Opinion
A156500
06-11-2020
THE PEOPLE, Plaintiff and Respondent, v. XAVIER J. LOGAN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City & County Super. Ct. No. 230117; 18015787)
Defendant Xavier J. Logan challenges his conviction for assault with a deadly weapon, contending the evidence was insufficient to support the jury's verdict, the trial court abused its discretion in denying his motion for a new trial, and the standard jury instruction CALCRIM No. 875, which was given at trial, misstates the law and prejudicially affected the verdict. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
On April 11, 2018, C.R. was in San Francisco with coworkers for a team-bonding event at an afternoon San Francisco Giants baseball game. C.R. had "[a]bout two beers" at the game. After the game, C.R. and his coworkers went to several bars, starting at a wine bar near the ballpark. When they left the wine bar, they went to a bar named The Brixton in the Marina District, where a couple of C.R.'s friends joined the group. After spending about two hours at The Brixton, the group went next door to another bar, Bar None, for about two more hours. C.R. testified he had two beers at the ballpark, no alcohol at the wine bar, and about four beers total at The Brixton and Bar None. He also ingested cocaine twice at The Brixton. Finally, C.R. and a friend walked to The Black Horse London Pub (the Black Horse) on Union Street near Van Ness Avenue, arriving around 9:00 or 9:30 p.m. At the Black Horse, C.R. had "a couple" more beers. Patrons at the Black Horse that evening testified that C.R. was moderately intoxicated, was not "totally drunk," and was "happy," "laughing," and "making some jokes." The Black Horse was a "cash only" bar, so C.R. left to find an ATM to get money to pay for his drinks.
C.R. walked out of the bar, turned left, and started to walk to the corner liquor store. Just before he reached the store, he saw "[a] bunch of blankets and sleeping bags" and a man sitting on the sidewalk who C.R. identified at trial as defendant. Defendant was wearing a hat, "hoodie," and khakis, and had "kind of a bushy, curly blond hair." C.R. asked defendant "what was going on," and defendant replied it was his choice to be living on the street. They talked for two to four minutes, then C.R. told defendant, "I'll be right back," and went to the liquor store. C.R. was intending to get defendant "some supplies to make it through that night."
At 9:57 p.m., C.R. went into the liquor store, bought two bottles of Vita Coco coconut water, a bag of chips, a can of chewing tobacco, and a bottle of whiskey. C.R. testified the coconut water and chips were for "them" but he bought the chewing tobacco for himself. The liquor store's video surveillance camera recorded C.R.'s purchases and other activity during that entry and show him talking with the two store clerks. At 10:01 p.m., C.R. left the liquor store, returned to defendant, and tried to give defendant the chips and the waters. Defendant told C.R. he did not want the food. He thought C.R. "was trying to impress someone," "act[ing] like [he] had more." C.R. testified at that point, he noticed there was a woman "hidden under all the blankets" on the ground and he thought defendant was referring to her. The woman "kind of . . . popped up" and said, "like me."
There was a woman lying under the blankets, but C.R. testified he did not notice the woman until later. He testified he bought the two coconut waters for one person, presumably defendant.
As C.R. and defendant continued to talk about homelessness and why it was defendant's choice to be in this situation, the conversation became more hostile. Defendant had been sitting down, but then he stood up and began "gesturing and talking with his hands" in a "[n]egative" tone. Because defendant did not want the waters and the chips, C.R. put them on the ground "right outside of their blankets." C.R. and defendant talked for about 20 minutes.
At 10:22 p.m., C.R. went back into the liquor store because he remembered he still needed to get cash. The surveillance video showed C.R. talking to and shaking hands with the two clerks, Jasmine L. and her coworker. C.R. told Jasmine he was at the "bar which is next to [the] liquor store." She testified C.R. was "drunk" and "not normal. . . . how to say—he wasn't rude but he was a little bit mean," asking about her relationship with her coworker. Jasmine, who was raised in Korea and had only spoken English for two years, was offended by C.R.'s personal questions. She also testified he showed her the cash he withdrew from the ATM. Nonetheless, Jasmine said C.R. shook her hand "softly" and as they continued talking, he was not mean anymore.
When C.R. came back out of the liquor store five minutes later, he returned to defendant, who was standing. At trial, C.R. testified he could not remember why he resumed the conversation with defendant. They had another interaction, which C.R. testified "was all kind of blurred together" but ended in a negative tone. At trial, C.R. testified he "went into shock" and could not remember anything that happened during that interaction, and he "was completely out of it." He could not remember if defendant said anything to him. C.R. did not see defendant holding a weapon or remember that defendant threatened him. C.R. also was not carrying a weapon and did not say anything threatening, touch defendant, the woman with him, or any of their belongings, or do anything physical toward defendant.
Jasmine L. testified that at 10:31 p.m., a man with long blond hair in a hat came into the liquor store and shouted that he "didn't attack him first" and he did not "have any fault." A video clip from the surveillance camera showing a man entering the store was played for the jury. Jasmine said the man entered the store and made those comments before the ambulance arrived for C.R. Jasmine was unable to identify defendant at trial.
When cross-examined about whether the man entered the store before or after the ambulance arrived, Jasmine L. testified her coworker (not her) told the police the man came into the store after the ambulance arrived.
After his final interaction with defendant, C.R. went back to the Black Horse. C.R. testified that after he entered the bar there was a "doctor" who pushed him up against the wall "and started snapping in [his] face, hey, hey, you just got stabbed, you'll be okay. Someone call 911." C.R. looked down and saw he was bleeding. The blood soaked through the t-shirt and sweater he was wearing. C.R. testified he had a three-inch-deep, inch-and-a-half-wide wound in between his ribs on the right side of his body. C.R.'s bloody t-shirt and sweater, which had holes in the fabric, were admitted in evidence at trial, as were photographs of his wound.
Seth P., a patron at the Black Horse, testified C.R. walked up to him, looked him in the eye, and lifted his shirt without comment. He seemed to be pleading for help. Seth P. was a psychotherapist, not a medical doctor, but had previously worked as an orthopedic technician and trauma team member in an emergency room, was "combat lifesaver trained," and was an embedded therapist with the National Guard. He had seen stab wounds in his 20's in an emergency room in Vancouver. Seth "immediately realized that [C.R.] had been injured, stabbed . . . and . . . [he] went into . . . crisis mode and told somebody to call 911, and sat [C.R.] down, and asked [the bartender] [for] towels . . . to put pressure on that wound." Seth saw that C.R. was bleeding from "the right side of his torso." Seth saw "blood running down from [C.R.'s] wound, some [blood] on his shirt and some on his pants." Seth "asked [C.R.] who stabbed you or how did you get stabbed." C.R. said, "[A] homeless guy on the corner stabbed me."
Kelly C., another patron at the Black Horse, affirmed that the first thing C.R. said after returning to the bar was that a homeless guy stabbed him. Kelly said he saw C.R. was bleeding, sat him down on one of the stools, and asked the bartender for paper towels. He initially helped apply pressure to C.R.'s wound with the paper towels before someone else took over; he testified the wound "bled pretty profusely." Kelly called 911 and told the operator there had been a stabbing. When the 911 operator asked Kelly if there was a suspect, he replied, "I don't know."
Both Kelly C. and Seth P. testified they had seen a man on the sidewalk that evening before entering the Black Horse. Kelly C. testified the man had curly blond hair and had "a sleeping bag kind of arrangement, blankets against the wall" and "articles kind of strewn around." There was a blanket or tarp over his face. Seth P. testified he saw a blue tarp near the corner of Van Ness Avenue and Union Street, and saw a man sitting there partially covered by the tarp. He was seated and had "long, straggly, brownish-blond hair."
While someone else administered first aid to C.R., Kelly C. stepped outside, looked down the sidewalk toward the liquor store, and saw "there was nobody there." The sleeping bag and articles that surrounded the man he had seen on his way into the bar were gone.
At 10:35 p.m., a San Francisco Police Department sergeant on routine patrol in the area responded to a report of a "stabbing." When the sergeant arrived at the Black Horse one minute later, he saw a man seated and leaning on the bar counter, groaning in discomfort, who was being tended to by another bar patron. The sergeant described his extensive "experience on the street responding to numerous stabbings, suicides by knife, cutting, as well as medical training [he] receive[s] every two years where they go over rather graphic photos and videos . . . depicting how different wounds are caused." When he saw C.R., the sergeant "almost immediately" determined he had been "the victim of a stabbing." He saw C.R.'s wound, which "looked like a stab wound on the right side of his rib cage about mid-height on the right side" with "blood coming out from the stab wound. . . . [a]nd . . . running down the side of [his] rib cage down his torso." The sergeant further described C.R.'s wound as "about an inch long and pretty narrow in width. . . . the size of a . . . small or medium sized knife." The wound was narrow and "looked as if it was caused by a knife or a sharp object that had stabbed into the victim's side" as opposed to a wide slash.
A paramedic from the San Francisco Fire Department who treated C.R. at the Black Horse treated the wound as "a penetrating stab wound." C.R. and bystanders told the paramedic "he had been stabbed." The paramedic wrote C.R.'s statement in his patient care report and placed C.R.'s actual words in quotation marks. The paramedic testified about his report, stating, "When I asked him how long ago he had been stabbed, he said 15 minutes ago specifically. And when I asked him what happened, he said I was trying to help these homeless people and he stabbed me." C.R.'s story of how he received the injury was one of the reasons the paramedic decided to "trauma activate[ ]" C.R. The paramedic said C.R. had a "penetration past the skin and there was 200-milliliter amount of blood loss noted on the floor that the patient had bled outside his body." The paramedic acknowledged that alcohol acts as a blood thinner that makes it "a little harder to stop the bleeding."
C.R. was transported to the hospital by ambulance with full lights and sirens. He spent three days in the hospital. During his hospitalization, C.R. had to stuff gauze inside himself to soak up the blood from his wound, "which would go pretty deep." He had four follow-up medical visits after he was discharged from the hospital. His injury was "very uncomfortable, painful." It took two months before he could walk normally and get up on his own, and five months before he was able to get back into his activities. He was still experiencing discomfort from the wound at the time of trial.
Police officers seized two bottles of Vita Coco and a bag of chips found on the sidewalk near the liquor store, which were sent to the crime lab for DNA testing. The investigating officer was notified there was a match to a potential suspect, defendant, in the California DNA database. The officer conducted a "computer workup" with defendant's name and obtained defendant's photographs from police "databanks." He then compared the photographs to surveillance videos from the liquor store and concluded the suspect's particular characteristics matched defendant's. A warrant was issued for defendant, who was subsequently located in Los Angeles, and arrested and transported to San Francisco.
A warrant was later issued for a sample of defendant's DNA, which was sent to the crime lab. At trial, a criminalist expert in DNA extraction, comparison, and analysis testified to "[v]ery strong support" for potential match of defendant's DNA sample to one of the samples of DNA found on one of the coconut waters and the bag of chips. The investigating officer, who also took photographs of defendant when he booked him into jail, identified defendant in court.
Dr. Rachael Callcut, an attending trauma surgeon who was part of C.R.'s care team, described his injury as a "liver laceration," which was "a crack or tear in the capsule of the liver." She testified C.R.'s computerized axial tomography (CAT) scan showed a 2.8-centimeter laceration of the liver, which describes how deep the laceration went into the liver. B. Procedural Background
A defense expert in emergency medicine opined that C.R.'s liver was not penetrated and testified the CAT scan report stating he had a "liver laceration" was "incorrect."
On November 1, 2018, the district attorney filed an information charging defendant with one count of assault with a deadly weapon, not a firearm (Pen. Code, § 245, subd. (a)(1)), with an allegation of personal infliction of great bodily injury (§ 12022.7, subd. (a)).
The deadly weapon was identified in the information as a "sharp instrument."
All further statutory references are to the Penal Code, unless otherwise indicated.
During the seven-day jury trial in January 2019, defendant twice moved for a directed acquittal, which the trial court twice denied. The jury found defendant guilty of assault with a deadly weapon and found true the great bodily injury allegation.
Defendant moved for a new trial under section 1181, subdivision (6). The trial court denied the motion, sentenced defendant to one year in county jail, suspended imposition of the sentence, and granted formal probation. Defendant timely appealed.
II. DISCUSSION
A. Sufficiency of the Evidence
Defendant first contends insufficient evidence supports the jury's verdict. "In evaluating a claim regarding the sufficiency of the evidence, we review the 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. Westerfield (2019) 6 Cal.5th 632, 713.) " 'To assess the evidence's sufficiency, we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime . . . beyond a reasonable doubt.' " (People v. Penunuri (2018) 5 Cal.5th 126, 142.)
" 'The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence.' [Citations.] 'We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also be reasonably reconciled with a contrary finding.' " (People v. Westerfield, supra, 6 Cal.5th at p. 713.)
Although he acknowledges there is no dispute that C.R. was injured by an instrument that caused a puncture wound, defendant argues the evidence was insufficient to support the jury's findings that (1) C.R.'s injury resulted from an assault, (2) defendant committed the assault, or (3) the instrument that caused the injury was a deadly weapon. Because there is insufficient evidence the injury resulted from an assault by defendant, he contends, the evidence is also insufficient to support the true finding of personal infliction of great bodily injury by defendant. We are not persuaded.
First, while it is true C.R. testified that during his third and final encounter with defendant, he "went into shock" and "was completely out of it," there is substantial circumstantial evidence both that he was assaulted, and that defendant committed the assault. Patrons at the bar that evening testified C.R. was in a happy mood, laughing and making jokes before he went to the liquor store to get money from the ATM. While he was in the liquor store, he was making conversation with the clerks and shook their hands. C.R. testified he had no weapon on him that evening. A few minutes later, C.R. returned to the bar, bleeding profusely with a puncture wound in his right side. Seth P., who had prior experience with stab wounds when he worked in an emergency room, "immediately realized that [C.R.] had been . . . stabbed." Seth P., Kelly C., and the paramedic all testified that C.R. said he was stabbed by a homeless man. Around the same time C.R. returned to the Black Horse, defendant entered the liquor store, shouting that he did not attack first and it was not his fault. Although Kelly C. testified he had seen a man matching the description of defendant near the corner of Van Ness Avenue and Union Street earlier, when he stepped outside the Black Horse and looked up the street, the man and most of his belongings were gone.
C.R. also testified about his encounters with defendant. In their second conversation, defendant was upset with C.R.'s offer of food and offended that C.R. was "trying to impress someone" by showing he "had more." Their conversation started out normal, but became "hostile," and "amped up" as defendant raised his voice and gestured and talked with his hands. C.R. testified their second and third conversations both followed that pattern, and both ended on a negative tone. The surveillance videos, DNA evidence, and testimony of Seth P., Kelly C., Jasmine L., and C.R. place defendant at the scene before and after the stabbing. Although no witness testified to seeing the stabbing or the type of weapon used, the jury could reasonably infer from the nature of C.R.'s wound and the surrounding circumstances that defendant used a knife or other sharp instrument to end his argument with C.R.
Defendant argues C.R.'s testimony does not support the verdict because his memory got better over time and C.R. denied telling Seth P. he had been stabbed by a homeless man. He also suggests that the paramedic's testimony was not substantial evidence because the paramedic was relying on what C.R. told him about being stabbed, and challenges Kelly C.'s testimony because he failed to tell the 911 dispatcher that C.R. said a homeless person stabbed him. On appeal, however, we do not reevaluate the credibility of the witnesses or reweigh the evidence. (People v. Reed (2018) 4 Cal.5th 989, 1006-1007; see Orozco v. WPV San Jose, LLC (2019) 36 Cal.App.5th 375, 391 ["We are 'not a second trier of fact.' "].)
Defendant also contends other evidence supports different theories as to what might have happened. For example, defendant cites C.R.'s statement in his trial testimony that his injury was an "accident" in support of an accident defense. Defendant also contends defendant's statement inside the liquor store that he did not attack first and it was not his fault shows "at best" he was acting in self-defense. The trial court, however, gave pinpoint instructions on both accident and self-defense, and the jury rejected both theories. Moreover, our task on appeal is not to search for alternative possible interpretations of the evidence, but to determine if, viewing the evidence in the light most favorable to the judgment and resolving all conflicts in its favor, there is substantial evidence, circumstantial or otherwise, to support the verdict. For the reasons stated above, we find ample circumstantial evidence supports the jury's finding that defendant assaulted C.R.
Defendant next asserts that because the actual weapon was never identified, there is no evidence it was a deadly weapon. 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.' " (People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029; CALCRIM No. 875.) The definition includes inherently deadly items "such as dirks and blackjacks," which are specifically designed as weapons and are therefore "deadly weapons as a matter of law," as well as other objects that are "not deadly per se" but which "may be used . . . in a manner likely to produce death or great bodily injury." (Aguilar, at p. 1029.) A knife, for example, is not an inherently deadly weapon, but may be a deadly weapon if used in a manner likely to cause death or great bodily injury. (People v. Aledamat (2019) 8 Cal.5th 1, 6 (Aledamat); In re B.M. (2018) 6 Cal.5th 528, 533.) "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.)
Defendant argues that "[w]ithout an object being found, and without a single witness, including [C.R.], having seen what caused the wound, the evidence that a deadly weapon was used in this case is speculative . . . ." Not so. Here, the jury could reasonably infer from the fact that C.R. had a three-inch-deep, inch-and-a-half-wide wound that lacerated his liver, was bleeding "pretty profusely," and was treated as a stab wound by a trained paramedic and a police officer with extensive experience with stab wounds and knife cuts, that an object was used on C.R. in a manner likely to cause great bodily injury. Moreover, the police officer testified that it looked like C.R.'s wound "was caused by a knife or a sharp object." Whether the object was a knife, or merely a sharp object that made a cut like a knife, is irrelevant, because either of those objects could be a deadly weapon if used in a way likely to cause great bodily injury. The jury was entitled to consider all of those facts as circumstantial evidence in concluding an object was used against C.R. in such a manner that it was a deadly weapon. B. New Trial
Alternatively, defendant argues the trial court abused its discretion in denying his motion for a new trial under section 1181, subdivision (6) on the ground that the jury's verdict was contrary to the law or evidence. After the jury returned its verdict, defense counsel made a motion for new trial, arguing the same points he raises in his substantial evidence argument above: that there was no proof a weapon was used, no percipient witness to what happened, a complaining witness who was severely intoxicated and referred to his injury as an "accident," and that defendant's statements in the liquor store show he acted in self-defense.
We review a trial court's denial of a motion for new trial for abuse of discretion. (People v. Fuiava (2012) 53 Cal.4th 622, 730 [trial court's action will not be disturbed " ' " 'unless a manifest and unmistakable abuse of discretion clearly appears' " ' "].) " 'In reviewing a motion for a new trial, the trial court must weigh the evidence independently. [Citation.] It is, however, guided by a presumption in favor of the correctness of the verdict and proceedings supporting it. [Citation.] The trial court "should [not] disregard the verdict . . . but instead . . . should consider the proper weight to be accorded to the evidence and then decide whether or not, in its opinion, there is sufficient credible evidence to support the verdict." ' " (Id. at pp. 729-730.)
Defendant contends the trial court "should have reviewed the evidence as an independent 13th juror, found that because of the lack of substantial evidence there was a reasonable doubt that [defendant] committed assault with a deadly weapon, and granted a new trial." Defendant cites nothing in the record, however, that would indicate the trial court did not review the evidence independently, considering both its sufficiency and weight. The trial court presided over the entire trial and had considered defendant's arguments that the evidence was insufficient in his motions for directed acquittal. It had an extensive colloquy with counsel at one hearing about the motion, the evidence, and the applicable law. Defendant expressly relied on the same factual arguments in his motion for a new trial. At the hearing on the motion for new trial, the court admitted it found "a lot" of defendant's points "persuasive," but expressly stated they did not "rise to the level of warranting a grant of a new trial under the statute."
We presume the trial court was aware of and followed the applicable law. (People v. Sullivan (2007) 151 Cal.App.4th 524, 549; Evid. Code, § 664.) Moreover, defense counsel argued the applicable standard of review at the hearing and in his motion. For the reasons stated above, the jury's verdict is supported by substantial circumstantial evidence, and we therefore conclude the trial court did not abuse its discretion in denying defendant's motion for new trial. C. CALCRIM No. 875
Defendant argues the standard CALCRIM instruction No. 875 on assault with a deadly weapon misstates the law in two ways: first, it incorporates a legal definition of aggravated assault that is inappropriate when an assault is committed with an object that is not deadly as a matter of law and, second, it fails to define "inherently deadly," allowing jurors to convict if they believe an object is "potentially deadly."
Defendant's counsel did not object to the instruction at trial. The Attorney General asserts defendant forfeited the objection by failing to object. However, we may review claims of instructional error that allegedly affect a defendant's substantial rights, notwithstanding a failure to object below. (§ 1259; People v. Amezcua and Flores (2019) 6 Cal.5th 886, 916.)
1. Additional Background
The trial court instructed the jury with CALCRIM No. 875, in relevant part, as follows:
"To prove that the defendant is guilty of this crime, the People must prove that:
"1. The defendant did an act with a deadly weapon other than a firearm that by its nature would directly and probably result in the application of force to a person;
"2. The defendant did that act willfully;
"3. When the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone;
"4. When the defendant acted, he had the present ability to apply force with a deadly weapon other than a firearm to a person;
"And
"5. The defendant did not act in self-defense or in defense of someone else."
"[A]pplication of force" and "apply force" were defined to mean "to touch in a harmful or offensive manner. The slightest touching can be enough if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind."
The instruction defined "deadly weapon other than a firearm" 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 and likely to cause death or great bodily injury."
2. Application of Force
As to the definition of aggravated assault, defendant argues CALCRIM No. 875 misstates the law because it "tells the jury that the heart of the offense is taking an act that would probably result in 'the application of force' to the victim but then defines the 'application of force' as being satisfied by 'the slightest touching.' " Defendant contends "[w]hile this instruction is correct in the rare cases where a defendant is alleged to have used an 'inherently deadly' weapon, it is not correct in a case where an individual commits assault with a non-deadly object."
Defendant further argues that here, because the object used to injure C.R. was never found, it cannot be assumed it was an inherently deadly weapon. As CALCRIM No. 875 states, unless a weapon is "inherently deadly," it must be wielded in a manner "capable of causing and likely to cause death or great bodily injury." "In analyzing whether this has been established," defendant contends, " 'the focus is on the force actually exerted by the defendant, not the amount of force that could have been used,' " (quoting People v. McDaniel (2008) 159 Cal.App.4th 736, 748 (McDaniel)).
According to defendant, CALCRIM No. 875 "distorts this basic point, because it says three times that the central fact the prosecution must establish is that the defendant has taken an action that would probably result in the 'application of force' but then it defines the 'application of force' as being satisfied by 'the slightest touching' or any 'contact' at all. Thus, in this case, the jury was not required to find that [defendant] used the instrument in a way that was likely to produce death or great bodily [injury]. Instead, the jury was told that the crime was established as long as [defendant] used the instrument in a manner that would 'probably result' in a 'slight touching' or a 'contact.' " Defendant adds that the definition of CALCRIM No. 875 does not cure the problem because its language that the weapon must be "used in such a way that it is capable of causing and likely to cause death or great bodily injury" allows the jury to consider the hypothetical uses of a weapon, rather than to evaluate the way the defendant actually used the weapon. (McDaniel, supra, 159 Cal.App.4th at p. 748.)
For several reasons, we find these arguments unavailing. First, the crime of assault does not require intent to inflict bodily harm but only an unlawful attempt, coupled with present ability, to commit a violent injury on the person of another. (People v. Colantuono (1994) 7 Cal.4th 206, 214, 219.) "The mens rea [for assault with a deadly weapon] is established upon proof the defendant willfully committed an act that by its nature will probably and directly result in injury to another . . . ." (Id. at p. 214.)
Second, defendant's argument ignores the facts of this case, which show C.R. suffered more than a "slight touching" or "contact." As discussed above, the record evidence in this case shows that C.R. testified he "went into shock" after his third encounter with defendant, told bar patrons he had been stabbed, and was bleeding profusely from what appeared to be a stab wound in his right side.
Third, we reject defendant's argument because it appears to confuse subdivision (a)(1) of section 245 with section (a)(4) of the same statute. As noted above, defendant, citing McDaniel, supra, 159 Cal.App.4th at page 748, argues that in assessing whether a non-inherently deadly weapon is " 'capable of producing and likely to produce' " death or great bodily injury, the focus must be on the " 'force actually exerted by the defendant, not the amount of force that could have been used.' " The language defendant quotes from McDaniel did not involve the crime of assault with a deadly weapon under section 245, subdivision (a)(1), however, but pertained to the different crime of aggravated assault upon the person of another "by any means of force likely to produce great bodily injury" under subdivision (a)(4) of section 245. (See Aguilar, supra, 16 Cal.4th at p. 1028 ["One may commit an assault without making actual physical contact with the person of the victim; because [section 245] focuses on use of a deadly weapon or instrument [(i.e., subd. (a)(1))] or, alternatively, on force likely to produce great bodily injury [(i.e., subd. (a)(4))], whether the victim in fact suffers any harm is immaterial."].) Because the court in McDaniel reversed the defendant's conviction on due process grounds, it addressed for "future guidance in the event of a retrial" whether the court should instruct on the lesser included offense of "simple assault" in addition to "assault by force likely to produce great bodily injury." (McDaniel, at pp. 747, 748.) In doing so, the McDaniel court specifically recognized the defendant could not be guilty of assault with a deadly weapon because the jury had "expressly found . . . that the assault was not committed with a deadly or dangerous weapon." (Id. at p. 748.) Accordingly, we conclude McDaniel is inapposite here, where defendant was found guilty of assault with a deadly weapon under section 245, subdivision (a)(1).
The defendant in McDaniel was convicted under the former version of section 245, which included both crimes in subdivision (a)(1). Former section 245, subdivision (a)(1) read, in pertinent part: "Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by means of force likely to produce great bodily injury shall be punished . . . ." The statute was amended in 2010 to reflect nonsubstantive reorganization of statutes governing control of deadly weapons.
But even assuming there was instructional error as defendant alleges, we find any such error was harmless beyond a reasonable doubt. The evidence here, as summarized above, shows defendant was offended by C.R.'s offer of food, that their interactions ended in a negative tone, that after his final interaction with defendant, C.R. went to the Black Horse where he told bar patrons he had been stabbed by a homeless person, while defendant ran into the liquor store shouting that he did not attack first and it was not his fault. Defendant had a puncture wound that "bled pretty profusely." A bar patron with emergency room experience and a police officer with extensive experience with knife cuts and stabbings both testified the injury was consistent with a stab wound. Moreover, as defendant acknowledges, "if injuries do result [from an assault], 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." (People v. Brown (2012) 210 Cal.App.4th 1, 7; In re B.M., supra, 6 Cal.5th at p. 530.) Here, the jury heard testimony from percipient witnesses, saw photographs of the injury and torn clothing, and heard expert medical testimony about the nature of C.R.'s injury. They learned he suffered a puncture wound that lacerated his liver and kept him in the hospital for three days. C.R. was still experiencing discomfort from his injury at the time of trial. On this evidence, the jury could reasonably conclude the object used on C.R. was actually used in a way capable of producing great bodily injury.
Taken together, such evidence supports our conclusion beyond a reasonable doubt that the jury verdict in this case would have been the same even if the jury was required to find that defendant applied force that was more than a "slight touching" as defendant argues; or to consider the force actually exerted by defendant and whether such force was "likely to produce great bodily injury" as he also argues. (See CALCRIM No. 875; see also People v. McCloud (2017) 15 Cal.App.5th 948, 957 [a reviewing court should not find an instructional error harmless unless it can conclude beyond a reasonable doubt, after a thorough examination of the record, that the jury verdict would have been the same absent the alleged error].)
Nor do we agree with defendant that the jury's request to hear readback of testimony concerning the absence of blood on the sidewalk, statements made by defendant in the store, and expert testimony on short- and long-term memory indicates that the jury viewed the case as "close." The requests " 'could as easily be reconciled with the jury's conscientious performance of its civic duty, rather than its difficulty in reaching a decision.' " (People v. Houston (2005) 130 Cal.App.4th 279, 301.) Defendant points to nothing in the record showing the jurors at any time were having difficulty reaching a verdict. "[T]o conclude that this was a 'close case' in light of the jury's action 'in the absence of more concrete evidence would amount to sheer speculation on our part.' " (Ibid.)
3. Failure to Define "Inherently Deadly"
Defendant next contends the instruction on assault with a deadly weapon is incorrect as a matter of law because it uses the expression "inherently deadly" to refer to a weapon that will support a conviction, but it never defines that expression. Defendant argues the failure to define "inherently deadly" weapon lowers the prosecution's burden of proof, and had the jury in this case been forced to consider whether the evidence showed defendant actually used the weapon in a manner likely to cause serious injury or death, they might have been unable to reach a verdict. Although we agree with defendant it was likely error to give the "inherently deadly" instruction under the facts of this case, we conclude reversal is not required because the error was not prejudicial under the beyond a reasonable doubt standard employed by the California Supreme Court in Aledamat, supra, 8 Cal.5th 1.
As an initial matter, we disagree with defendant's argument that CALCRIM No. 875 misstates the law. As our Supreme Court recently concluded in Aledamat, the instruction correctly states the law. (Aledamat, supra, 8 Cal.5th at p. 6.) We do, however, agree with defendant that the trial court erred in giving the standard instruction in its entirety under the facts of this case.
In Aledamat, the defendant used a box cutter to threaten to kill a food truck vendor. Because a box cutter, being a type of knife, is not an inherently deadly weapon, the trial court erred in instructing the jury there were two theories by which it could find the box cutter was a deadly weapon—either "inherently" or "as used." While the "as used" instruction was correct, the inherently deadly instruction was incorrect as a matter of law. (Aledamat, supra, 8 Cal.5th at pp. 6-7.) In this case, there was no direct evidence as to what type of object was used to inflict C.R.'s wound, and thus, the jury would have been unable to conclude the weapon was "inherently" deadly as a matter of law. As a result, we likewise conclude the trial court erred in instructing the jury on that alternative theory of guilt.
After an examination of the record, however, we conclude any error was harmless beyond a reasonable doubt. In Aledamat, the Supreme Court found the trial court's instructional error harmless beyond a reasonable doubt because while technically the jury could have found the box cutter was inherently deadly without considering any of the surrounding circumstances, in context it was "unlikely the jury would so view the instructions." (Aledamat, supra, 8 Cal.5th at p. 13.) The court noted, "The instruction referred to an object that is 'inherently deadly or one that is used in such a way that it is capable of causing and likely to cause death or . . . great bodily injury.' This juxtaposition at least indicates what the 'inherently deadly' language was driving at." (Id. at pp. 13-14.) Moreover, the jury was also instructed that in deciding whether an object is a deadly weapon, it was to " 'consider all of the surrounding circumstances . . . . suggest[ing] the question was unitary, that is, that the jury had to consider all of the circumstances in deciding whether the object was a deadly weapon, either inherently or as used." (Id. at p. 14.) Given this further instruction, the court concluded, it was "unlikely the jury would simply view the box cutter as inherently deadly without considering the circumstances, including how defendant used it." (Ibid.) The same is true here—because the trial court instructed the jury to consider all of the surrounding circumstances, we presume it did so.
The Attorney General contends any instructional error in this case is purely "factual" error and not "legal" error because defendant's weapon was never seen or presented in evidence. In Aledamat, our Supreme Court explained that "factually inadequate theories" are subject to a more lenient standard of review. (Aledamat, supra, 8 Cal.5th at p. 8.) Because we find the error harmless under the more stringent beyond a reasonable doubt standard, however, we need not resolve whether the error was legal or factual.
Indeed, it is even more likely the jury considered all of the surrounding circumstances in this case, because the only evidence about the object used to cause C.R.'s injuries was circumstantial evidence. Because no weapon was seen or found, the jury had to rely on testimony that C.R. said he had been stabbed and the nature and extent of his injuries to conclude he had been assaulted with a deadly weapon. In doing so, it necessarily considered whether the object was used in such a way that it was capable of causing death or great bodily injury.
Moreover, as in Aledamat, "no one ever suggested to the jury that there were two separate ways it could decide whether the box cutter was a deadly weapon." (Aledamat, supra, 8 Cal.5th at p. 14.) Indeed, the prosecutor told the jury to focus on how defendant actually used the weapon by arguing "the defendant did an act with a deadly weapon. That's our stabbing."
Finally, the court in Aledamat also considered "what the jury necessarily did find and ask[ed] whether it would be impossible, on the evidence, for the jury to find that without also finding the missing fact as well. [Citation.] Here, under the instructions, the jury necessarily found the following: (1) defendant did an act with a deadly weapon (either inherently or as used) that by its nature would directly and probably result in the application of force; (2) defendant was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone; and (3) defendant had the present ability to apply force with a deadly weapon to a person." (Aledamat, supra, 8 Cal.5th at p. 15.) If the jury applied its common sense to determine the object used on C.R. was a deadly weapon, it would necessarily have found it "deadly in the colloquial sense of the term—i.e., readily capable of inflicting deadly harm—and that defendant used it as a weapon." (Ibid.) We conclude, as did the court in Aledamat, that any reasonable jury making such findings would have also concluded defendant used the object in a way capable of causing or likely to cause death or great bodily injury. As a result, we conclude any instructional error was harmless beyond a reasonable doubt. (Ibid.)
III. DISPOSITION
The judgment is affirmed.
/s/_________
Margulies, J. We concur: /s/_________
Humes, P. J. /s/_________
Banke, J.