Inquiry Concerning Judge John T. Laettner. !!!party1!!! v. !!!party2!!!

• Decision Date: 06 November 2019
• Docket Number: No. 203.,203.
• Citation: 8 Cal.5th CJP Supp. 1
• Parties: INQUIRY CONCERNING JUDGE JOHN T. LAETTNER.
• Court: California Supreme Court

8 Cal.5th CJP Supp. 1

INQUIRY CONCERNING JUDGE JOHN T. LAETTNER.

No. 203.

Supreme Court of California, Fifth District.

November 6, 2019.

OPINION

CHIN, J.—

Defendant Yazan Aledamat was charged with assault with a deadly weapon, specifically a box cutter. A few objects are inherently deadly weapons. Others, including a box cutter, are deadly weapons only if used in a way that makes them deadly weapons. Here, the trial court erroneously permitted the jury to consider the box cutter an inherently deadly weapon. It presented the jury with two possible theories of guilt: (1) that the box cutter was inherently deadly, and (2) that defendant used the box cutter in a deadly way. The first of these theories was erroneous under the facts. A box cutter is, as a matter of law, not inherently deadly. The second theory was correct. We must decide what standard of review applies to this error.

We conclude the usual "beyond a reasonable doubt" standard of review established in Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824] (Chapman) for federal constitutional error applies. The reviewing court must reverse the conviction unless, after examining the entire cause, including the evidence, and considering all relevant circumstances, it determines the error was harmless beyond a reasonable doubt. On this record, applying this standard, we conclude beyond a reasonable doubt that the error

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was harmless. Accordingly, we reverse the judgment of the Court of Appeal, which found the error prejudicial.

I. FACTUAL AND PROCEDURAL HISTORY

The Court of Appeal opinion summarized the 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." (People v. Aledamat (2018) 20 Cal.App.5th 1149, 1151-1152 (Aledamat).)

As relevant to the issue on review, the People charged defendant with assault with a deadly weapon under Penal Code section 245, subdivision (a)(1), and making a criminal threat under Penal Code section 422.¹ As to the threat charge, the People also alleged that defendant personally used a deadly and dangerous weapon. (§ 12022, subd. (b)(1).) The case went to a jury trial.

The court instructed the jury that, for the assault charge, the People had to prove the following: "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 say [sic] person; the defendant did that act willfully; 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; and when the defendant acted, he had the present ability to apply force with a deadly weapon other than a firearm to a person." (See CALCRIM No. 875.)

The 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 and likely to cause death or . . . great bodily injury." (See CALCRIM No. 875.) Regarding the weapon enhancement, the court instructed that "a deadly or dangerous weapon is any object, instrument, or weapon that is inherently dangerous, . . . or one that is used in such a way that it is capable of causing or likely to cause death or great bodily injury. In

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deciding whether an object is a deadly weapon, consider all of the surrounding circumstances including when and where the object was possessed and any other evidence that indicates whether the object would be used for a dangerous rather than a harmless purpose." (See CALCRIM No. 3145.) The court did not define what "inherently" deadly or dangerous meant.

In his opening argument to the jury, the prosecutor argued that the box cutter was a "deadly weapon" because "[i]f used in a way to cause harm, it would cause harm." Emphasizing the word "probably," defense counsel argued that defendant's act would not probably result in the application of force to the victim. Defense counsel did not specifically discuss whether the box cutter was a deadly weapon. In his closing argument, the prosecutor argued that the box cutter was an "inherently deadly weapon," noting that "you wouldn't want your children playing with" it.

The jury convicted defendant of both counts and found the weapon allegation true. The court sentenced defendant to prison, and he appealed.

The Court of Appeal affirmed the conviction for making a criminal threat. But it reversed the conviction of assault with a deadly weapon and the true finding on the weapon allegation. It found that the trial court erroneously permitted the jury to find the box cutter to be an inherently deadly weapon. It believed the error required it to reverse the conviction "`absent a basis in the record to find that the verdict was actually based on a valid ground,'" which "exists only when the jury has `actually' relied upon the valid theory." (Aledamat, supra, 20 Cal.App.5th at p. 1153.) It found "no basis in the record for concluding that the jury relied on the alternative definition of `deadly weapon' (that is, the definition looking to how a noninherently dangerous weapon was actually used)." (Id. at p. 1154.)

The Court of Appeal added that "the rules regarding prejudice that we apply in this case are arguably in tension with more recent cases, such as People v. Merritt (2017) 2 Cal.5th 819 [216 Cal.Rptr.3d 265, 392 P.3d 421], providing that the failure to instruct on the elements of a crime does not require reversal if those omitted elements are `uncontested' and supported by `"overwhelming evidence."' (Id. at pp. 821-822, 830-832; see Neder v. United States (1999) 527 U.S. 1, 17-18 [144 L.Ed.2d 35, 119 S.Ct. 1827].) That test would certainly be satisfied here, where defendant never disputed that the box cutter was being used as a deadly weapon and where the evidence of such use is overwhelming." (Aledamat, supra, 20 Cal.App.5th at p. 1154.)

We granted the Attorney General's petition for review to determine the standard of review of error of this kind, and to determine whether the error was prejudicial under this standard.

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II. DISCUSSION

A. The Error

The jury found defendant guilty of assault with a deadly weapon under section 245, subdivision (a)(1), and, as to the criminal threat charge, it found true that defendant personally used a deadly or dangerous weapon under section 12022, subdivision (b)(1). The court instructed the jury that a weapon could be either inherently deadly or deadly in the way defendant used it. The instruction accurately stated the law. However, as the parties agree, the evidence did not support the instruction.

"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.' [Citation.] Some few objects, such as dirks and blackjacks, have been held to be deadly weapons as a matter of law; the ordinary use for which they are designed establishes their character as such. (People v. Graham (1969) 71 Cal.2d 303, 327 [78 Cal.Rptr. 217, 455 P.2d 153]. . . .) Other objects, while not deadly per se, may be used, under certain circumstances, in a manner likely to produce death or great bodily injury. 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." (People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029 [68 Cal.Rptr.2d 655, 945 P.2d 1204]; accord, People v. Perez (2018) 4 Cal.5th 1055, 1065 [232 Cal.Rptr.3d 51, 416 P.3d 42].)

Because a knife can be, and usually is, used for innocent purposes, it is not among the few objects that are inherently deadly weapons. "While a knife is not an inherently dangerous or deadly instrument as a matter of law, it may assume such characteristics, depending upon the manner in which it was used. . . ." (People v. McCoy (1944) 25 Cal.2d 177, 188 .) "A box cutter is a type of knife" that, "because it is designed to cut things and not people," is not an inherently deadly weapon as a matter of law under McCoy. (Aledamat, supra, 20 Cal.App.5th at p. 1153; see People v. Stutelberg (2018) 29 Cal.App.5th 314, 317 (Stutelberg) [also involving assault with a box cutter].)²

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Accordingly, as the Court of Appeal held in this case, and as the court in Stutelberg, supra, 29 Cal.App.5th at page 317, held, the trial court erred in presenting the jury with two theories by which it could find the box cutter a deadly weapon: (1) inherently or (2) as used. The first theory (inherently) is incorrect, but the second theory (as used) is correct.

In People v. Guiton (1993) 4 Cal.4th 1116 [17 Cal.Rptr.2d 365, 847 P.2d 45] (Guiton), we considered the consequences when a court instructs on two theories of guilt, one correct and the other incorrect.³ We distinguished between two categories of incorrect theories. Under what we called a "`factually inadequate theory,'" the theory is incorrect only because the evidence does not support it. (Guiton, at p. 1128.) We said that "[i]f the inadequacy of proof is purely factual, of a kind...