Opinion
E071803
02-18-2020
THE PEOPLE, Plaintiff and Respondent, v. EDWIN GERARD FENTY, Defendant and Appellant.
Brett Harding Duxbury, 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, Daniel Rogers, Adrianne S. Denault and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. BAF1200565) OPINION APPEAL from the Superior Court of Riverside County. Bernard Schwartz, Judge. Affirmed. Brett Harding Duxbury, 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, Daniel Rogers, Adrianne S. Denault and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Edwin Gerard Fenty repeatedly stabbed Beverly Fenty, his wife of 39 years, in the chest. She bled to death as a result of the multiple stab wounds. Defendant was convicted of the premeditated, willful and deliberate first degree murder of Beverly (Pen. Code, § 187) and found to have used a deadly and dangerous weapon within the meaning of Penal Code section 12022, subdivision (b)(1). He was sentenced to the determinative term of one year for the weapons use enhancement, plus 25 years to life for first degree murder.
We refer to the victim by her first name because she shares a last name with defendant. No disrespect is intended.
Defendant contends on appeal that (1) the trial court improperly instructed the jury on the use of propensity evidence involving his prior acts of domestic violence committed against Beverly to decide between first and second degree murder; (2) the trial court erroneously responded to the jury's question during deliberations asking for additional instruction on the meaning of "premeditation"; and (3) the trial court erred in instructing the jury on the deadly weapon use enhancement.
FACTUAL HISTORY
A. STABBING ON AUGUST 27, 2012
At 1:12 a.m. on August 27, 2012, defendant, who lived on Avenue L in Calimesa, called 911 and was crying. He explained that his wife had just returned home after being gone for three or four months. He said, "And, she, she's threw a suitcase at me and it, and I took a knife and cut it up and then she threw my phone at me, ___ and there was a knife in my hand, and I killed her. I killed her. Uhh, gahh!!" The 911 operator asked if he had killed his wife, and he responded, "Yes, I killed her. She's dead. Please, send somebody, please." (All caps. omitted.) Defendant explained that it had happened just a few minutes prior and that there was no one else in the house. Defendant was able to explain the location of his residence, the type of clothing he was wearing, and his birthdate. Defendant told the operator that he did not mean to do it; he "got angry and this happened." He could not recall how many times he had stabbed her. The 911 dispatcher instructed defendant to set down his phone, and walk outside with his hands up.
Riverside County Deputy Sheriff Sean Hogan was working patrol in Calimesa on August 12, 2012, and responded to the 911 call shortly after 1:00 a.m. Defendant exited the residence and Deputy Hogan instructed defendant to put his hands up; defendant followed his directions.
Defendant was very upset. Defendant was handcuffed and searched and did not have any weapons on him. He had blood on his arm. He had a small abrasion on his leg.
Inside the residence, Beverly was found lying on the floor in the hallway; she was surrounded by a pool of blood. Beverly was not breathing. She had no pulse. A suitcase near Beverly appeared to have been cut or torn in several places. A broken cellular telephone was found in several pieces in different parts of the residence. There was no evidence in the residence that would indicate there was a struggle between defendant and Beverly prior to the stabbing. A large knife covered in Beverly's blood was found approximately four feet from Beverly's head. There was blood splatter on the walls.
An autopsy was performed. Beverly was 58 years old and five-feet, two-inches tall. She had five stab wounds to the center of her chest. One of the stab wounds went into her heart. She had a stab wound on her neck. She had a stab wound to her right arm that went from the inside of the arm through to the outside. She had a stab wound to her back left shoulder. Her left index finger had been almost completely cut off and was hanging by a piece of skin. Beverly did not have any drugs or alcohol in her system. The stab wound to her heart and to the neck would have caused her death. She would have died within two minutes.
B. EVENTS LEADING UP TO THE STABBING
Kione Gonzales was the daughter of defendant and Beverly. Her parents had been married for 39 years when Beverly was killed. In 2011, defendant and Beverly began having marital problems. Beverly left defendant and moved to New York to stay with her siblings. Defendant told Kione that Beverly left him because he had hit her during an argument.
Defendant called Gonzales and told her that he had taken a bunch of pills and was going to kill himself because Beverly left him. She called the police, and when she and the police arrived at his house, he was sitting on the bed with pills surrounding him. He was put on a psychiatric hold. After he was released, he continued to call Beverly begging her to come home. Beverly eventually returned home after about one month.
Beverly and defendant worked on their relationship throughout late 2011 and early 2012. Beverly told Gonzales that she was scared and felt like a prisoner in her own home. Defendant had a panic attack and was taken to the hospital. Beverly asked Gonzales to pick her up because she felt that this was her only chance to get away from defendant. Beverly went to a hotel for two weeks. Defendant came to Gonzales's house after he was released from the hospital looking for Beverly. He accused Gonzales of lying to him and keeping him and Beverly apart. He threatened to kill himself several times.
Beverly went to New York. Defendant tried to get Beverly back by telling Gonzales he had cancer and needed Beverly to take care of him, and claiming he won the lottery.
Defendant posted disparaging comments about Beverly on Facebook between May 2012 and August 2012. He posted, "AND PLEASE IF YOU DO COME BRING YOUR MINIMUM WAGE KITCHEN HELPER WITH YOU, ILL DECIMATE THAT MUTHA F . . . . . R." He also posted, "NEVER BE NASTY TO ME AGAIN, AND I DARE YOUR ASS TO COME OUT HERE FOR THE HOLIDAY SEASON . . . . . . SLAP !!!!!!!." He also posted, "DONT FU . . . K WITH ME AGAIN OR I'LL COME BACK ON HERE AND LAY SOME MORE OF YOUR SHIT BARE!" and "HOPEFULLY, YOU'LL NEVER TALK TO ME AGAIN, BUT IF YOU DID, WHAT WOULD U SAY? BLOWJOB $20 AROUND THE WORLD $40." He additionally posted about her leaving a stable home and all her belongings behind to live at her sister's house.
On August 14, 2012, Beverly decided to return to live with defendant. Defendant promised Gonzales he would not lay a hand on Beverly. Defendant called Gonzales just before Beverly's funeral. He told her she could keep the furniture in his residence. He never asked about Beverly's funeral nor did he apologize.
Tennille Zeiler was the daughter of defendant and Beverly. In early 2011, Beverly left defendant and went to New York to stay with her family. Beverly told Zeiler that defendant had hit her. Defendant admitted to Zeiler that he hit Beverly and indicated that he was sorry. Defendant constantly called Zeiler after Beverly left him asking where Beverly was; he was very upset.
Beverly returned to defendant in 2011; she and defendant seemed to be getting along. In May 2012, Beverly again left defendant and stayed with Zeiler. She expressed that she was afraid of him. Zeiler gave Beverly an undamaged suitcase to use and Beverly went to New York in May 2012. Zeiler did not expect her to ever come back. Defendant admitted to Zeiler that Beverly left again because he had hit her.
Zeiler talked to defendant between May and August 2012. In June 2012, defendant told Zeiler that he was going to get knives and kill all of Beverly's family members until he found her. Once he found her, he was going to kill her.
Beverly returned to live with defendant in August 2012. Zeiler spoke with defendant after Beverly moved back in and he was very happy. Defendant called Zeiler after Beverly died and asked her to bring him his glasses and his wallet, which were at his house. She told him she was not going back into the house where Beverly had been killed and that she was on her way to Beverly's funeral. Defendant said nothing about the funeral.
Walter Gaiter was Beverly's brother and lived in New York. He observed defendant and Beverly between 2008 and 2012. Defendant seemed to Gaiter to be controlling. When Beverly was not with defendant, he would constantly call her. Gaiter had heard defendant tell Beverly in late 2011 that he was going to make her family cry. Defendant also directly threatened Gaiter by telling him that when defendant saw Gaiter next defendant was going to kill him. When Gaiter did see defendant, he confronted him and defendant apologized.
Gaiter explained that defendant was like two people. He compared him to "Dr. Jekyll and Mr. Hyde." There were times that he was nice to the family and other times that he threatened everyone. Between 2011 and August 2012 he threatened to kill Beverly's family two or three times.
Janine Gaiter-Blue was Beverly's sister and lived in New York. Gaiter-Blue visited defendant and Beverly in California in 2011, and observed that defendant was very controlling. He always had to be with Beverly. In September 2011, she received a phone call from Beverly. Beverly immediately told her to call the police because defendant was chasing her with a knife and she needed help. She sounded scared. Beverly moved to New York after this incident. She moved back to California but returned to New York in May 2012 because defendant had hit her.
Defendant started calling Gaiter-Blue constantly after Beverly arrived in New York the second time. He threatened to kill himself because he could not live without Beverly. Defendant also told Gaiter-Blue in June 2012 that the next time that she saw Beverly, Beverly would be in a body bag. He also told her that he knew someone who owned a gun, and that person would come and "take all of us out."
Renee Hargro was another of Beverly's sisters and lived in New York. She had observed the relationship between defendant and Beverly during the years 2008 to 2012 and defendant was very controlling and jealous. Beverly came to stay with Hargro in New York in May 2012 because of problems she was having with defendant. Beverly was scared when she arrived. Defendant called Hargo approximately 10 times each day while Beverly was staying with her. He demanded to speak with Beverly. Defendant begged Beverly to return home. He threatened to hurt everyone in Beverly's family unless she came back to him. Hargro took Beverly to the airport on August 13, 2012, because Beverly told her she was flying to North Carolina to visit a friend; she went back to defendant instead.
C. DEFENSE
Dr. Woojin Lee was an emergency room doctor on duty on May 22, 2011, at a hospital in Riverside. He treated defendant, who had overdosed on medication. Defendant was transferred to a psychiatric hospital after the emergency room due to his suicide attempt.
Dr. Stoyan Rusev was a psychiatrist employed at a hospital where defendant was treated. He interviewed and treated defendant in 2013. He saw defendant for the first time on July 18, 2013. Dr. Rusev initially diagnosed defendant with major depressive disorder recurrent severe with psychotic features. Major depressive disorder included having reoccurring thoughts of death. Psychotic features included delusions or hallucinations.
In August and September 2013, he diagnosed defendant with schizoaffective disorder depressed type. Schizoaffective disorder involved psychotic episodes that were evidenced by a patient having hallucinations or delusions, and beliefs that were out of touch with reality. Schizoaffective disorder commonly first manifested in a person between the ages of 16 and 30; it was less common to begin after a person had reached the age of 40. Defendant was 63 years old when Dr. Rusev first treated him.
Dr. Rusev explained that schizoaffective disorder was not as severe as schizophrenia. A person may only suffer delusions and hallucinations for a short period of time. A person who suffers from schizoaffective disorder may be able to function in normal life but hear voices. Dr. Rusev had no information regarding defendant's mental health prior to or at the time of the stabbing incident. He had no way of knowing if defendant was suffering from a depressive or psychotic episode when he stabbed Beverly. A person with schizoaffective disorder could plan to do something and carry it out.
DISCUSSION
A. INSTRUCTION WITH CALCRIM NO. 852
Defendant claims that although the trial court properly admitted defendant's prior acts of domestic violence committed against Beverly, it improperly instructed the jury that it could consider such evidence as propensity evidence when considering the degree of the murder.
1. ADDITIONAL FACTUAL BACKGROUND
Prior to trial, defendant's counsel brought a motion in limine. Defendant's counsel argued in the motion and at the hearing that the prior incidents of domestic violence committed by defendant against Beverly were not corroborated and should be excluded. Further, the prior acts were more prejudicial than probative pursuant to Evidence Code section 352.
The trial court found the evidence clearly fell under Evidence Code section 1109. There was no doubt there were prior acts of domestic violence. The trial court found as to prejudice, "[I]t certainly is probative of the issues that we are here in trial on. It is not an undue consumption of time. It will just be a couple of questions asked to each of the witnesses. And I don't believe it will be confusing to the jury because [it] will be instructed appropriately with the appropriate instruction as it relates to how they are to take 1109 evidence."
When the parties were discussing the instructions, the trial court noted that it was going to give CALCRIM No. 852 to the jury as to the testimony that Beverly told family members that defendant had hit her prior to her death. Both parties agreed to the instruction.
The jury was instructed that for the crime of murder, the People had to prove defendant committed the murder with malice aforethought. It was additionally instructed with CALCRIM No. 852 as follows: "The People presented evidence that the defendant committed domestic violence that was not charged in this case. [¶] Domestic violence means abuse committed against an adult who is a spouse. [¶] Abuse means intentionally or recklessly causing or attempting to cause bodily injury or placing another person in reasonable fear of imminent serious bodily injury to himself or herself or someone else. [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant, in fact, committed the uncharged domestic violence. Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [¶] If the People have not met this burden of proof, you must disregard this evidence entirely. [¶] If you decide that the defendant committed the uncharged domestic violence, you may, but are not required to conclude from that evidence that the defendant was disposed or inclined to commit domestic violence and, based on that decision, also conclude that the defendant was likely to commit murder as charged here. If you conclude that the defendant committed the uncharged domestic violence, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of murder. The People must still prove the charge and the allegation beyond a reasonable doubt. [¶] Do not consider this evidence for any other purpose."
2. WAIVER
The People contend that since defendant did not object to CALCRIM No. 852 in the trial court, he has waived his claim on appeal. Generally, the failure to object to instructional error waives the claim on appeal. (People v. Ramos (2008) 163 Cal.App.4th 1082, 1087.) Here, defendant agreed with the instruction. As such, he has waived the claim that the instruction was erroneous.
3. INSTRUCTIONAL ERROR
Notwithstanding waiver, defendant's claim lacks merit. Evidence Code section 1109 provides in part, "In a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352." "CALCRIM No. 852 explains that if the jury finds the defendant committed the uncharged acts, it may but is not required to conclude defendant was disposed to or inclined to commit domestic violence and may also conclude that the defendant was likely to commit and did commit the crimes charged in [the] case." (People v. Reyes (2008) 160 Cal.App.4th 246, 252.)
Penal Code section 1259 provides that a court can review a claimed instructional error despite the defendant's failure to object if it "affect[s] the substantial rights of the defendant." (§ 1259.) In determining whether defendant's substantial rights were affected, a review of the merits is necessary.
Murdering a spouse is the " 'ultimate form of domestic violence.' " (People v. Brown (2011) 192 Cal.App.4th 1222, 1237.) As such, prior acts of domestic violence are appropriately admitted in a murder prosecution involving a spouse or girlfriend. (Ibid.)
In Brown, defendant was accused of murdering his girlfriend and the trial court allowed in evidence of prior acts of domestic violence committed by defendant against the victim and four former girlfriends. The defendant argued on appeal that "prior acts of domestic violence [we]re not relevant for any purpose in a murder prosecution because such acts do not permit an inference as to malice or any particular mental state." (People v. Brown, supra, 192 Cal.App.4th at pp. 1230-1231, 1237.) The appellate court rejected this argument finding, "[A] defendant's propensity to commit domestic violence against a former girlfriend who was murdered, and other prior girlfriends who were assaulted, is relevant and probative to an element of murder, 'namely, [defendant's] intentional doing of an act with malice aforethought that resulted in the victim's death.' [Citation.] A defendant's pattern of prior acts of domestic violence logically leads to the inference of malice aforethought and culpability for murder." (Ibid.)
Here, defendant contends the jury could not consider his prior acts of domestic violence committed against Beverly as propensity evidence in considering the degree of murder. He insists that Evidence Code section 1109 is directed at proving the commission of an offense, not the degree of an offense. However, defendant provides no direct authority to support his argument. As noted by the People, Evidence Code section 1109 does not contain restrictive language that it only applies as to whether a crime is committed. It merely provides that, "in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352." (Evid. Code, § 1109.) It does not restrict the use of this propensity evidence.
Additionally, the instruction given to the jury did not direct the jury to consider the propensity evidence when considering whether defendant committed first or second degree murder. The instruction only stated the domestic violence was relevant as to whether "the defendant was likely to commit murder as charged here." We do not interpret the instruction in the manner as proffered by defendant.
Moreover, even if we were to consider the jury was improperly instructed that it consider propensity evidence in addressing the degree of murder, and we were to consider that such error violated defendant's due process rights, such error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)
Initially, the instruction did not allow the jury to fix the degree of murder based solely on the prior domestic violence committed by defendant against Beverly. It instructed the jury, "[i]f you conclude that the defendant committed the uncharged domestic violence, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of murder. The People must still prove the charge and the allegation beyond a reasonable doubt." We presume the jurors followed the given instructions and considered all of the evidence in finding defendant guilty of first degree murder. (People v. Sanchez (2001) 26 Cal.4th 834, 852.)
Further, in arguing for first degree murder, the prosecutor noted that a majority of the stab wounds were directed to her chest, showing his intent. Defendant's counsel argued to the jury that defendant made a rash decision and killed Beverly in a frenzy when he was angry. Further, defendant could not make a premeditated and deliberate decision because of his mental illness.
However, the jury was advised that defendant had been threatening Beverly and Beverly's family for months prior to the murder. Beverly contacted Gaiter-Blue in September 2011 and told her that defendant was chasing her with a knife and to call the police. Defendant specifically told Zeiler that he was going to get some knives and kill all of Beverly's family, and once he found Beverly, he was going to kill her. He told Gaiter-Blue in June 2012, just two months prior to the murder, that the next time Gaiter-Blue saw Beverly, Beverly was going to be in a body bag. The jury reasonably could conclude that defendant was upset with Beverly, and deliberated and planned to murder her.
Additionally, the testimony regarding his mental illness did not establish that he was suffering from a psychotic episode at the time he stabbed Beverly five times in the chest. Dr. Rusev could not determine if defendant was suffering from a psychotic episode when he stabbed Beverly. Any conceivable error in instructing the jury with CALCRIM No. 852 was harmless beyond a reasonable doubt.
B. RESPONSE TO JURY QUESTION
Defendant contends the trial court improperly responded to the jury's inquiry during deliberations seeking further explanation of premeditation for first degree murder. The People insist defendant has waived the claim on appeal by acquiescing to the response by the trial court. We agree with the People.
At the conclusion of evidence, the jury was instructed on first degree murder in CALCRIM No. 521, in pertinent part, "The defendant is guilty of first-degree murder if the People have proved that he acted willfully, deliberately, and with premeditation. . . . The defendant acted with premeditation if he decided to kill before completing the acts that caused the death. [¶] The length of time the person spends considering whether to kill does not alone determine whether the killing is deliberate and premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. A decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premediated. On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time."
During deliberations, the jury sent a question to the trial court as follows: "Judge, please provide us with a more explicit, more detailed description and/or example of what 'PREMEDITATION' means, as detailed in the definition of 1st degree murder." The trial court responded, "Please refer to Calcrim #521 and the first paragraph of the instruction." Before the verdicts were presented in open court, the trial court put on the record that prior to responding to the jury question on premeditation, which was discussed off the record, that both counsel were contacted prior to the response and defense counsel consented to the response.
The People claim on appeal that defense counsel's consent to the response to the jury waives this claim on appeal. "Where, . . . , appellant consents to the trial court's response to jury questions during deliberations, any claim of error with respect thereto is waived." (People v. Bohana (2000) 84 Cal.App.4th 360, 373.) Defendant cannot claim error for the first time on appeal with respect to the trial court's response to the jury's question. (People v. Rogers (2006) 39 Cal.4th 826, 877 ["counsel's acquiescence in the trial court's response forfeits the claim of error on appeal"].)
Defendant insists the trial court had a sua sponte duty to appropriately respond to the jury's question by doing more than just referring the jury back to the original instruction. Penal Code section 1138 imposes on the trial court a mandatory "duty to clear up any instructional confusion expressed by the jury." (People v. Gonzalez (1990) 51 Cal.3d 1179, 1212, superseded by statute on other grounds as stated in In re Steele (2004) 32 Cal.4th 682.) However, "[t]his does not mean the court must always elaborate on the standard instructions. When the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information." (People v. Beardslee (1991) 53 Cal.3d 68, 97.)
Defendant cannot save his claims from forfeiture merely by invoking Penal Code section 1138 for the general proposition that the trial court has a sua sponte duty to respond to jury inquiries by providing supplemental instructions or clarification. Premeditation requires consideration beforehand. (People v. Jennings (2010) 50 Cal.4th 616, 645; People v. Mayfield (1997) 14 Cal.4th 668, 767.) CALCRIM No. 521, as given to the jury, provided that it must conclude, "[t]he defendant acted with premeditation if he decided to kill before completing the acts that caused the death." The instructions on first degree murder were accurate statements of law based upon the applicable CALCRIM model instruction. Since the instruction was a correct statement of the law, if defendant wanted further clarification, "he needed to request it." (People v. Marks (2003) 31 Cal.4th 197, 237.) Defendant's failure to request further clarification, "waives this claim." (Ibid.)
Moreover, we do not exercise our discretion to review the merits of the clam despite defendant's failure to object. Defendant has provided no indication as to what additional instruction should have been given to the jury. Defendant has waived any claim of error on appeal.
C. INSTRUCTIONAL ERROR ON DEADLY AND DANGEROUS WEAPON
Defendant claims the trial court erroneously instructed the jury that they could consider the knife used by defendant as either an inherently dangerous weapon or that it was used in such a way that it is capable of causing and likely to cause death or great bodily injury, in determining the truth of the weapons use enhancement. Defendant insists that since the jury was presented with a legally incorrect theory, because a knife is not an inherently dangerous weapon as a matter of law, and there is no indication that the jury relied on the legally valid theory, reversal is required. The People concede the instructional error but claims the error was harmless beyond a reasonable doubt.
In the California Supreme Court's recent case of People v. Aledamat (2019) 8 Cal.5th 1 (Aledamat), which was filed on August 26, 2019, the California Supreme Court found that the jury was wrongfully instructed that a box cutter was an inherently dangerous weapon. However, it found such error was harmless beyond reasonable doubt. Similarly here, the instructional error was harmless.
The People's respondent's brief was filed on October 2, 2019, and the appellant's reply brief was filed on October 22, 2019, but neither party recognized that Aledamat had been decided.
1. ERRONEOUS INSTRUCTION TO THE JURY
CALCRIM No. 3145 was given to the jury as follows: "If you find the defendant guilty of the crime charged in Count 1, first-degree murder, or the lesser crime of second-degree murder, you must then decide whether for each crime the People have proved the additional allegation that 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 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 of the surrounding circumstances, including when and where the object was possessed, and where the person who possessed the object was going, and whether the object was changed from its standard form, 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 or she intentionally does any of the following: [¶] Displays the weapon in a menacing manner, or [¶] 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 that this allegation has not been proved." (Italics added.)
It is well established that a knife is not an inherently dangerous or deadly weapon as a matter of law. (People v. McCoy (1944) 25 Cal.2d 177, 188.) As such, the portion of CALCRIM No. 3145, which advised the jurors that defendant had to do an act with a deadly weapon, and that deadly weapon, here the knife, was defined as any object, instrument, or weapon that is inherently deadly, was erroneous.
2. STANDARD OF REVIEW FROM ALEDAMAT
In Aledamat, the defendant used a box cutter, which is not an inherently dangerous weapon, by thrusting the blade at a man several times saying "I'll kill you." (Aledamat, supra, 8 Cal.5th at p. 4.) The defendant was charged with assault with a deadly weapon and a weapons use enhancement. The trial court instructed the jury with CALCRIM No. 875 as to the assault with a deadly weapon charge, that 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.' " (Ibid.) As for the weapons use enhancement, the jury was instructed with CALCRIM No. 3145, 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.' " (Aledamat, at pp. 4-5)
The appellate court found that the jury was erroneously instructed that a box cutter could be an inherently deadly weapon, and instruction with an inadequate legal theory warranted reversal because the evidence and instructions failed to establish that the verdict was not based on the inadequate theory. (Aledamat, supra, 8 Cal.5th at p. 5.) The California Supreme Court granted review to determine the proper standard of review for prejudice. (Ibid.)
Initially, the Aledamat court determined that the instructions were erroneous because a box cutter was not an inherently deadly weapon. (Aledamat, supra, 8 Cal.5th at p. 6.) It then concluded for prejudice that the "usual 'beyond a reasonable doubt' standard of review established in Chapman v. California (1967) 386 U.S. 18, 24 . . . 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." (Aledamat, at pp. 3, 13.)
In assessing prejudice, the Aledamat court found that the error in the instructions were harmless. Initially, it found it was unlikely the jury would actually only consider that the box cutter was an inherently deadly weapon, without considering how it was used, based on the entirety of the instructions, including that it was instructed in deciding for the weapons enhancement that it was to consider all of the surrounding circumstances. It was "unlikely the jury would simply view the box cutter as inherently deadly without considering the circumstances." (Aledamat, supra, 8 Cal.5th at p. 14.)
Further, the Aledamat court noted that neither counsel argued there were two separate ways to conclude the box cutter was a deadly weapon. (Aledamat, supra, 8 Cal.5th at p. 14.) Finally, the Aledamat court considered that the jury would have had to considered that " 'inherently deadly' " had to mean something and necessarily would have to consider that it was used as a deadly weapon." (Id. at p. 14.) For all these reasons, the Aledamat court found any error was harmless beyond a reasonable doubt." (Id. at p. 15)
3. PREJUDICE IN THIS CASE
Here, the jury was presented with a legally valid theory (the knife could be considered a deadly weapon because it was used in a manner that was capable of causing and likely to cause great bodily injury), and an invalid legal theory (the knife was an inherently deadly weapon). Using the standard from Aledamat, a review of the entire record demonstrates the instructional error here was "harmless beyond a reasonable doubt." (Aledamat, supra, 8 Cal.5th at p. 15.)
Here, the jury was presented with evidence that defendant stabbed Beverly in the arm and in the middle of her chest numerous times. He severed her finger. The prosecutor argued in his closing argument, "The allegation that he used a knife, no doubt there either. . . . He displayed it in a menacing manner when he hit her with it over and over again." There was no further argument. Defendant never disputed that the knife was being used or could be considered a deadly weapon. The prosecutor only argued that the knife was being used in a manner constituting a deadly weapon.
Further, as stated in Aledamat, in finding defendant guilty of the weapons use enhancement, "the jury had to consider all of the circumstances in deciding whether the object was a deadly weapon" whether it was inherently deadly or being used as a deadly weapon. (Aledamat, supra, 8 Cal.5th at p. 15.) In considering the circumstances of the use of the knife, defendant repeatedly stabbed Beverly in the chest, piercing her heart. The jury necessarily concluded that the circumstances surrounding defendant's use of the knife were necessarily that he used the knife in a deadly and dangerous manner, and did not just conclude that the knife was an inherently deadly weapon. The instructional error in this case was harmless beyond a reasonable doubt.
DISPOSITION
The judgment is affirmed in full.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: McKINSTER
Acting P. J. CODRINGTON
J.