Opinion
A166217
03-21-2024
THE PEOPLE, Plaintiff and Respondent, v. JONATHAN MATTHEW CRUDALE, Defendant and Appellant.
NOT TO BE PUBLISHED
(Contra Costa County Super. Ct. No. 05002017010)
RICHMAN, ACTING P. J.
In January of 2020, defendant Jonathan Crudale robbed a SuperCuts in Alamo while displaying a box cutter. A jury found him guilty of second degree robbery and found true the enhancement allegation that he used a deadly or dangerous weapon during the commission of the offense, and the trial court suspended imposition of sentence and placed him on two years formal probation. Relying on our Supreme Court's decision in People v. Aledamat (2019) 8 Cal.5th 1 (Aledamat), Crudale argues that the trial court erred in instructing the jury it could find that the box cutter was an inherently deadly or dangerous weapon. We agree, and accordingly reverse the true finding on the deadly weapon enhancement.
BACKGROUND
On November 24, 2020, the Contra Costa District Attorney filed a felony information charging Crudale with second degree robbery (Pen. Code, § 211) on January 13, 2020, and further alleging that Crudale personally used a deadly and dangerous weapon-a box cutter-in the commission of the offense (§ 12022, subd. (b)(1)).
Further undesignated statutory references are to the Penal Code.
Trial took place over approximately five days in late July and early August of 2022.
Tuan Ngo testified that in January of 2020, he was an employee of SuperCuts in Alamo. Around 8:00 p.m. on January 13, 2020, Crudale came into the Supercuts "asking for money and holding a knife." Ngo described the knife as a red "box cutter for cartons," with the blade inside and not visible. Ngo was familiar with the type of box cutter that Crudale was carrying, and knew there was a button on the side that would release the blade. When Crudale entered the store, he was holding the box cutter in his left hand. Crudale approached the counter in front of the cash register and placed his hands on the counter, with the box cutter in his hand. After Crudale repeated "Give me the money" several times in a loud voice, Ngo "became scared," so he gave Crudale $140 from the cash register. Ngo was "scared that [Crudale] would do some harm" because he "was holding the knife." After obtaining the money, Crudale left through the front door. Crudale had the box cutter in his hand the entire time he was inside the store.
Deputy Scott Reed and Deputy Jesus Topete of the Contra Costa County Sherriff's Office also testified for the prosecution regarding the investigation of the robbery and the circumstances of Crudale's arrest.
After the close of the evidence, the trial court gave the following instruction on the deadly weapon enhancement, based on CALCRIM No. 3145:
"If you find the defendant guilty of the crime charged in the Information, or the lesser crime of attempted robbery, you must then decide whether the People have proved the additional allegation that the defendant personally used a deadly or dangerous weapon during the commission of that crime or any lesser 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 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, where the person who possessed the object was going, and any other evidence that indicates whether the object would be used for a dangerous, rather than a harmless, purpose.
"Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.
"Someone personally uses a deadly or dangerous weapon if he intentionally does any of the following: displays the weapon in a menacing manner.
"The People have the burden of proving this allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved."
The jury began deliberating on the afternoon of August 1. About an hour after deliberations began, the jury asked the following question: "Regarding Penal Code 211: Element #5: Does the prosecution have to prove the defendant used force or fear or just that the victim perceived force or fear?" The court responded, "Please refer to instruction 1600 on robbery." Less than an hour later, the jury sent a note stating, "We are unable to agree 11-1," to which the court responded, "Please return to continue deliberations on 8/2/22." At 9:50 a.m. the next day, the jury asked a third question: "Are we able to see police report from incident on the 13th or get transcript from Officer Scott Reed's testimony? We are trying to determine use of box cutter." The court responded: "The police report is not in evidence. Officer Scott Reed did not testify about the use of the box cutter." At 10:35 a.m., the jury asked: "We would like to see transcript of Topete's testimony specifically regarding the box cutter please. We are trying to clarify if box cutter was used." The court responded: "Deputy Topete did not testify about the use of the box cutter." Shortly thereafter, the jury reached its verdict, finding Crudale guilty of robbery and finding true the deadly and dangerous weapon enhancement allegation.
The prosecution's sentencing recommendation noted that the maximum possible sentence was six years, consisting of the upper term of five years for the robbery conviction plus a consecutive one-year term on the deadly weapon enhancement (§ 213, subd. (a)(2); § 12022, subd. (b)(1)); however, the prosecution recommended a sentence of one year in county jail and two years formal probation. The trial court suspended imposition of sentence and placed Crudale on two years formal probation, with 180 days to be served on electronic home detention.
Crudale filed a notice of appeal.
DISCUSSION
Crudale argues that the trial court's instruction on the deadly or dangerous weapon enhancement was erroneous under Aledamat, supra, 8 Cal.5th 1, because a box cutter is not an inherently deadly or dangerous weapon, and that the jury's true finding on the enhancement is not supported by substantial evidence.
In Aledamat, supra, 8 Cal.5th 1, the 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." '" (Id. at p. 4.) The defendant was convicted by a jury of assault with a deadly weapon (§ 245, subd. (a)(1)), and making a criminal threat (§ 422). (Aledamat, supra, 8 Cal.5th at pp. 4-5.) As to the threat charge, the jury found true the allegation that the defendant personally used a deadly or dangerous weapon (§ 12022, subd. (b)(1).) (Aledamat, supra, 8 Cal.5th at pp. 4-5.)
In Aledamat, the jury instructions for the assault charge 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.)" (Aledamat, supra, 8 Cal.5th at p. 4.) And with respect to the dangerous or deadly weapon enhancement, the court gave an instruction almost identical to the one in this case, telling the jury 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 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." (Aledamat, supra, 8 Cal.5th at pp. 4-5.)
Aledamat concluded that "[t]he instruction accurately stated the law," but "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 ....) 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; accord, People v. Perez (2018) 4 Cal.5th 1055, 1065.)
"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. ([People v.] Aledamat [(2018)] 20 Cal.App.5th [1149,] 1153; see People v. Stutelberg (2018) 29 Cal.App.5th 314, 317 (Stutelberg) [also involving assault with a box cutter].)
"The weapon enhancement is for use of a 'deadly or dangerous' weapon (§ 12022, subd. (b)(1)), rather than specifically a deadly weapon, as under section 245, subdivision (a)(1). But the same rule appears to apply, as indicated by McCoy's statement that 'a knife is not an inherently dangerous or deadly instrument as a matter of law.' (People v. McCoy, supra, 25 Cal.2d at p. 188; [citations].) Accordingly, a box cutter is neither an inherently deadly nor an inherently deadly or dangerous weapon. For simplicity, we will generally refer to this case as involving a deadly weapon."
"Accordingly, . . . 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." (Aledamat, supra, 8 Cal.5th at pp. 6-7.)
Aledamat went on to hold that, when a legally incorrect jury instruction on an alternative theory of guilt is at issue, "[t]he 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." (Aledamat, supra, 8 Cal.5th at p. 13 [applying Chapman v. California (1967) 386 U.S. 18].) As our Supreme Court has more recently explained this test, the "analysis requires a court to rigorously review the evidence to determine whether any rational juror who found the defendant guilty based on an invalid theory, and made the factual findings reflected in the jury's verdict, would necessarily have found the defendant guilty based on a valid theory as well." (In re Lopez (2023) 14 Cal.5th 562, 568.)
Aledamat then applied the test to the facts of that case, concluding that the error there was harmless beyond a reasonable doubt based on "[a] number of circumstances," going on to detail those circumstances for several pages. (Aledamat, supra, 8 Cal.5th at pp. 13-15.) First, the instructions told the jury that" '[i]n deciding whether an object is a deadly weapon, consider all of the surrounding circumstances,'" suggesting that "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," making it "unlikely the jury would simply view the box cutter as inherently deadly without considering the circumstances, including how defendant used it." (Id. at p. 14.) Second, the arguments of counsel never "suggested to the jury that there were two separate ways it could decide whether the box cutter was a deadly weapon," and defense counsel could well have believed it was pointless to argue that even if the defendant did assault the victim with the box cutter, it was not a deadly weapon, especially in light of the defendant's statement" 'I'll kill you.'" (Ibid.) Third, the jury's finding that the defendant was guilty of assault with a deadly weapon required several findings, including that "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," meaning that even if the jury "applied its common understanding to find the box cutter deadly because it is sharp and used for cutting," they would necessarily have also found that "defendant used the box cutter in a way that is capable of causing or likely to cause death or great bodily injury." (Id. at p. 15.)
The instruction on the deadly weapon enhancement given here was essentially identical to the instruction given in Aledamat, and was error for the reasons given in that case. The Attorney General does not argue otherwise. Here, however, "after examining the entire cause, including the evidence, and considering all relevant circumstances" (Aledamat, supra, 8 Cal.5th at p. 13), we cannot conclude that the instructional error was harmless beyond a reasonable doubt.
While it is true the instruction given here, as in Aledamat, told the jury that" '[i]n deciding whether an object is a deadly weapon, consider all the surrounding circumstances,'" which "suggested 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" (Aledamat, supra, 8 Cal.5th at p. 14), the surrounding circumstances here are markedly different from those in Aledamat.
In Aledamat, the 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.'" (Aledamat, supra, 8 Cal.5th at p. 4.) The Supreme Court held that, even if the jury applied a colloquial understanding of" 'inherently deadly,'" it would have found "the box cutter deadly in the colloquial sense of the term-i.e., readily capable of inflicting deadly harm-and that defendant used it as a weapon." (Id. at p. 15.) Here, by contrast, Ngo testified that Crudale never extended the box cutter's blade, and he did not thrust it at anyone, nor did he make any explicit threats. The evidence thus permitted a rational juror to find that the box cutter was" 'inherently deadly'" because it is "sharp and used for cutting," without also finding that Crudale used it as a weapon or in a manner likely to produce great bodily injury. (See ibid.)
The arguments of counsel support this conclusion. (See People v. Powell (2021) 63 Cal.App.5th 689, 715 [reviewing courts also "look to the prosecutor's argument as a relevant circumstance in determining whether instructional error is harmless"].) Although the prosecutor initially told the jury that a deadly or dangerous weapon was "just one that's capable or likely to cause great bodily injury," she also told the jury not to "get bogged down in this, like, longer-semi-longer definition of deadly or dangerous weapon," and to "use your common sense, Ladies and Gentlemen. A box cutter with that type of blade in it, that razor blade, is a deadly, deadly and dangerous weapon." Thus, not only did the prosecutor invite the jury to rely on an incorrect theory to find that the box cutter was a deadly or dangerous weapon, she made incorrect statements of law. As Aledamat explained, a box cutter is not an inherently deadly or dangerous weapon. (Aledamat, supra, 8 Cal.5th at p. 6.)
Aledamat is distinguishable in another important way. There, the jury also convicted the defendant of assault with a deadly weapon, which required them to find that "(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 pp. 4, 15.) The court found that no reasonable jury could have made these findings without failing to also find that the defendant used the box cutter in a way that is capable of causing or likely to cause death or great bodily injury. But the jury here did not make any similar findings that would mean they also found the box cutter was used in such a way that it was likely to cause great bodily injury.
Moreover, the jury's questions suggest they may have relied on the incorrect theory and found that the box cutter was an inherently deadly or dangerous weapon. The jury's first question asked whether the prosecution had to "prove the defendant used force or fear or just that the victim perceived force or fear," suggesting they may have been prepared to find that Ngo was afraid of the box cutter even though Crudale did not use it in a manner likely to cause great bodily injury. The jury's third question expressly told the court and counsel that "[w]e are trying to determine use of box cutter," and the fourth question explained that "[w]e are trying to clarify if the box cutter was used," suggesting that the jury may have been assuming that the box cutter was inherently deadly or dangerous and focused on whether it was used at all, rather than considering whether Crudale used the box cutter in a way such that it was capable of causing and likely to cause death or great bodily injury.
The Attorney General argues no reasonable jury could find both that Crudale personally used a deadly or dangerous weapon and that he used force or fear to take the property without also finding he used the box cutter in such a way that it was capable of causing or likely to cause great bodily injury. But that is not true. The trial court instructed the jury that personally using a deadly or dangerous weapon meant "intentionally . . . display[ing] the weapon in a menacing manner." Thus, the jury's findings meant they concluded that Crudale displayed the box cutter in a menacing manner and that he used force or fear to obtain the property, not that he was necessarily using the box cutter in a way that it was capable of causing or likely to cause death or great bodily injury. In sum, considering the evidence and relevant circumstances (Aledamat, supra, 8 Cal.5th at p. 13), we cannot conclude the trial court's instructional error on the deadly or dangerous weapon allegation was harmless beyond a reasonable doubt.
Because we conclude that the weapon enhancement must be reversed, we need not reach Crudale's additional argument that the jury's finding on that enhancement is not supported by substantial evidence.
DISPOSITION
The true finding on the personal use of a deadly weapon enhancement is reversed. In all other respects, the judgment is affirmed.
We concur: Miller, J., Mayfield, J. [*]
[*] Superior Court of Mendocino County, Judge Cindee Mayfield, sitting as assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.