P. v. Elwell

Filed 7/5/18 P. v. Elwell CA5
(Opinion following rehearing)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
AARON PAUL ELWELL,
Defendant and Appellant.
F072024
(Super. Ct. No. BF159154A)
OPINION
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. John R.
Brownlee, Judge.
S. Lynne Klein, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief
Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L.
Christoffersen and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff
and Respondent.
-ooOoo-
* Before Peña, Acting P.J., Smith, J. and Meehan, J.

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2.
Defendant Aaron Paul Elwell was charged with attempted second degree robbery
(Pen. Code,1 §§ 212.5, subd. (c), 664 [count 1]) and brandishing a deadly weapon, i.e., a
box cutter (§ 417, subd. (a)(1) [count 2]). In connection with count 1, the information
alleged he personally used a deadly weapon (§ 12022, subd. (b)(1)); was previously
convicted of first degree burglary, a qualifying “strike” offense under the Three Strikes
law (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)) and serious felony (§ 667, subd. (a));
and previously served a prison term (§ 667.5, subd. (b)).
Following a trial, the jury found defendant guilty as charged and found true the
special allegation he used a deadly weapon. In a bifurcated proceeding, the trial court
found true the remaining special allegations. Defendant was sentenced to six years, plus
five years for the prior serious felony conviction and one year for using a deadly weapon,
on count 1.2 He also received a concurrent 90-day jail term on count 2.
On appeal, defendant contends the trial court erred by (1) instructing the jury on
the elements of attempted robbery and attempted theft simultaneously; and (2) imposing a
doubled base term of six years for the attempted second degree robbery conviction. In
our original opinion, we concluded the aforementioned instruction was not erroneous and
the court had the authority to impose a six-year doubled base term. We subsequently
granted rehearing and ordered the parties to submit further briefing on whether People v.
Aledamat (2018) 20 Cal.App.5th 1149 (Aledamat) compels reversal of defendant’s
brandishing conviction and the deadly weapon use enhancement. We conclude it does
not. Accordingly, we affirm the judgment.
1 Subsequent statutory citations refer to the Penal Code.
2 Because the prior serious felony and prior prison term allegations were based on
the same offense, the court did not impose the enhancement for the prior prison term.
(See People v. Perez (2011) 195 Cal.App.4th 801, 805.)

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3.
STATEMENT OF FACTS
On February 9, 2015, at 11:10 a.m., defendant entered a Rite Aid pharmacy.
Michelle Leonard, an asset protection associate dressed in plain clothes, noticed he
“immediately started looking around to see where the associates were.” She observed
defendant pocketing a pack of batteries from one aisle and a bicycle pump from another
aisle. Less than a minute later, he exited the pharmacy. Leonard and Edgar Muralles, the
store manager, followed defendant and instructed him to accompany them. Defendant
initially refused to cooperate and asserted “he did not take anything.” He “kept moving
side to side and looking around” “like somebody weighing [his] options.” Ultimately,
defendant agreed to go back to the store.
Leonard and Muralles brought defendant to the stockroom. Leonard, who held a
clipboard, told defendant to return the merchandise. He gave her the batteries but
maintained they belonged to him. Leonard replied, “[N]o. They’re mine. I’d seen you
select them, and I’d seen you conceal them.” Defendant pulled out a box cutter with “the
blade out” and said, “[G]ive me my fucking batteries back.” He “was very angry.”
Leonard “threw [her] hands up,” took “two steps back,” and remarked, “[W]hoa. It’s not
that serious.” She was “[s]cared” because she “honestly thought [defendant] was going
to try to cut [her].” Leonard “grabbed [her] phone and started taking pictures of him.”
Defendant put the box cutter away and asked, “[W]hy [are] [you] taking pictures of
[me?]” Leonard answered, “[B]ecause if you cut me, then the police department is going
to have your picture.” She then scribbled “call BPD” on a piece of paper and showed it
to Muralles. After waiting for “a couple of seconds,” Muralles announced he “needed to
go check in on a vendor” and left the stockroom to call 911. Meanwhile, Leonard
conversed with defendant “to keep him calm.” She asked him to return the bicycle pump
and he complied. Leonard, however, was “still scared.”
Approximately five to seven minutes after Muralles called 911, Officers Lewis
and Barajas of the Bakersfield Police Department (BPD) arrived. In the stockroom,

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4.
Lewis searched defendant and found the box cutter in his pocket. During a subsequent
interview with Barajas, defendant admitted he took the batteries and bicycle pump and
expressed remorse. He also admitted he “presented a knife to [Leonard]” but insisted he
“wasn’t going to use it.” Barajas also spoke with Leonard, who was “distraught” and
“had some paleness to her skin.” She told him “the blade to the box cutter” “was
exposed” at the time of the incident.
At trial, defendant admitted he tried to steal the batteries and bicycle pump. In the
stockroom, at Leonard’s request, he emptied his pockets. Defendant handed her the
batteries and bicycle pump with “an open palm.” The box cutter, which “was closed all
the way,” was also “in an open palm.” When Leonard “backed up” and said, “[W]hoa,
whoa, whoa, you know, it’s not that serious,” defendant was baffled. He then “noticed
[he] had a weapon in [his] hand” and deduced she “felt frightened or scared.” Without
prompting, defendant put the box cutter away. He only used the blade “to remove the
stolen merchandise” and never pointed it at Leonard. Defendant denied saying, “[G]ive
me my fucking batteries back.”
DISCUSSION
I. The trial court’s instruction on the elements of attempted robbery or
theft was not erroneous.
a. Background.
Prior to closing arguments, the court instructed the jury:
“[CALCRIM No. 460 (Attempt Other Than Attempted Murder):]
The defendant is charged in Count 1 . . . with attempted robbery and a
lesser included offense of attempted petty theft.
“To prove that the defendant is guilty of this crime, the People must
prove that, one, the defendant took a direct but ineffective step toward
committing robbery, and two, the defendant intended to commit robbery.
“A direct step requires more than merely planning or preparing to
commit robbery or obtaining or arranging for something needed to commit
robbery. [¶] A direct step is one that goes beyond planning or preparation

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5.
and shows that a person is putting his or her plan into action. [¶] A direct
step indicates a definite and unambiguous attempt to commit robbery. It is
a direct movement towards the commission of the crime after preparations
are made. [¶] It is an immediate step that puts the plan in motion so that
the plan would have been completed if some circumstances outside the plan
had not interrupted the attempt.
“A person who commits robbery is guilty of attempted robbery, even
if[,] after taking a direct step towards committing the crime[,] he or she
abandons further efforts to complete the crime or if his or her attempt failed
or was interrupted by someone or something beyond his or her control. [¶]
On the other hand, if a person freely, voluntarily abandons his or her plans
before taking a direct step toward committing robbery, then that person is
not guilty of attempted robbery.
“To decide whether the defendant committed robbery, please refer to
the separate instructions that I will give you on that crime, which is
CALCRIM [No.] 1600.
“[CALCRIM No. 1600 [(Robbery):] The defendant is charged in
Count 1 with attempted robbery. CALCRIM [No.] 460 defines attempt,
which I just gave you. This instruction defines robbery.
“To prove that the defendant is guilty of robbery, the People must
prove that, one, the defendant took property that was not his own; two, the
property was taken from another person’s possession and immediate
presence; three, the property was taken against the person’s will; four, the
defendant used force or fear to take the property or prevent the person from
resisting; and five, when the defendant used force or fear to take the
property, he intended to deprive the owner of it permanently or remove it
from the owner’s possession for so extended a period of time that the owner
would be deprived of a major portion of the value or the enjoyment of the
property.
“The defendant’s intent to take the property must have been formed
before or during the time he used force or fear. If the defendant did not
form this required intent until after using the force or fear, then he did not
commit robbery.
“A person takes something when he or she gains possession of it and
moves it some distance. The distance may be short.
“The property taken can be of any value, however slight. A person
does not have to actually hold or touch something to possess it. It is

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6.
enough if that person has control over it or the right to control it, either
personally or through another person.
“A store or business employee who is on duty has possession of the
store or business owner’s property.
“Fear as used here means fear of injury to the person himself or
herself or immediate injury to someone else present during the incident or
to that person’s property.
“Property is within a person’s immediate presence if it is sufficiently
within his or her physical control that he or she could keep possession of it,
if not prevented by force or fear.
“An act is done against a person’s will if that person does not
consent to the act. In order to consent, a person must act freely and
voluntarily and know the nature of the act. [¶] . . . [¶]
“[CALCRIM No. 1800 (Theft by Larceny):] Defendant is charged
in Count 1 with the lesser included offense of attempted petty theft by
larceny, in violation of . . . [s]ection 484.
“To prove that the defendant is guilty of this crime, the People must
prove that, one, the defendant took possession of property owned by
someone else; two, the defendant took the property without the owner[’s] or
owner’s agent’s consent; three, when the defendant took the property, he
intended to deprive the owner of it permanently or to remove it from the
owner’s possession for so extended a period of time that the owner would
be deprived of a major portion of the value or enjoyment [of the property];
and four, the defendant moved the property, even a small distance, and kept
it for any period of time, however brief.
“An agent is someone to whom the owner has given complete or
partial authority and control over the owner’s property.
“For petty theft, the property can be of any value, no matter how
slight.”
After the prosecutor concluded his summation and the jury was excused for lunch,
the court advised the parties:
“I need to re-read to the jury CALCRIM [No.] 460, which is attempt,
because I only included partially robbery and petty theft in the attempt and

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7.
didn’t explain to them an attempt goes to both the robbery and the lesser
crime.”
After defense counsel’s summation and the prosecutor’s rebuttal, the court
informed the jury:
“Just a few follow[]up instructions, ladies and gentlemen. I am
going to re-read you one instruction that I read this morning. [CALCRIM
No.] 460. Don’t feel that I’m giving it any more weight. It’s just that I left
something out of it. Okay?”
Thereafter, the court instructed:
“Defendant is charged in Count 1 with robbery and a lesser included
offense of attempted petty theft.
“To prove that the defendant is guilty of these crimes, the People
must prove that, one, the defendant took a direct but ineffective step toward
committing robbery or theft, and two, the defendant intended to commit
robbery or theft.
“A direct step requires more than merely planning or preparing to
commit robbery or theft or obtaining or arranging for something needed to
commit robbery or theft. [¶] A direct step is one that goes beyond planning
or preparation and shows that a person is putting his or her plan into an
action. [¶] A direct step indicates a definite and unambiguous attempt to
commit robbery or theft. [¶] It is direct movement towards the commission
of the crime after preparations are made. It’s an immediate step that puts
the plan in motion so that the plan would have been completed if some
circumstance outside of the plan had not interrupted the attempt.
“A person who attempts to commit robbery or theft is guilty of
attempted robbery or theft, even if, after taking a direct step toward
committing the crime, he or she abandons further efforts to complete the
crime, or if his or her attempt failed or was interrupted by something or
someone beyond his or her control. [¶] On the other hand, if a person
freely and voluntarily abandons his or her plans before taking a direct step
toward committing robbery or theft, then that person is not guilty of
attempted robbery or theft.
“To decide whether the defendant intended to commit robbery or
theft, please refer to the separate instructions that I will give on the crime.

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8.
“So for robbery, [CALCRIM No.] 1600. For theft, [CALCRIM No.]
1800.”
b. Analysis.
Defendant contends the court’s modified CALCRIM No. 460 “repeatedly referred
to the offenses of robbery and theft in the alternative” and improperly “informed th[e]
jury that proof of the intent to commit theft and the direct but ineffective step in
committing theft would suffice for an attempted robbery conviction.” Because defense
counsel did not object to the instruction below, the Attorney General asserts defendant
forfeited his claim on appeal. However, section 1259 provides an appellate court may
review “any instruction given, refused or modified, even though no objection was made
thereto in the lower court, if the substantial rights of the defendant were affected
thereby.” (Accord, People v. Brown (2003) 31 Cal.4th 518, 539, fn. 7.) “ ‘Ascertaining
whether claimed instructional error affected the substantial rights of the defendant
necessarily requires an examination of the merits of the claim . . . .’ [Citation.]” (People
v. Lawrence (2009) 177 Cal.App.4th 547, 554, fn. 11.)3
Upon review, we find no error. “ ‘[T]he correctness of jury instructions is to be
determined from the entire charge of the court, not from a consideration of parts of an
instruction or from a particular instruction.’ [Citation.]” (People v. Castillo (1997) 16
Cal.4th 1009, 1016; accord, People v. Anderson (2015) 232 Cal.App.4th 1259, 1279.)
Here, in advance of closing arguments, the court instructed the jury on attempted robbery
(CALCRIM No. 460), robbery (CALCRIM No. 1600), and theft by larceny (CALCRIM
No. 1800) but not the lesser included offense of attempted theft. (See People v. Wilson
(1992) 3 Cal.4th 926, 941-942 [“A trial court must instruct on a lesser included offense
when the evidence raises a question as to whether all of the elements of the charged
offense are present and there is evidence that would justify a conviction of the lesser
3 As a result, we need not address defendant’s alternative claim of ineffective
assistance of counsel, which is premised on a finding of forfeiture.

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9.
offense.”].) Following closing arguments and prior to deliberations, the court issued the
modified CALCRIM No. 460, which specifies an attempted robbery or attempted theft
requires (1) a specific intent to commit the particular crime; and (2) a direct but
ineffectual step toward its commission. (Accord, § 21a.) The instruction ends: “To
decide whether the defendant intended to commit robbery or theft, please refer to the
separate instructions that I will give you on the crime,” i.e., CALCRIM Nos. 1600 and
1800, respectively. While defendant alleges the modified CALCRIM No. 460 somehow
permitted the jury to convict him of attempted robbery based solely on evidence of
attempted theft, when “considered in context, it is clear there is no reasonable likelihood
jurors understood [the instruction] as [defendant] asserts.” (People v. Lawrence, supra,
177 Cal.App.4th at p. 557; see People v. Henley (1969) 269 Cal.App.2d 263, 271 [“We
must . . . assume that the jurors are intelligent persons and capable of understanding and
correlating all jury instructions which are given.”].)
Even assuming, arguendo, there was instructional error, defendant’s substantial
rights were not affected. “The cases equate ‘substantial rights’ with reversible error, i.e.,
did the error result in a miscarriage of justice?” (People v. Arredondo (1975) 52
Cal.App.3d 973, 978, citing Cal. Const., art. VI, § 13 & People v. Watson (1956) 46
Cal.2d 818, 836.) “[A] ‘miscarriage of justice’ should be declared only when the court,
‘after an examination of the entire cause, including the evidence,’ is of the ‘opinion’ that
it is reasonably probable that a result more favorable to the appealing party would have
been reached in the absence of the error.” (People v. Watson, supra, at p. 836; accord,
People v. Callahan (1999) 74 Cal.App.4th 356, 363.)
As noted, “[w]here an attempt to commit a crime is charged, two important
elements are essential to conviction: a specific intent to commit the crime, and a direct
ineffectual act toward its commission.” (People v. Neal (1950) 97 Cal.App.2d 668, 672.)
“ ‘Specific intent as an element of a crime may be proved by showing circumstances
surrounding the act from which it may be inferred by the court as a trier of facts. Direct

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10.
proof is not required but the circumstances must be such as would justify the court in
inferring the intent with which the act was done. [Citation.]’ [Citation.]” (Ibid.) In the
instant case, defendant does not dispute he was guilty of attempted theft. “ ‘Robbery is
essentially [theft] aggravated by use of force or fear to facilitate the taking of property
from the person or presence of the possessor.’ ” (People v. Smith (2009) 177 Cal.App.4th
1478, 1489-1490.) Fear “may be either . . . [¶] . . . [t]he fear of an unlawful injury to the
person or property of the person robbed, or of any relative of his or member of his family;
[¶] or, [¶] . . . [t]he fear of an immediate and unlawful injury to the person or property
of anyone in the company of the person robbed at the time of the robbery.” (§ 212.) The
record demonstrates defendant stole batteries and a bicycle pump but was caught and
brought to the stockroom. There, Leonard ordered him to return the merchandise.
Defendant gave her the batteries but falsely claimed they belonged to him. When he was
disproven, he became angry, pulled out a box cutter with the blade extended, and said,
“[G]ive me my fucking batteries back.” Leonard was scared and believed defendant
would cut her. She raised her hands in the air, stepped back, and stated, “[W]hoa. It’s
not that serious.” In addition, she alerted Muralles to call the police by scribbling “call
BPD” on a piece of paper and showing it to him instead of verbalizing her request. Even
after law enforcement arrived and subdued defendant, Leonard appeared “distraught” and
pale. (See People v. Anderson (2011) 51 Cal.4th 989, 994 [“In California, ‘[t]he crime of
robbery is a continuing offense that begins from the time of the original taking until the
robber reaches a place of relative safety.’ [Citation.] It thus is a robbery when the
property was peacefully acquired, but force or fear was used to carry it away.”].) We
cannot find a reasonable probability the jury would have reached a verdict more
favorable to defendant.

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11.
II. The trial court had the authority to impose a six-year doubled base
term for the attempted second degree robbery conviction.
As noted, defendant’s sentence on count 1 was comprised of a six-year doubled
base term plus five years for the prior serious felony conviction and one year for using a
deadly weapon, on count 1.
“Robbery of the second degree is punishable by imprisonment in the state prison
for two, three, or five years.” (§ 213, subd. (a)(2).) “Notwithstanding [s]ection 664,
attempted robbery in violation of paragraph (2) of subdivision (a) is punishable by
imprisonment in the state prison.” (§ 213, subd. (b).)
Defendant contends the proper sentencing triad for attempted second degree
robbery is one, one and a half, or two and a half years. He cites section 664, which reads
in pertinent part:
“Every person who attempts to commit any crime, but fails, or is prevented
or intercepted in its perpetration, shall be punished where no provision is
made by law for the punishment of those attempts, as follows:
“(a) If the crime attempted is punishable by imprisonment in the state
prison, . . . the person guilty of the attempt shall be punished by
imprisonment in the state prison . . . for one-half the term of imprisonment
prescribed upon a conviction of the offense attempted. . . .”
According to defendant, when taking into account his prior strike conviction (see §§ 667,
subd. (e), 1170.12, subd. (c)), the court could only impose a doubled base term of two,
three, or five years. We disagree.4
“Section 664, subdivision (a), governs the sentencing of attempted felonies where
the punishment is not otherwise specified by statute . . . .” (People v. Epperson (2017) 7
Cal.App.5th 385, 388.) “However, section 213, subdivision (b) specifically provides for
the punishment of attempted second degree robbery, stating: ‘Notwithstanding [s]ection
4 Because we consider the merits of defendant’s contention, we need not address his
alternative claim of ineffective assistance of counsel, which is premised on a finding of
forfeiture.

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12.
664, attempted robbery in violation of paragraph (2) of subdivision (a) [robbery of the
second degree] is punishable by imprisonment in the state prison.’ ” (People v. Moody
(2002) 96 Cal.App.4th 987, 990; cf. People v. Epperson, supra, at p. 388 [attempted first
degree robbery governed by § 664, subd. (a), because § 213 does not specifically provide
for punishment of attempted first degree robbery].)
“Although attempts to commit a felony punishable under the [determinate
sentencing law] are normally punished by one-half of the term prescribed for a completed
crime (§ 664, subd. (a)), the punishment for attempted second degree robbery is an
exception to the rule. Section 213, subdivision (b), when combined with section 18,
provides that attempted second degree robbery is punishable by 16 months, two years, or
three years in state prison.” (People v. Neely (2009) 176 Cal.App.4th 787, 797.) Hence,
in the instant case, taking into account defendant’s prior strike conviction, the court was
authorized to impose a doubled upper base term of six years.
III. Although the trial court’s “deadly or dangerous weapon” instruction
placed a legally invalid theory before the jury, reversal of defendant’s
brandishing conviction and the deadly weapon use enhancement is
unwarranted.
a. Background.
Prior to closing arguments, the court instructed the jury:
“[CALCRIM No. 3145 (Personally Used Deadly Weapon):] If you
find the defendant guilty of the crimes charged in Count 1, you must then
decide whether the People have proved the additional allegations the
defendant personally used a deadly or dangerous weapon during the
commission of that crime.
“A deadly or dangerous weapon is any object, instrument, or weapon
that is inherently deadly or dangerous or one that is used in such a way that
is capable of causing and likely to cause death or great bodily injury.
“In 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.

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“Great bodily injury means significant or substantial physical injury.
It is an injury that is greater than minor or moderate harm.
“Someone uses a deadly or dangerous weapon if he or she
intentionally does any of the following: One, . . . [¶] [d]isplays the
weapon in a menacing manner, or two, hits someone with the weapon.
“The People have the burden of proving each allegation beyond a
reasonable doubt. [¶] If the People have not met this burden, you must
find the allegation has not been proven. [¶] . . . [¶]
“[CALCRIM No. 983 (Brandishing Firearm or Deadly Weapon:
Misdemeanor):] Defendant is charged in Count 2 with brandishing a
deadly weapon . . . .
“To prove that the defendant is guilty of this crime, the People must
prove that, one, the defendant drew or exhibited a deadly weapon in the
presence of someone else, and two, the defendant did so in a rude, angry, or
threatening manner.
“A deadly weapon is any object, instrument, or weapon that is
inherently deadly or dangerous or one that is used in a way that is capable
of causing and likely to cause death or great bodily injury.
“Great bodily injury means significant or substantial physical injury.
It is an injury that is greater than minor or moderate harm.”
In his summation, the prosecutor argued:
“Now, a deadly or dangerous weapon is any object, instrument, or
weapon that is either inherently deadly or dangerous or one that is used in
such a way that it is capable of causing and likely to cause death or great
bodily injury.
“In deciding whether an object is a deadly weapon, consider all the
surrounding circumstances, including when and where the object was
possessed.
“This – this is the thing. We all know things like a gun, you know, a
12-inch blade, those are deadly weapons. Pretty apparent.
“But there’s some things that can be used both ways. A box cutter is
a great example. This is a tool. It can be used for innocuous purposes.

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“If, you know, while he’s threatening someone he’s . . . voluntarily
cutting up some of their boxes for them, you know, that’s not a deadly
weapon. On that context this would not be a deadly weapon. It’s being
used the way it’s supposed to. The same with say a pair of scissors.
“But when you hold this and it’s – actually you even have a warning
on this blade right here. I’ll show it to you. [¶] Warning. Extremely sharp
blade.
“I think anyone who has any experience with box cutters knows
these are razor blades, incredibly sharp. . . . Holding something like this is
now a deadly weapon. You can slice someone’s throat open with this. You
can take out their eyes. You can give them all sorts of lacerations that are
going to require stitches.
“This is a deadly weapon when you’re pointing it at someone in this
manner. You know, some of the things that can be found as [a] deadly
weapon, a pen, a pencil. It’s an innocuous item, but even someone can be
stabbed with this in the throat. . . . [¶] . . . [¶]
“. . . You know, when someone is writing down something, it’s not.
But . . . when you use an item in such a manner that it could cause some
sort of death or just great bodily injury, then it’s a deadly weapon . . . .”
b. Analysis.
In Aledamat, the defendant was charged with assault with a deadly weapon, inter
alia, after he thrusted the exposed blade of a box cutter toward the victim and threatened
to kill him. It was further alleged defendant personally used a deadly or dangerous
weapon in violation of section 12022, subdivision (b)(1). (Aledamat, supra, 20
Cal.App.5th at pp. 1151-1152.) Prior to deliberations, the judge instructed the jury a
“ ‘deadly weapon’ ” was “ ‘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.’ ” (Id. at p. 1152.) In his summation, the prosecutor told the jury a box
cutter constituted a deadly weapon because “ ‘[i]f [it is] used in a way to cause harm, it
would cause harm.’ ” (Ibid.) In rebuttal, he added a box cutter was “an ‘inherently
deadly weapon’ because ‘you wouldn’t want your children playing with’ it.” (Ibid.) The

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jury found the defendant guilty as charged and found true the deadly weapon allegation.
(Ibid.)
On appeal, Division Two of the Second Appellate District reversed the assault
conviction and the deadly weapon enhancement. (Aledamat, supra, 20 Cal.App.5th at
pp. 1151, 1155.) Citing Supreme Court precedent, the court held “[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.’ ” (Id. at p. 1153, quoting
People v. McCoy (1944) 25 Cal.2d 177, 188.) Hence, the judge erroneously instructed
the jury it could find the defendant’s box cutter to be an inherently deadly weapon. (See
Aledamat, supra, at p. 1153.) Furthermore, the court found the error prejudicial:
“When an appellate court determines that a trial court has presented
a jury with two theories supporting a conviction—one legally valid and one
legally invalid—the conviction must be reversed ‘absent a basis in the
record to find that the verdict was actually based on valid ground.’
[Citation.] That basis exists only when the jury has ‘actually’ relied upon
the valid theory [citations]; absent such proof, the conviction must be
overturned—even if the evidence supporting the valid theory was
overwhelming [citation]. . . .
“We conclude that the trial court’s instruction defining a ‘dangerous
weapon’ to include an ‘inherently dangerous’ object entails the presentation
of a legally . . . invalid theory. . . . [A] box cutter cannot be an inherently
deadly weapon ‘as a matter of law.’ [Citation.] This is functionally
indistinguishable from the situation in which a jury is instructed that a
particular felony can be a predicate for felony murder when, as a matter of
law, it cannot be. Because this latter situation involves the presentation of a
legally invalid theory [citation], so does this case.
“Further, we must vacate the assault conviction because there is 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). [Citation.] Indeed,
the prosecutor in his rebuttal argument affirmatively urged the jury to rely
on the legally invalid theory when he called the box cutter an ‘inherently
deadly weapon.’ And because the trial court used the same definition of
‘deadly weapon’ for both the assault charge and the personal use

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16.
enhancement, both suffer from the same defect, and both must be vacated.”
(Aledamat, supra, 20 Cal.App.5th at pp. 1153-1154.)
Here, via CALCRIM Nos. 983 and 3145, the court instructed the jury a deadly or
dangerous weapon is any object, instrument, or weapon that is either “inherently deadly
or dangerous” or “used in such a way that it is capable of causing and likely to cause
death or great bodily injury.” Because it is undisputed defendant used a box cutter, and a
box cutter is not an inherently deadly or dangerous weapon as a matter of law, the court
placed a legally invalid theory (“inherently deadly or dangerous”) as well as a legally
valid one (“used in such a way that it is capable of causing and likely to cause death or
great bodily injury”) before the jury. The remaining question is whether there is a basis
in the record for concluding the jury relied on the legally valid theory. We conclude
there is. In Aledamat, the prosecutor “affirmatively urged the jury to rely on the legally
invalid theory when he called the box cutter an ‘inherently deadly weapon.’ ” (Aledamat,
supra, 20 Cal.App.5th at p. 1154, italics added.) However, in the instant case, though the
prosecutor in his summation recited the court’s deadly weapon instruction verbatim, he
emphasized a box cutter is “a tool” that “would not be a deadly weapon” if “[i]t’s being
used the way it’s supposed to,” i.e., “cutting up . . . boxes,” in contrast to a “gun” and a
“12-inch blade,” which are “[p]retty apparent[ly]” “deadly weapons.” In other words, the
prosecutor pushed the jury to consider only the legally valid theory.
Notwithstanding the court’s erroneous instruction, reversal of defendant’s
brandishing conviction and the deadly weapon use enhancement is unwarranted.
DISPOSITION
We affirm the judgment.

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