the court ruled that (1) this type of instructional error "is subject to the more general Chapman [v. California (1967) 386 U.S. 18, 24] harmless error test" (Aledamat, supra, 8 Cal.5th at p. 13); (2) one "nonexclusive" test for harmlessness under Chapman is to examine whether "it would be impossible," based on "what the jury necessarily did find" and "on the evidence," "for the jury [not] to [also] find[] the missing fact" (here, that the box-cutter was used as a deadly weapon) (id. at pp. 14-15); and (3) it would be impossible for the jury in this case not to also find that the box-cutter was used as a deadly weapon (id. at p. 15).
In light of these rulings, our task on remand is simple: We affirm the defendant's judgment of conviction and sentence.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, J.
HOFFSTADT We concur: /s/_________, P. J.
LUI /s/_________, J.
ASHMANN-GERST