P. v. Davis

Filed 4/3/19 P. v. Davis CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
ERIC LEWIS DAVIS,
Defendant and Appellant.
D073554
(Super. Ct. No. SCD273996)
APPEAL from a judgment of the Superior Court of San Diego County, John M.
Thompson, Judge. Affirmed.
Paul R. Kraus, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L Garland, Assistant Attorney General, A. Natasha Cortina and Amanda E.
Casillas, Deputy Attorneys General, for Plaintiff and Respondent.
Yelling, "You're going to die," Eric Lewis Davis chased John M. with a seven-
inch knife and got an arm's length away from stabbing him. A jury convicted Davis of

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assault with a deadly weapon (Pen. Code,1 § 245, subd. (a)(1); count 1) and making a
criminal threat (§ 422; count 2). The jury also found that Davis personally used a
dangerous and deadly weapon. Subsequently, the court found that Davis had two prison
priors and sentenced him to four years in prison.
On appeal, Davis contends his convictions should be reversed because the trial
court (1) failed to sua sponte instruct on simple assault as a lesser included offense of
aggravated assault, and (2) gave erroneous jury instructions defining "deadly weapon."
The Attorney General concedes that the court erroneously defined "deadly weapon," but
asserts that error was harmless.
We affirm. The court had no obligation to instruct on simple assault because the
evidence established that if Davis was guilty at all, it was for aggravated assault.
Moreover, the instructional error was harmless beyond a reasonable doubt under this
court's recent decision in People v. Stutelberg (2018) 29 Cal.App.5th 314 (Stutelberg).
FACTUAL BACKGROUND
A. The People's Case
John M. was waiting for a bus in downtown San Diego. He was carrying his
skateboard (about 40 inches long) and had some expensive plants that he was delivering.
Davis walked by the bus stop and swatted at John's plants. John, who did not
know Davis, told him that the plants "are like my kids. Don't touch my kids."
1 Undesignated statutory references are to the Penal Code.

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After walking about a half-block away, Davis returned, carrying a knife with a
seven-inch blade and said to John, "You're going to die now." John retreated into the
street, but Davis chased him aggressively with the knife. John used his skateboard as a
shield, jabbing it at Davis to keep him away. After a few minutes, police arrived and
arrested Davis.
Two witnesses corroborated John's testimony. Jessica D. saw Davis pull the knife
from his waistband and testified that Davis, who was acting "aggressively," got within six
inches to one foot of John. Jason S., an on-duty security officer, testified that Davis was
stabbing at John and got within an arm's length away.
B. Defense Case
Davis testified that he stopped to look at John's plants because he is a "landscape
architecture [sic]." John told him to "get the fuck away from his plant." Davis thought
he recognized John as a family friend and extended his hand to shake hands.
Davis testified that John responded by assuming a fighting stance. After the two
exchanged harsh words, John poked Davis in the chest with his skateboard and then hit
Davis in the lip with the skateboard.
Davis was wearing a backpack that contained tent poles, some food, and a knife.
Davis testified that the knife fell out of the backpack when John was attacking him.
Davis testified that he retrieved the knife off the ground and immediately returned it to

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his backpack. He testified that the knife was in his hands only for the "second or two" it
took to put it back in his backpack.2
DISCUSSION
I. THE COURT DID NOT ERR BY FAILING TO INSTRUCT ON
SIMPLE ASSAULT AS A LESSER INCLUDED OFFENSE
Simple assault is "an unlawful attempt, coupled with a present ability, to commit a
violent injury on the person of another." (§ 240.) Davis contends that the trial court had
a sua sponte duty to instruct on simple assault as a lesser included offense of assault with
a deadly weapon.
However, a trial court must instruct on a lesser included offense only if there is
substantial evidence that the defendant is guilty only of the lesser. (People v. Prince
(2007) 40 Cal.4th 1179, 1265.) The court has no such obligation "when there is no
evidence that the offense is less than that charged." (People v. Breverman (1998) 19
Cal.4th 142, 154, superseded on another ground by amendment of § 189 not relevant
here.)
Here, the court instructed with CALCRIM No. 875 on assault with a deadly
weapon or force likely to produce great bodily injury as follows:
"The defendant is charged in Count 1 with assault with a deadly
weapon other than a firearm in violation of Penal Code section 245.
"To prove that the defendant is guilty of this crime, the People must
prove that:
2 On cross-examination, Davis was impeached with four prior felony convictions.

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"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;
"AND
"5. The defendant did not act in self-defense.
"Someone commits an act willfully when he or she does it willingly
or on purpose. It is not required that he or she intend to break the
law, hurt someone else, or gain any advantage.
"The People are not required to prove that the defendant actually
touched someone.
"The People are not required to prove that the defendant actually
intended to use force against someone when he acted.
"No one needs to actually have been injured by defendant's act. But
if someone was injured, you may consider that fact, along with all
the other evidence, in deciding whether the defendant committed an
assault.
"A deadly weapon other than a firearm is 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.
"Great bodily injury means significant or substantial physical injury.
It is an injury that is greater than minor or moderate harm."
The court had no obligation to instruct on simple assault because the evidence
established that if Davis was guilty at all, it was for aggravated assault and not a lesser

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crime. Davis denied committing any crime; he testified that John assaulted him. In
closing argument, Davis's attorney argued that John "was the one who got physical, and
[John] is the one who assaulted [Davis], not the other way around." Accordingly, if the
jury believed Davis's testimony, it could not have convicted him of simple assault
because the jury would have believed that he did not do an act that by its nature would
directly and probably result in the application of force to John. "Generally, when a
defendant completely denies complicity in the charged crime, there is no error in failing
to instruct on a lesser included offense." (People v. Gutierrez (2003) 112 Cal.App.4th
704, 709.) Davis provides no reason why we should ignore this rule here.
Disagreeing with this result, Davis contends his testimony that the knife fell out of
his backpack "is substantial evidence from which the jury could have concluded that he
committed assault . . . ." This argument fails because an assault occurs when a person
willfully commits an act that by its nature would probably and directly result in the
application of force on another person, and the person committing that act is aware of
facts that would lead a reasonable person to realize that as a direct, natural and probable
result of this act, physical force would be applied to another person. (People v. Navarro
(2013) 212 Cal.App.4th 1336, 1345-1346.) Picking a knife up off the ground and
immediately placing the knife in a backpack is not assault because these acts would not
probably and directly result in the application of force to another person.
II. THE INSTRUCTIONAL ERROR IS HARMLESS
To convict Davis of assault with a deadly weapon and to make true findings on the
deadly weapon enhancements, the jury had to determine whether the knife Davis used

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was a deadly weapon. The court instructed the jury with CALCRIM No. 875, which
defines "deadly weapon" as follows:
"A deadly weapon other than a firearm is 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."
On the enhancements, the court instructed with CALCRIM No. 3145, which
similarly defines a deadly weapon, stating:
"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 it is capable of causing and likely to cause death or great
bodily injury."
Colloquially, a kitchen knife with a seven-inch blade might reasonably be
considered to be an "inherently" deadly weapon. However, the legal definition is more
nuanced. Whether an object is an inherently deadly weapon "is a term of art describing
objects that are deadly or dangerous in '"the ordinary use for which they are designed,"'
that is, weapons that have no practical nondeadly purpose." (Stutelberg, supra, 29
Cal.App.5th at pp. 318-319.) Thus, dirks and blackjacks are inherently deadly weapons
because their ordinary purpose is to injure people; they are "deadly per se." (People v.
Brown (2012) 210 Cal.App.4th 1, 6 (Brown).)
"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, 1029.)

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The ordinary purpose of a kitchen knife is to cut food, not harm people.
Accordingly, an ordinary kitchen knife such as the one involved in this case is not an
inherently deadly weapon because it is not dangerous to others in the use for which it is
designed. (People v. McCoy (1944) 25 Cal.2d 177, 188.)
However, a kitchen knife, while not inherently deadly, may be a deadly weapon
within the meaning of section 245, subdivision (a)(1) when used in a manner capable of
causing and likely to cause death or great bodily injury. (Brown, supra, 210 Cal.App.4th
at p. 7.) Thus, for the jury to properly find that Davis used a deadly weapon, it would
have needed to solely rely on the second definition in CALCRIM Nos. 875 and 3145—
that Davis used the knife in a way capable of causing and likely to cause death or great
bodily injury.
Davis contends the court erred by telling the jury there were two alternate theories
for finding him guilty of assault with a deadly weapon and for finding the personal use
enhancement true. One theory was legally correct—that the knife was used in such a way
that it was capable of causing and likely to cause death or great bodily injury. However,
Davis asserts that the other theory—that the knife was inherently deadly—was legally
incorrect.
On this narrow point, the Attorney General concedes that the knife Davis used is
not an inherently dangerous weapon and, therefore, the trial court erred in instructing the
jury that it could convict him of assault with a deadly weapon and find the deadly weapon
enhancements to be true on a theory that the knife was inherently deadly.

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The parties, however, disagree on whether the error requires reversal. Citing
People v. Aledamat (2018) 20 Cal.App.5th 1149, review granted July 5, 2018, S248105
(Aledamat), Davis contends the judgment must be reversed because it is impossible to
establish on this record that the jury actually relied on the legally correct theory.3
In Aledamat, supra, 20 Cal.App.5th 1149, the defendant was charged with assault
with a deadly weapon after he threatened to kill the victim with the exposed blade of a
box cutter. The trial court instructed on the definition of a deadly weapon using
CALCRIM No. 875. (at pp. 1152-1153.) The jury found the defendant guilty as charged
and found true the deadly weapon allegation. (Id. at p. 1152.) On appeal, Division Two
of the Second District reversed the assault conviction and the deadly weapon
enhancement, holding that the trial court erred by instructing the jury that it could find the
box cutter to be inherently deadly. (Id. at pp. 1151, 1153, 1155.) In determining whether
that error was prejudicial, the Aledamat court held that absent proof that the jury "has
'actually' relied upon the valid theory [citations], . . . the conviction must be overturned—
even if the evidence supporting the valid theory was overwhelming." (Id. at p. 1153,
italics omitted.)
The Attorney General contends that Aledamat, supra, 20 Cal.App.5th 1149 was
wrongly decided and should not be followed. The more apt case, the Attorney General
asserts, is Brown, supra, 210 Cal.App.4th 1, which involved a BB gun—a weapon that,
3 The California Supreme Court granted review in Aledamat to address the
appropriate standard for evaluating prejudice resulting from legal error. (Stutelberg,
supra, 29 Cal.App.5th at p. 319, fn. 2.)

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like a kitchen knife, is not inherently deadly. In Brown, the Court of Appeal held that by
instructing with a former version of CALCRIM No. 875 the trial court erroneously
permitted the jury to convict the defendant of assault with a deadly weapon on the basis
that the BB gun he fired was "inherently dangerous," a legally incorrect theory.4 (Brown,
at pp. 6, 8-9.) The defendant in Brown argued that because the record did not
demonstrate whether the jury relied on a legally correct theory, his conviction must be
reversed. (Id. at p. 12.) However, the Court of Appeal rejected that argument and instead
held that even in cases involving a legally inadequate theory the Chapman5 harmless-
beyond-a-reasonable-doubt standard of prejudice applied. (Brown, at pp. 12-13.) Based
on the "ample evidence at trial [that] Brown used the BB gun in a manner capable of
inflicting and likely to inflict great bodily injury" and the arguments of counsel
emphasizing that theory, the Court of Appeal in Brown held that the instructional error
was harmless. (Id. at p. 13.)
Recently, in Stutelberg, supra, 29 Cal.App.5th 314, this court considered these
same issues.6 There, the defendant jabbed a box cutter at two victims, lacerating one of
them but not injuring the other. (Id. at pp. 315-316.) The jury convicted defendant of
4 At the time, CALCRIM No. 875 provided that a deadly weapon is "any object,
instrument, or weapon that is 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."
(Brown, supra, 210 Cal.App.4th at p. 8, italics added.)
5 Chapman v. California (1967) 386 U.S. 18.
6 Because Stutelberg, supra, 29 Cal.App.5th 314 was decided after the parties filed
their principal briefs, we requested and have reviewed the parties' supplemental briefs on
Stutelberg.

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assault with a deadly weapon as to the uninjured victim and mayhem as to the injured
one. (Id. at p. 317.) As to both victims, the jury found true an enhancement for personal
use of a deadly or dangerous weapon. (Ibid.) At trial, the court defined "deadly weapon"
by giving CALCRIM Nos. 875 and 3145—the same instructions given here. (Ibid.)
On appeal, defendant asserted that because a box cutter is not an inherently deadly
weapon, the inclusion of language in CALCRIM Nos. 875 and 3145 regarding an
"inherently deadly weapon" was error. For the jury to properly find that defendant used a
deadly weapon, it would have needed to rely on the theory that he used the box cutter in a
way capable of causing and likely to cause death or great bodily injury. (Stutelberg,
supra, 29 Cal.App.5th at p. 317.) Relying on Aledamat, supra, 20 Cal.App.5th 1149,
defendant asserted (1) this type of error was legal as opposed to factual error; and (2) as
such, reversal was required absent an affirmative showing that no juror relied on the
invalid legal theory. (Stutelberg, at p. 320.)
In Stutelberg, supra, 29 Cal.App.5th 314 we agreed that the error was properly
characterized as legal rather than factual error. However, disagreeing with Aledamat,
supra, 20 Cal.App.5th 1149, and instead relying on People v. Merritt (2017) 2 Cal.5th
819 (Merritt), In re Martinez (2017) 3 Cal.5th 1216 (Martinez), and Neder v. United
States (1999) 527 U.S. 1 (Neder), we held that the "time-tested" "'harmless beyond a
reasonable doubt' framework is the proper standard to apply" in such a case. (Stutelberg,
at p. 320.) We noted there was compelling evidence that the defendant stabbed at the
victim's head, and thus used the weapon "'in such a way that it is capable of causing and
likely to cause death or great bodily injury'" (Stutelberg, supra, 29 Cal.App.5th at p.

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322)—a proper definition in CALCRIM Nos. 875 and 3145. We also noted that in
closing argument, the prosecutor did not expressly refer to the "'inherently deadly
weapon' theory'" nor otherwise invite the jury to classify the box cutter as inherently
deadly. (Ibid.) Rather, the prosecutor discussed the defendant's use of the weapon to
"'swipe'' and 'slash open'" the victims in a manner likely to cause death or great bodily
injury. (Ibid.) We concluded the error was harmless beyond a reasonable doubt as to the
injured victim because "[h]ad the jury been provided only with the 'deadly or dangerous
as used' theory and not the inapplicable 'inherently deadly weapon' theory, there is no
reasonable probability it would have rejected the deadly weapon enhancement . . . ."
(Ibid.)
Davis concedes that Stutelberg is "very similar" to his case. However, on several
different grounds, he asserts that Stutelberg was wrongly decided.
First, Davis contends that Stutelberg's reliance on Neder, supra, 527 U.S. 1 and
Merritt, supra, 2 Cal.5th 819 is "misplaced." Specifically, Davis notes that Neder and
Merritt are "omitted elements" cases. In Neder, the trial court "erred in refusing to
submit the issue of materiality to the jury with respect to those charges involving tax
fraud." (Neder, at p. 4.) The United States Supreme Court held that Chapman applies to
such error. (Neder, at p. 4.) Likewise in Merritt, a jury convicted the defendant of
robbery; however, the court failed to instruct the jury on the elements of robbery. The
California Supreme Court applied Chapman in determining if the error was prejudicial.
(Merritt, at p. 831.)

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Davis also stresses that in both Neder, supra, 527 U.S. 1 and in Merritt, supra, 2
Cal.5th 819, the omitted element was uncontested. In Neder, the government introduced
evidence that the defendant failed to report over $5 million in income. (Neder, at p. 16.)
That evidence of materiality was "so overwhelming" the defendant did not argue that his
false statements of income could be found immaterial. (Ibid.) Similarly, in Merritt the
defendant conceded that a robbery occurred. His defense was that he was not the robber.
(Merritt, at p. 822.)
From these observations, Davis extrapolates that Chapman review is appropriate
"only in those cases where the element removed is uncontested but not in cases where
there is any dispute as to the evidentiary support for the omitted element." (Italics
added.)
Davis's argument fails because it is a faulty generalization. The Chapman
standard for assessing the prejudicial effect of error is not limited to uncontested omitted
element cases. Pertinent here, the California Supreme Court in Martinez, supra, 3
Cal.5th 1216 applied Chapman in assessing the prejudicial effect of an erroneous jury
instruction that permitted the jury to consider both a legally valid and invalid theory. The
Martinez court held, "An instruction on an invalid theory may be found harmless when
'other aspects of the verdict or the evidence leave no reasonable doubt that the jury made
the findings necessary' under a legally valid theory." (Martinez, at p. 1226.)
Moreover, Davis's argument erroneously conflates (1) the standard for determining
whether error is prejudicial (i.e., Chapman), with (2) the evidence and litigation facts a
court applies to that standard in determining whether reversal is required. To evaluate

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prejudice under Chapman, a court reviews the entire record, including the evidence,
instructions, counsels' arguments, any jury questions during deliberations, and the entire
verdict. (Merritt, supra, 2 Cal.5th at pp. 831-832.) Thus, contrary to Davis's contention,
whether a defendant contests or instead concedes the existence of a missing element does
not affect whether Chapman applies, but rather how courts apply Chapman in an omitted
element case.
In Stutelberg, we quoted from Martinez, supra, 3 Cal.5th at page 1226, stating:
"The [California] Supreme Court likewise recently held that instructing on an invalid
legal theory may be harmless when '"other aspects of the verdict or the evidence leave no
reasonable doubt that the jury made findings necessary"' to convict under a different,
valid legal theory." (Stutelberg, supra, 29 Cal.App.5th at p. 320.) Davis contends this
quotation "does not account adequately for the standard of prejudice which Martinez
found applicable." Davis asserts that in Martinez, the California Supreme Court applied
the standard as stated in People v. Chiu (2014) 59 Cal.4th 155, 167—which requires "a
showing 'beyond a reasonable doubt that the jury based its verdict on the legally valid
theory.'"
We fail to discern any meaningful difference between the two formulations. The
phrase "other aspects of the verdict or the evidence" in Stutelberg is simply a more
detailed statement of the terminology Davis prefers—"a showing." The phrase "other
aspects . . . leave no reasonable doubt" is equivalent to "a showing 'beyond a reasonable
doubt.'"

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Last, Davis contends that as a matter of policy, Aledamat, supra, 20 Cal.App.5th
1149, which requires reversal absent an affirmative showing that no juror relied on the
invalid legal theory, is the better rule. Davis asserts that when jurors have been given the
option of relying on a legally inadequate theory, there is no basis for believing their
experience or intelligence will preclude them from convicting on that invalid theory.
However, the California Supreme Court has recently considered and implicitly
rejected this same argument. In Martinez, supra, 3 Cal.5th 1216, the court recognized
that when "'"jurors have been left the option of relying upon a legally inadequate theory,
there is no reason to think that their own intelligence and expertise will save them from
that error."'" (Id. at p. 1224.) Nevertheless, the court applied Chapman, stating that the
presumption of error in such cases "can be rebutted by showing 'beyond a reasonable
doubt that the jury based its verdict on the legally valid theory.'" (Ibid.; see also People
v. Jackson (2018) 26 Cal.App.5th 371, 379 & fn. 8 [citing Martinez and holding, "We
disagree with any suggestion that a finding of harmlessness requires affirmative proof of
the jury's reliance on a legally valid theory."].)
Having determined that Stutelberg, supra, 29 Cal.App.5th 314 was correctly
decided, that case compels the same result here. John, Jessica, and Jason testified that
Davis charged after John aggressively, stabbing at him with the knife and getting within
striking distance. Jason testified that Davis was using the knife "in a stabbing motion,"
thrusting the knife at John and saying "I'm going to get you," as Davis got within an arm's
length of John. Thus, Davis was using the knife "in such a way that it is capable of
causing and likely to cause death or great bodily injury." (CALCRIM Nos. 875, 3145.)

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Davis disagrees, asserting that the People "cannot prove beyond a reasonable
doubt that the court's error is harmless" because "the record is equivocal on the use of the
knife." This argument, however, distorts the record. The victim and both independent
witnesses unequivocally testified that Davis aggressively charged after John with the
knife and came within striking distance. It is true, as Davis points out, that John testified
Davis was three to five feet away, whereas Jessica placed Davis about a foot away, and
Jason testified that Davis was an arm's length away. But these minor variances in
estimating distances during the assault are insignificant. The critical point is that every
witness (other than Davis) testified that Davis chased John with a large knife and got
close enough to stab him.
The only contrary evidence was Davis's own testimony that John attacked him and
in the melee the knife accidentally fell out of his backpack. But the jury was entitled to—
and did—reject this story as completely lacking credibility, returning guilty verdicts after
just 43 minutes of deliberations.
The prosecutor's closing argument also indicates that the error was harmless
beyond a reasonable doubt. The prosecutor emphasized the manner in which Davis used
the knife—at one point arguing that Davis "was chasing [John] with that knife,
aggressively advancing on him with it out in front of him, moving it back and forth in
front of him as if to stab [John]." Perhaps more importantly, referring the jury to the
"definitions for a deadly weapon", the prosecutor alluded only to the correct definition,
stating, "Now we're at definitions for a deadly weapon. In this case, it's not a huge issue

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because of course the weapon was a very large knife obviously capable of inflicting
significant or substantial physical injury . . . ."7
Had the jury been provided only with the "deadly or dangerous as used" theory
and not the inapplicable "inherently deadly weapon" theory, there is no reasonable
probability that it would have acquitted on count 1 or rejected the deadly weapon
enhancement on both counts. Accordingly, the instructional error was harmless beyond a
reasonable doubt. (Stutelberg, supra, 29 Cal.App.5th at p. 322.)
DISPOSITION
The judgment is affirmed.
NARES, Acting P. J.
WE CONCUR:
O'ROURKE, J.
DATO, J.
7 Davis concedes that the prosecutor's closing argument "alluded to the correct
definition" of deadly weapon, but contends that counsel's arguments are "no substitute for
instructions from the court." However, counsel was not purporting to substitute his view
of the law for a jury instruction. Counsel directed the jury to evaluate the evidence in
light of the correct and applicable law, rather than the incorrect and inapplicable
inherently deadly theory.

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