People v. Aledamat, B282911

• Court: California Court of Appeals
• Writing for the Court: HOFFSTADT, J.
• Citation: 20 Cal.App.5th 1149,229 Cal.Rptr.3d 771
• Parties: The PEOPLE, Plaintiff and Respondent, v. Yazan ALEDAMAT, Defendant and Appellant.
• Docket Number: B282911
• Decision Date: 01 March 2018

20 Cal.App.5th 1149
229 Cal.Rptr.3d 771

The PEOPLE, Plaintiff and Respondent,
v.
Yazan ALEDAMAT, Defendant and Appellant.

B282911

Court of Appeal, Second District, Division 2, California.

Filed March 1, 2018

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.

HOFFSTADT, J.

20 Cal.App.5th 1151

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 assault conviction is invalid because 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, 153 P.2d 315 ( McCoy ).) Defendant is correct. Further, because this error placed a legally invalid theory before the jury, we are compelled to reverse this conviction as well as the enhancement for personal use of a deadly weapon, which used the same inapplicable definition of "deadly weapon."

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

20 Cal.App.5th 1152

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) ),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)-

229 Cal.Rptr.3d 773

(j) ) and a prior serious felony (§ 667, subd. (a)(1) ).

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

20 Cal.App.5th 1153

"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, 68 Cal.Rptr.2d 655, 945 P.2d 1204 ( Aguilar ); People v. Graham (1969) 71 Cal.2d 303, 327–328, 78 Cal.Rptr. 217, 455...