        IN THE SUPREME COURT OF
               CALIFORNIA

                        THE PEOPLE,
                   Plaintiff and Respondent,
                               v.
                     YAZAN ALEDAMAT,
                   Defendant and Appellant.

                           S248105

           Second Appellate District, Division Two
                         B282911

              Los Angeles County Superior Court
                          BA451225



                       August 26, 2019

Justice Chin authored the opinion of the Court, in which Chief
Justice Cantil-Sakauye and Justices Corrigan and Kruger
concurred.


Justice Liu filed a concurring and dissenting opinion.


Justice Cuéllar filed a concurring and dissenting opinion, in
which Justice Groban concurred.
                   PEOPLE v. ALEDAMAT
                           S248105


               Opinion of the Court by Chin, J.


      Defendant Yazan Aledamat was charged with assault
with a deadly weapon, specifically a box cutter. A few objects
are inherently deadly weapons. Others, including a box cutter,
are deadly weapons only if used in a way that makes them
deadly weapons. Here, the trial court erroneously permitted the
jury to consider the box cutter an inherently deadly weapon. It
presented the jury with two possible theories of guilt: (1) that
the box cutter was inherently deadly, and (2) that defendant
used the box cutter in a deadly way. The first of these theories
was erroneous under the facts. A box cutter is, as a matter of
law, not inherently deadly. The second theory was correct. We
must decide what standard of review applies to this error.
      We conclude the usual “beyond a reasonable doubt”
standard of review established in Chapman v. California (1967)
386 U.S. 18, 24 (Chapman) 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. On this record,
applying this standard, we conclude beyond a reasonable doubt
that the error was harmless. Accordingly, we reverse the
judgment of the Court of Appeal, which found the error
prejudicial.




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                       PEOPLE v. ALEDAMAT
                   Opinion of the Court by Chin, J.


           I. FACTUAL AND PROCEDURAL HISTORY
       The Court of Appeal opinion summarized the facts. “In
October 2016, defendant approached a woman working at a
lunch truck parked in downtown Los Angeles. He told her that
he found her attractive and asked her for her phone number; she
declined, explaining that she was married with children. On
October 22, 2016, defendant approached the woman’s husband,
who owned the food truck. Defendant asked, ‘Where’s your
wife?’ Defendant then told the man that he wanted to ‘fuck’ his
wife because she was ‘very hot’ and ‘had a big ass and all of that.’
When the man turned away to remove his apron, defendant
pulled a box cutter out of his pocket and extended the blade;
from three or four feet away, defendant thrust the blade at the
man at waist level, saying, ‘I’ll kill you.’ Two nearby police
officers on horses intervened and arrested defendant.” (People
v. Aledamat (2018) 20 Cal.App.5th 1149, 1151-1152
(Aledamat).)
      As relevant to the issue on review, the People charged
defendant with assault with a deadly weapon under Penal Code
section 245, subdivision (a)(1), and making a criminal threat
under Penal Code section 422.1 As to the threat charge, the
People also alleged that defendant personally used a deadly and
dangerous weapon. (§ 12022, subd. (b)(1).) The case went to a
jury trial.
      The court instructed the jury that, for the assault charge,
the People had to prove the following: “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


1
      All further statutory references are to the Penal Code.


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                       PEOPLE v. ALEDAMAT
                   Opinion of the Court by Chin, J.


say [sic] person; the defendant did that act willfully; 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; and when the defendant acted, he had the present
ability to apply force with a deadly weapon other than a firearm
to a person.” (See CALCRIM No. 875.)
      The court defined “a deadly weapon” as “any object,
instrument, or weapon that is inherently deadly or one that is
used in such a way that it is capable of causing and likely to
cause death or . . . great bodily injury.” (See CALCRIM No.
875.) Regarding the weapon enhancement, the court instructed
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.
      In his opening argument to the jury, the prosecutor argued
that the box cutter was a “deadly weapon” because “[i]f used in
a way to cause harm, it would cause harm.” Emphasizing the
word “probably,” defense counsel argued that defendant’s act
would not probably result in the application of force to the
victim. Defense counsel did not specifically discuss whether the
box cutter was a deadly weapon. In his closing argument, the
prosecutor argued that the box cutter was an “inherently deadly



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                      PEOPLE v. ALEDAMAT
                   Opinion of the Court by Chin, J.


weapon,” noting that “you wouldn’t want your children playing
with” it.
      The jury convicted defendant of both counts and found the
weapon allegation true. The court sentenced defendant to
prison, and he appealed.
      The Court of Appeal affirmed the conviction for making a
criminal threat. But it reversed the conviction of assault with a
deadly weapon and the true finding on the weapon allegation.
It found that the trial court erroneously permitted the jury to
find the box cutter to be an inherently deadly weapon. It
believed the error required it to reverse the conviction “ ‘absent
a basis in the record to find that the verdict was actually based
on a valid ground,’ ” which “exists only when the jury has
‘actually’ relied upon the valid theory.” (Aledamat, supra, 20
Cal.App.5th at p. 1153.) It found “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).” (Id. at p.
1154.)
       The Court of Appeal added that “the rules regarding
prejudice that we apply in this case are arguably in tension with
more recent cases, such as People v. Merritt (2017) 2 Cal.5th 819
[216 Cal.Rptr.3d 265, 392 P.3d 421], providing that the failure
to instruct on the elements of a crime does not require reversal
if those omitted elements are ‘uncontested’ and supported by
‘ “overwhelming evidence.” ’ (Id. at pp. 821-822, 830-832; see
Neder v. United States (1999) 527 U.S. 1, 17-18 [144 L.Ed.2d 35,
119 S.Ct. 1827].) That test would certainly be satisfied here,
where defendant never disputed that the box cutter was being




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                      PEOPLE v. ALEDAMAT
                   Opinion of the Court by Chin, J.


used as a deadly weapon and where the evidence of such use is
overwhelming.” (Aledamat, supra, 20 Cal.App.5th at p. 1154.)
     We granted the Attorney General’s petition for review to
determine the standard of review of error of this kind, and to
determine whether the error was prejudicial under this
standard.
                         II. DISCUSSION
     A. The Error
      The jury found defendant guilty of assault with a deadly
weapon under section 245, subdivision (a)(1), and, as to the
criminal threat charge, it found true that defendant personally
used a deadly or dangerous weapon under section 12022,
subdivision (b)(1). The court instructed the jury that a weapon
could be either inherently deadly or deadly in the way defendant
used it. The instruction accurately stated the law. However, as
the parties agree, 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 [78 Cal.Rptr. 217, 455 P.2d
153] . . . .) 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.


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                      PEOPLE v. ALEDAMAT
                   Opinion of the Court by Chin, J.


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. (Aledamat, supra, 20 Cal.App.5th
at p. 1153; see People v. Stutelberg (2018) 29 Cal.App.5th 314,
317 (Stutelberg) [also involving assault with a box cutter].)2
      Accordingly, as the Court of Appeal held in this case, and
as the court in Stutelberg, supra, 29 Cal.App.5th at page 317,
held, the trial court erred in presenting the jury with two
theories by which it could find the box cutter a deadly weapon:



2
       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; see People v. Graham, supra, 71
Cal.2d at p. 327 [stating the same rule regarding whether an
object is a “ ‘dangerous or deadly weapon,’ ” cited in People v.
Aguilar, supra, 16 Cal.4th at p. 1029]; People v. Brown (2012)
210 Cal.App.4th 1, 9-10.) 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.



                                  6
                      PEOPLE v. ALEDAMAT
                   Opinion of the Court by Chin, J.


(1) inherently or (2) as used. The first theory (inherently) is
incorrect, but the second theory (as used) is correct.
      In People v. Guiton (1993) 4 Cal.4th 1116 (Guiton), we
considered the consequences when a court instructs on two
theories of guilt, one correct and the other incorrect.3 We
distinguished between two categories of incorrect theories.
Under what we called a “ ‘factually inadequate theory,’ ” the
theory is incorrect only because the evidence does not support it.
(Id. at p. 1128.) We said that “[i]f the inadequacy of proof is
purely factual, of a kind the jury is fully equipped to detect,
reversal is not required whenever a valid ground for the verdict
remains, absent an affirmative indication in the record that the
verdict actually did rest on the inadequate ground.” (Id. at p.
1129; see People v. Rivera (2019) 7 Cal.5th 306, 329.)
      Under what we called a “ ‘legally inadequate theory,’ ” the
theory is incorrect because it is contrary to law. (Guiton, supra,
4 Cal.4th at p. 1128.) An example of this second category “is a
case where the inadequate theory ‘fails to come within the
statutory definition of the crime.’ ” (Ibid.) As an example, we
cited People v. Green (1980) 27 Cal.3d 1, where the jury was
erroneously permitted to consider 90 feet to be sufficient to
satisfy the asportation element for kidnapping. “At issue [in
Green] was whether 90 feet was sufficient asportation to satisfy
the elements, or the ‘statutory definition,’ of kidnapping. There
was no insufficiency of proof in the sense that there clearly was
evidence from which a jury could find that the victim had been
asported the 90 feet. Instead, we held that the distance was

3
      We will call this kind of error “alternative-theory error,”
as has the United States Supreme Court. (Hedgpeth v. Pulido
(2008) 555 U.S. 57, 61 (Hedgpeth).)


                                  7
                      PEOPLE v. ALEDAMAT
                   Opinion of the Court by Chin, J.


‘legally insufficient.’ (Green, supra, 27 Cal.3d at p. 67, italics
added.)” (Guiton, at p. 1128.)
      When the theory is legally erroneous—i.e., of a kind the
jury is not equipped to detect—a higher standard must be met
for the error to be found harmless. “These different tests reflect
the view that jurors are ‘well equipped’ to sort factually valid
from invalid theories, but ill equipped to sort legally valid from
invalid theories.” (Aledamat, supra, 20 Cal.App.5th at pp. 1153-
1154, quoting Guiton, supra, 4 Cal.4th at p. 1126.) Or, as the
Stutelberg court summarized, “A legal error is an incorrect
statement of law, whereas a factual error is an otherwise valid
legal theory that is not supported by the facts or evidence in a
case. [Citation.] Between the two, legal error requires a more
stringent standard for prejudice, for jurors are presumed to be
less able to identify and ignore an incorrect statement of law due
to their lack of formal legal training. [Citation.] Factual errors,
on the other hand, are less likely to be prejudicial because jurors
are generally able to evaluate the facts of a case and ignore
factually inapplicable theories.”         (Stutelberg, supra, 29
Cal.App.5th at p. 318.)
      As both the Court of Appeal and Stutelberg held, the error
here is of the second category: legal error. Courts have held
that a knife is not inherently deadly as a matter of law. Only a
few items that are designed to be used as deadly weapons are
inherently deadly. (People v. Perez, supra, 4 Cal.5th at p. 1065;
People v. Aguilar, supra, 16 Cal.4th at p. 1029.) If the court had
instructed the jury on this point, the error would have been
purely factual. “But the jurors were never provided with this
definition, and they could reasonably classify a box cutter, which
is sharp and used for cutting, as inherently dangerous based on
the common understanding of the term. This amounts to legal,

                                  8
                       PEOPLE v. ALEDAMAT
                   Opinion of the Court by Chin, J.


rather than factual, error.” (Stutelberg, supra, 29 Cal.App.5th
at p. 319.) “There was no failure of proof—that is, a failure to
show through evidence that the box cutter is an ‘inherently
dangerous’ weapon. Instead, a box cutter cannot be an
inherently deadly weapon ‘as a matter of law.’ ” (Aledamat,
supra, 20 Cal.App.5th at p. 1154.) Because the trial court here
did not define what “inherently deadly” meant, the jury would
not be equipped to know that, contrary to what the instruction
suggested, a box cutter is not an inherently deadly weapon.
      Based on the state of the law at the time, in Guiton, we
said that legal error is “subject to the rule generally requiring
reversal.” (Guiton, supra, 4 Cal.4th at p. 1128.) But we also
said that this does not mean that reversal is always required
when the error is legal. (Id. at p. 1129.) Because the error in
Guiton was purely factual, and thus subject to the lenient
standard of review applicable to factually inadequate theories,
we did not need to decide the exact standard of review of cases
involving legal error. (Id. at p. 1130.) We said that “[o]ne way
of finding this kind of error harmless has long been recognized.
Sometimes it is possible to determine from other portions of the
verdict that the jury necessarily found the defendant guilty on a
proper theory. [Citations.] [¶] There may be additional ways
by which a court can determine that [legal] error . . . is harmless.
We leave the question to future cases.” (Id. at pp. 1130-1131.)
      We now consider this question.
      B. Standard of Review of the Error
      “[B]efore a federal constitutional error can be held
harmless, the court must be able to declare a belief that it was
harmless beyond a reasonable doubt.” (Chapman, supra, 386
U.S. at p. 24.) This harmless error rule applies in a variety of


                                  9
                       PEOPLE v. ALEDAMAT
                   Opinion of the Court by Chin, J.


contexts, such as to error in omitting entirely one or more
elements of a charged offense. (People v. Merritt, supra, 2
Cal.5th at p. 822 (Merritt).)
      In Merritt, the trial court neglected to instruct the jury on
most of the elements of the charged offenses of robbery. We
found the error, “serious though it was,” subject to harmless
error review. (Merritt, supra, 2 Cal.5th at p. 822.) Relying
heavily on United States Supreme Court decisions such as
Neder v. United States, supra, 527 U.S. 1 (Neder) (omission of
an element of the offense) and Hedgpeth, supra, 555 U.S. 57
(alternative-theory error like that of this case), we held the error
“is reversible unless harmless beyond a reasonable doubt.”
(Merritt, at p. 822.)
      Defendant argues that the application of Chapman is
different for alternative-theory error than for other
misdescriptions of the elements of the charged offense. The
Court of Appeal agreed. Citing Guiton, supra, 4 Cal.4th 1116, it
believed the error requires reversal unless there is a basis in the
record to find that “the jury has ‘actually’ relied upon the valid
theory . . . .” (Aledamat, supra, 20 Cal.App.5th at p. 1153.) The
court further believed that, on this record, it could not find that
the jury actually relied on the valid theory. Guiton did not
resolve the question; it reserved it for a future case. (See People
v. Chun (2009) 45 Cal.4th 1172, 1203 (Chun); People v. Cross
(2008) 45 Cal.4th 58, 70 (conc. opn. of Baxter, J.).) We conclude
that no higher standard of review applies to alternative-theory
error than applies to other misdescriptions of the elements. The
same beyond a reasonable doubt standard applies to all such
misdescriptions, including alternative-theory error. We agree
with the recent Court of Appeal decisions of Stutelberg, supra,
29 Cal.App.5th at pages 319-321, and People v. Brown, supra,

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                      PEOPLE v. ALEDAMAT
                   Opinion of the Court by Chin, J.


210 Cal.App.4th at pages 12-13, which reached similar
conclusions regarding similar error.4
      Chun, supra, 45 Cal.4th 1172, involved alternative-theory
error concerning the element of implied malice in a murder case.
Citing authority that included Neder, supra, 527 U.S. 1, and
Hedgpeth, supra, 555 U.S. 57, we reiterated that “[i]nstructional
error regarding the elements of the offense requires reversal of
the judgment unless the reviewing court concludes beyond a
reasonable doubt that the error did not contribute to the
verdict.” (Chun, at p. 1201.) In seeking a more precise test, we
quoted Justice Scalia’s concurring opinion in another case
involving misdescription of an element: “ ‘The error in the
present case can be harmless only if the jury verdict on other
points effectively embraces this one or if it is impossible, upon
the evidence, to have found what the verdict did find without
finding this point as well.’ ” (Id. at p. 1204, quoting California
v. Roy (1996) 519 U.S. 2, 7 (conc. opn. of Scalia, J.).) We then
said, “Without holding that this is the only way to find error


4
       Although Stutelberg, supra, 29 Cal.App.5th 314,
purported to apply the Chapman test, it concluded its harmless
error analysis as to one count as follows: “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 it would have rejected the deadly
weapon enhancement on count 1. Therefore, the instructional
error was harmless beyond a reasonable doubt.” (Id. at p. 322,
italics added.) But the reasonable probability test is different
and more lenient than the reasonable doubt test that applies
here. (See People v. Watson (1956) 46 Cal.2d 818, 836
[reasonable probability test applies to errors of state law].)
Reviewing courts must apply the Chapman test to error of this
kind, not the inapplicable Watson test.


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                       PEOPLE v. ALEDAMAT
                    Opinion of the Court by Chin, J.


harmless, we think this test works well here, and we will use it.
If other aspects of the verdict or the evidence leave no
reasonable doubt that the jury made the findings necessary for
conscious-disregard-for-life malice, the erroneous felony-murder
instruction was harmless.” (Chun, at pp. 1204-1205.)
       In People v. Cross, supra, 45 Cal.4th 58, the defendant
argued that alternative-theory error can be found harmless only
if the verdict itself shows that the jury relied on a valid theory.
Justice Baxter authored a concurring opinion arguing against
this position, which we find persuasive. He “agree[d] with the
weight of existing authority, which applies the Chapman
harmless-error standard in determining whether the
submission to the jury of two legal theories, one valid and one
invalid, requires reversal.” (Cross, at p. 70 (conc. opn. of Baxter,
J.).) Noting that a related question was then before the high
court (ibid., citing the case that later became Hedgpeth, supra,
555 U.S. 57), he argued that “an instructional error with respect
to an element does not become more problematic simply because
the jury may potentially have relied on an alternative theory
that was entirely error free. Defendant’s argument [that a more
stringent test applies to alternative-theory error] ‘reduces to the
strange claim that, because the jury here received both a “good”
charge and a “bad” charge on the issue, the error was somehow
more pernicious than in [a high court decision]—where the only
charge on the critical issue was a mistaken one. That assertion
cannot possibly be right, so it is plainly wrong.’ (Quigley v. Vose
(1st Cir. 1987) 834 F.2d 14, 16; accord, Becht v. U.S. (8th Cir.
2005) 403 F.3d 541, 548 [“it would be ‘anomalous’ to preclude
harmless-error review under Chapman ‘because the jury also
was given the option to convict based on a constitutionally valid
theory . . .’] . . . .)” (Cross, at p. 71 (conc. opn. of Baxter, J.).)


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                       PEOPLE v. ALEDAMAT
                   Opinion of the Court by Chin, J.


       A few months after Justice Baxter wrote this in Cross, the
high court expressed similar views in the case that he
mentioned. (Hedgpeth, supra, 555 U.S. 57.) After citing
decisions such as Neder, supra, 527 U.S. 1, that applied the
reasonable doubt standard to review of instructional error
regarding the elements of the charged offense, the high court
said this: “Although these cases did not arise in the context of a
jury instructed on multiple theories of guilt, one of which is
improper, nothing in them suggests that a different harmless-
error analysis should govern in that particular context. . . . [¶]
In fact, drawing a distinction between alternative-theory error
and the instructional errors in [several cases including Neder]
would be ‘patently illogical,’ given that such a distinction
‘ “reduces to the strange claim that, because the jury . . .
received both a ‘good’ charge and a ‘bad’ charge on the issue, the
error was somehow more pernicious than . . . where the only
charge on the critical issue was a mistaken one.” ’ ” (Hedgpeth,
at p. 61, quoting Pulido v. Chrones (9th Cir. 2007) 487 F.3d 669,
677-678 (conc. opn. of O’Scannlain, J.), which quoted Quigley v.
Vose, supra, 834 F.2d at p. 16, and citing Becht v. U.S., supra,
403 F.3d 541, 548.)
      Hedgpeth, supra, 555 U.S. 57, involved collateral review
on federal habeas corpus. But, in another case of alternative-
theory error, the high court “clarif[ied]” that harmless-error
analysis “applies equally to cases on direct appeal.” (Skilling v.
United States (2010) 561 U.S. 358, 414, fn. 46 [remanding the
case to the circuit court to determine whether the error was
prejudicial].) As the court that reviewed the Skilling case on
remand recognized, in Hedgpeth and Skilling, the court “did not
specifically identify the harmless-error standard that is
applicable to alternative-theory errors, but it cited to a string of


                                 13
                      PEOPLE v. ALEDAMAT
                   Opinion of the Court by Chin, J.


cases that apply a common harmless-error standard to other
types of instructional errors.” (U.S. v. Skilling (5th Cir. 2011)
638 F.3d 480, 481; see id. at p. 482 [applying the beyond a
reasonable doubt standard].)            Additionally, Hedgpeth’s
statement that nothing “suggests that a different harmless-
error analysis should govern” alternative-theory error
(Hedgpeth, at p. 61), leaves no doubt that the same Chapman
analysis of harmless error applies to alternative-theory error as
applies to other kinds of misdescription of the elements. Federal
circuit decisions have consistently applied the Chapman test to
alternative-theory error. (U.S. v. Garrido (9th Cir. 2013) 713
F.3d 985, 994; Bereano v. U.S. (4th Cir. 2013) 706 F.3d 568, 577-
578; U.S. v. Jefferson (4th Cir. 2012) 674 F.3d 332, 360-361; U.S.
v. Ferguson (2d Cir. 2011) 676 F.3d 260, 276-277; U.S. v. Black
(7th Cir. 2010) 625 F.3d 386, 388.)
      Applying a different standard of error in this case would
be particularly anomalous. If the trial court had simply
instructed the jury that a box cutter was a deadly weapon as a
matter of law, and given no correct instruction whatsoever, the
error would clearly be subject to Chapman harmless error
review. (People v. Brooks (2017) 3 Cal.5th 1, 69 [misdescription
of an element of a charged offense].) But here, the court also
provided the jury with a valid theory. Providing the jury with
both a valid and an invalid theory should not be subject to a
higher standard of review than applies when the court provides
the jury only with an invalid theory.
      Our decisions in In re Martinez (2017) 3 Cal.5th 1216
(Martinez) and People v. Chiu (2014) 59 Cal.4th 155 (Chiu) are
not to the contrary. In both cases, we reviewed alternative-
theory error regarding the elements of first degree murder. In
Chiu, we said that “[w]hen a trial court instructs a jury on two

                                 14
                      PEOPLE v. ALEDAMAT
                   Opinion of the Court by Chin, J.


theories of guilt, one of which was legally correct and one legally
incorrect, reversal is required unless there is a basis in the
record to find that the verdict was based on a valid ground.
[Citations.] Defendant’s first degree murder conviction must be
reversed unless we conclude beyond a reasonable doubt that the
jury based its verdict on the legally valid theory that defendant
directly aided and abetted the premeditated murder.” (Chiu, at
p. 167.) But we also noted that questions from the jury during
deliberations “shows that the jury may have based its verdict of
first degree premeditated murder on the [erroneous] theory.”
(Ibid.) Accordingly, we could not “conclude beyond a reasonable
doubt that the jury ultimately based its first degree murder
verdict on a different theory, i.e., the legally valid theory that
defendant directly aided and abetted the murder.” (Id. at p.
168.)
      In Martinez, we applied the same standard to collateral
review of cases containing the same error: “Chiu error requires
reversal unless the reviewing court concludes beyond a
reasonable doubt that the jury actually relied on a legally valid
theory in convicting the defendant of first degree murder.”
(Martinez, supra, 3 Cal.5th at p. 1218.) But we also noted that
the prosecutor had relied heavily on the invalid theory in
argument to the jury, and that “an inquiry by the jury during its
deliberations suggested that it was considering the” invalid
theory. (Id. at p. 1227.) For these reasons, “we conclude[d] that
the Attorney General has not shown beyond a reasonable doubt
that the jury relied on a legally valid theory in convicting
Martinez of first degree murder.” (Ibid.)
     Defendant argues that, by focusing on what the jury
actually did, Chiu and Martinez stated a standard different, and
higher, than Chapman’s reasonable doubt standard. But Chiu

                                 15
                      PEOPLE v. ALEDAMAT
                   Opinion of the Court by Chin, J.


and Martinez were only a specific application of the more
general reasonable doubt test stated in cases like Neder, supra,
527 U.S. 1, and Merritt, supra, 2 Cal.5th 819. The test stated in
Chiu and Martinez was taken from Chun, supra, 45 Cal.4th at
pages 1203 to 1205. (See Chiu, supra, 59 Cal.4th at p. 167.)
Chun also stated that the error “requires reversal of the
judgment unless the reviewing court concludes beyond a
reasonable doubt that the error did not contribute to the
verdict.” (Chun, at p. 1201.) Finding beyond a reasonable doubt
that the error did not contribute to the verdict is essentially the
same as finding the error harmless beyond a reasonable doubt.
In Chun, we said that one way, but not necessarily the only way,
the Chapman test could be satisfied was to apply Justice Scalia’s
test of whether “ ‘it is impossible, upon the evidence, to have
found what the verdict did find without finding’ ” the missing
point as well. (Id. at p. 1204.) We equated this impossibility
with a conclusion that the jury actually made the necessary
finding. (Id. at pp. 1204-1205.)
       In determining this impossibility or, more generally,
whether the error was harmless, the reviewing court is not
limited to a review of the verdict itself. An examination of the
actual verdict may be sufficient to demonstrate harmlessness,
but it is not necessary. In both Chiu and Martinez, we examined
the record and found that it affirmatively showed the jury might
have based its verdict on the invalid theory. Because no other
basis to find the error harmless beyond a reasonable doubt was
at issue, we did not explore whether other ways of finding the
error harmless existed. Those cases merely provide one way in
which a court might evaluate harmlessness. They do not
preclude other ways.



                                 16
                      PEOPLE v. ALEDAMAT
                   Opinion of the Court by Chin, J.


      For these reasons, we conclude that alternative-theory
error is subject to the more general Chapman harmless error
test. 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. We disapprove of any
interpretation of People v. Green, supra, 27 Cal.3d 1, that limits
the reviewing court to an examination of the jury’s findings as
reflected in the verdict itself or that is otherwise inconsistent
with this opinion.
     We now apply this standard to this case.
     C. Application of the Standard to This Case
      A number of circumstances convince us beyond a
reasonable doubt that the error was harmless. It is clear the
error did not contribute to the verdict.
      The argument that the error was prejudicial supposes
that, under the instructions, the jury would believe there were
two separate ways it could find the box cutter to have been a
deadly weapon. The first method would be simply to find it was
inherently deadly without considering any of the surrounding
circumstances. The second method would be to consider how
defendant used it. Technically, this is correct. The court used
the disjunctive “or,” which, out of context, would seem to permit
such separation. In context, however, it is unlikely the jury
would so view the instructions.
     The instruction referred to an object 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.”
This juxtaposition at least indicates what the “inherently
deadly” language was driving at. Additionally, the jury was also


                                 17
                      PEOPLE v. ALEDAMAT
                   Opinion of the Court by Chin, J.


instructed: “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.” This part of the instruction
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. The jury
would likely view the “inherently deadly” language in light of
this additional instruction that it had to consider all of the
circumstances. Given this additional instruction, it seems
unlikely the jury would simply view the box cutter as inherently
deadly without considering the circumstances, including how
defendant used it.
       The arguments of counsel support this conclusion. At one
point, the prosecutor stated that the box cutter was inherently
deadly because “you wouldn’t want your children playing with”
it, without further explaining the term. But no one ever
suggested to the jury that there were two separate ways it could
decide whether the box cutter was a deadly weapon. Defense
counsel argued that defendant did not use the box cutter in a
way that would probably result in the application of force, that
is, that defendant did not assault the victim at all—an argument
the jury necessarily rejected when it found defendant guilty of
that crime. But counsel never argued that, if he did assault the
victim with the box cutter, the box cutter was not a deadly
weapon. Although defense counsel did not expressly concede
that the box cutter was a deadly weapon, he did not contest the
point.
      Contesting the point would have been futile based on the
record here. A box cutter is not inherently deadly because it is

                                 18
                      PEOPLE v. ALEDAMAT
                   Opinion of the Court by Chin, J.


not designed for that purpose. But if used to assault someone,
i.e., used as a weapon, a box cutter is potentially deadly even if
not designed for that purpose. (See People v. Graham, supra, 71
Cal.2d at pp. 327-328 [explaining that when a sharp or heavy
object “is capable of being used in a ‘dangerous or deadly’
manner, and it may be fairly inferred from the evidence that its
possessor intended on a particular occasion to use it as a weapon
should the circumstances require, we believe that its character
as a ‘dangerous or deadly weapon’ may be thus established”].)
Counsel could readily believe it would be pointless for him to
argue that even if (contrary to the argument counsel did make)
the jury found defendant assaulted the victim with the box
cutter, it was not a deadly weapon. This is particularly so in
light of defendant’s statement, “I’ll kill you.”
      A nonexclusive way the error can be found harmless
beyond a reasonable doubt, one that “work[ed] well” in Chun,
supra, 45 Cal.4th at page 1205, and that also works well here,
is the test derived from Justice Scalia’s concurring opinion in
California v. Roy, supra, 519 U.S. at page 7. The reviewing court
examines what the jury necessarily did find and asks whether it
would be impossible, on the evidence, for the jury to find that
without also finding the missing fact as well. (Chun, at pp.
1204-1205.) Here, under the instructions, the jury necessarily
found the following: (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.


                                 19
                      PEOPLE v. ALEDAMAT
                   Opinion of the Court by Chin, J.


      Additionally, the jury must have considered the term
“inherently deadly” to mean something. As the Stutelberg court
explained, the theoretical risk is that, because the court did not
define the term, the jury might have applied its common
understanding to find the box cutter deadly because it is sharp
and used for cutting. (Stutelberg, supra, 29 Cal.App.5th at p.
319; cf. People v. Pruett (1997) 57 Cal.App.4th 77, 86 [the trial
court did not err in failing to define what is a deadly weapon
because “[j]urors can certainly employ common sense and
experience to determine whether or not such a knife is a ‘deadly’
instrument”].) But if the jury did so, it would necessarily find
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.
      “No reasonable jury that made all of these findings could
have failed to find” that defendant used the box cutter in a way
that is capable of causing or likely to cause death or great bodily
injury. (Merritt, supra, 2 Cal.5th at p. 832.) For all of these
reasons, the error was harmless beyond a reasonable doubt.
      D. The Instructions
      As this case demonstrates, the standard instructions on
assault with a deadly weapon and use of a deadly and dangerous
weapon are problematic. (See CALCRIM Nos. 875, 3145.) They
do not define what is an inherently deadly weapon. Worse,
without modification, they provide the jury with the “inherently
deadly” theory even in those cases (i.e., most of them) in which
the weapon is not inherently deadly as a matter of law. We
suggest the instructions be modified to avoid these problems in
the future.




                                 20
                      PEOPLE v. ALEDAMAT
                   Opinion of the Court by Chin, J.


     In most cases, the inherently deadly language is
inapplicable, for most objects are not inherently deadly even if
they may be used in a way that makes them deadly. The
inherently deadly language is also generally unnecessary. For
the most part, those objects that are designed for use as a deadly
weapon will be also used in a way that makes them deadly
weapons.5 Accordingly, the standard instruction might be
improved by simply deleting any reference in the usual case to
inherently deadly weapons.
      But because, under current law, some objects, such as
dirks and blackjacks, are inherently deadly, instructing on that
theory might be appropriate in some cases. (But see fn. 5.) If
the prosecution believes the weapon used in a given case is
inherently deadly, and it believes modifying the instruction
would be useful, it may request the court to add that theory of
the case to the instructions. On such a request, the court should
consider whether the evidence would support a finding that the
weapon is inherently deadly. If so, the court would have
discretion to instruct on that theory. If it does so, however, it
should also define what is meant by inherently deadly, i.e., an
object that is designed for use as a deadly weapon. (See People
v. Perez, supra, 4 Cal.5th at p. 1065.)




5
      In light of this, it may be asked whether a policy exists for
treating inherently deadly weapons differently from other
objects capable of being used as a deadly weapon, particularly
since the distinction is not reflected in the text of section 245.
Because the facts and arguments of this case do not present the
question, we leave it for another day.


                                 21
                   PEOPLE v. ALEDAMAT
                Opinion of the Court by Chin, J.


                    III. CONCLUSION
      We reverse the judgment of the Court of Appeal and
remand the matter to that court for further proceedings
consistent with this opinion.
                                                   CHIN, J.
We Concur:

CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
KRUGER, J.




                              22
                    PEOPLE v. ALEDAMAT
                             S248105


       Concurring and Dissenting Opinion by Justice Liu


       I agree with today’s opinion that alternative-theory error
is subject to the Chapman beyond-a-reasonable-doubt harmless
error standard (Chapman v. California (1967) 386 U.S. 18, 24)
and that our decisions in People v. Chun (2009) 45 Cal.4th 1172,
People v. Chiu (2014) 59 Cal.4th 155, and In re Martinez (2017)
3 Cal.5th 1216 are “not to the contrary.” (Maj. opn., ante, at
p. 14; see id. at pp. 14–16.)
         I part ways with today’s opinion, however, with respect to
its conclusion that in light of what “the jury necessarily did find
. . . it would be impossible, on the evidence, for the jury to find
that without also finding the missing fact as well.” (Maj. opn.,
ante, at p. 19.) Justice Cuéllar’s concurring and dissenting
opinion carefully explains why we cannot be confident beyond a
reasonable doubt that the jury in this case found the box cutter
to be a deadly weapon on a valid legal theory. In particular, the
trial court’s own equivocation and the prosecutor’s repeated
conflation of the deadly-weapon and force requirements in
closing argument could well have misled the jury. (Conc. & dis.
opn. of Cuéllar, J., post, at pp. 7–8.) Because of these confusing
statements, and because the trial court erred in providing the
“inherently deadly” instruction to the jury, the jury may have
convicted defendant for conduct that does not constitute the
crime of assault with a deadly weapon. Although the jury “must
have considered the term ‘inherently deadly’ to mean
something” (maj. opn., ante, at p. 20), it is quite possible that the
                      PEOPLE v. ALEDAMAT
                  Liu, J., concurring and dissenting


jury understood “inherently deadly” to mean that the box cutter
itself was readily capable of causing deadly harm, without
finding that defendant in fact used the box cutter in a manner
likely to cause death or great bodily injury. Accordingly, I would
affirm the judgment of the Court of Appeal.


                                             LIU, J.




                                  2
                    PEOPLE v. ALEDAMAT
                            S248105


    Concurring and Dissenting Opinion by Justice Cuéllar


       In our constitutional system the right to trial by jury
means “the jury, rather than the judge, reach[es] the requisite
finding of ‘guilty.’ ” (Sullivan v. Louisiana (1993) 508 U.S. 275,
277; see Cal. Const., art. I, § 16.) That’s a principle that can be
simple to state but difficult to honor, especially when harmless
error review is at stake. Because virtually all forms of harmless
error review risk infringing on “the jury’s factfinding role and
affect[ing] the jury’s deliberative process in ways that are,
strictly speaking, not readily calculable,” courts performing
harmless error review are walking a tightrope — where they
must weigh how an error affected the proceedings without
displacing the jury as finder of fact. (Neder v. United States
(1999) 527 U.S. 1, 18 (Neder).)
      That’s why caution’s been the watchword when we’ve
stepped onto that tightrope. Like the United States Supreme
Court, to date we’ve found instructional error harmless only
when we can conclude “beyond a reasonable doubt” either that
the jury necessarily relied on a valid legal theory (see People v.
Chun (2009) 45 Cal.4th 1172, 1205 (Chun); see maj. opn., ante,
at p. 20) or that the element omitted or misdescribed “was
uncontested and supported by overwhelming evidence, such that
the jury verdict would have been the same absent the error”
(Neder, supra, 527 U.S. at p. 17, italics added; see, e.g., maj.
opn., ante, at p. 19; People v. Merritt (2017) 2 Cal.5th 819, 824
(Merritt) [finding error harmless where the defense expressly
                        PEOPLE v. ALEDAMAT
                  Cuéllar, J., concurring and dissenting


conceded a robbery occurred and there was overwhelming video
evidence of the only contested issue]; cf. People v. Canizales
(2019) 7 Cal.5th 591, 616 (Canizales) [examining both the
“strong” and the “conflicting evidence” on a contested issue and
noting “both the prosecutor’s closing argument and the
attempted murder instruction” had “the potential to cause
confusion”]; People v. Mil (2012) 53 Cal.4th 400, 417 (Mil)
[reversing burglary and robbery special circumstances because
the defendant “contested whether he acted with reckless
indifference to human life” and “the record support[ed] a
reasonable doubt as to that element”]).         These tests —
permutations of harmless-error review tailored for instructional
error — demand searching inquiry, and rightly so: They help us
maintain the critical equilibrium between constitutional
guarantees and “ ‘society’s interest in punishing the guilty.’ ”
(Id. at p. 18.)
      The majority loses that balance today. Tumbling headlong
into the jury’s factfinding role, the majority fails to live up to the
“more general Chapman [v. California] harmless error test” it
purports to apply. (Maj. opn., ante, at p. 16; see Chapman v.
California (1967) 386 U.S. 18 (Chapman).)                The result,
unfortunately, is an error of our own –– one hardly harmless to
the defendant in this case. With respect, I dissent.
                                    I.
       To find Yazan Aledamat guilty of assault with a deadly
weapon, the jury had to decide not only that he had the box
cutter in his hand, but that he used it as a deadly weapon. The
trial judge issued form instructions from CALCRIM No. 875,
which provides that the prosecution must prove:




                                    2
                       PEOPLE v. ALEDAMAT
                 Cuéllar, J., concurring and dissenting


     (1) that 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) that the defendant did that act willfully;
      (3) that 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; and
      (4) that when the defendant acted, he had the present
ability to apply force with a deadly weapon other than a firearm.
(CALCRIM No. 875.)
      Here’s what’s also covered by those jury instructions: to
“apply force” means “to touch in a harmful or offensive manner,”
which can include “the slightest touching” if done in a rude or
angry way. As long as the prosecution can prove the defendant’s
act would probably result in the application of force, it is not
required to prove “that the defendant actually touched
someone.” (CALCRIM No. 875.) A deadly weapon other than a
firearm, moreover, “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.” (Ibid.) Great bodily injury, in turn, “means significant
or substantial physical injury. It is injury that is greater than
minor or moderate harm.” (Ibid.)
      Presented to the jury during trial, these instructions
permit the jury to conclude a box cutter can be a deadly weapon.
But to reach that conclusion, a jury must find the box cutter is
either “inherently deadly” or was “used in such a way that it is
capable of causing and likely to cause death or great bodily
injury.” (CALCRIM No. 875.) Yet as the majority explains, this

                                   3
                       PEOPLE v. ALEDAMAT
                 Cuéllar, J., concurring and dissenting


instruction is incorrect, at least in this case: as a matter of law,
a box cutter is not inherently deadly. (Maj. opn., ante, at p. 5.)
It is, however, capable of causing death or great bodily injury
and, depending on how it is used, may even be likely to cause
death or great bodily injury. (Ibid.) So for a proper conviction
of assault with a deadly weapon on these facts, the jury would
have needed to rely on the second prong of the deadly weapon
definition — the legally valid theory in this case.
      The majority plays up that there’s more than “one way”
(maj. opn., ante, pp. 16, 19) a reviewing court can conclude
“ ‘beyond a reasonable doubt that the error did not contribute to
the verdict’ ” (id. at p. 16, quoting Chun, supra, 45 Cal.4th at
p. 1201). I agree. But when, we cannot “conclude, beyond a
reasonable doubt, that the jury based its verdict on a legally
valid theory” (Chun, supra, 45 Cal.4th at p. 1203), we may find
the instructional error harmless only if we can determine
beyond a reasonable doubt that “the jury verdict would have
been the same absent the error.” (Neder, supra, 527 U.S. at
p. 17.) That’s the situation here.
      In other words, we ask whether it is clear beyond a
reasonable doubt the jury would have found Aledamat guilty of
assault with a deadly weapon had it been given only the correct
instruction, which required it to find that he used a box cutter
in a manner “capable of causing and likely to cause death or
great bodily injury.” (CALCRIM No. 875.) Or, “ ‘in typical
appellate-court fashion,’ ” we ask the inverse: “ ‘whether the
record contains evidence that could rationally lead to a contrary
finding with respect to the [deadly weapon] element.’ ” (Merritt,
supra, 2 Cal.5th at p. 832, quoting Neder, supra, 527 U.S. at p.
19.) And Neder itself provided a useful rubric to evaluate
instructional error, explaining that Chapman’s mandate can be

                                   4
                       PEOPLE v. ALEDAMAT
                 Cuéllar, J., concurring and dissenting


satisfied where the element omitted or misdescribed “was
uncontested and supported by overwhelming evidence.” (Neder,
at p. 17.)
       The majority seems not to have made this inquiry. Indeed,
its primary quarrel is with the very notion that the instruction
was error, let alone prejudicial error. (Maj. opn., ante, at p. 17.)
It argues, in essence, that the jury “likely” understood the term
“inherently deadly” to mean something approximating the
correct instruction — “capable of and likely to cause great bodily
injury.” (Id. at pp. 17, 18.) That is, a jury is “unlikely” to find
the disjunctive “or” — “inherently deadly or . . . capable of
causing and likely to cause” great bodily injury (CALCRIM No.
875, italics added) — to present two alternatives. (Maj. opn.,
ante, at pp. 17–18.) Instead, the majority says, the jury will
understand “inherently deadly” to be defined by the words
surrounding it, notwithstanding the disjunctive. (Id. at p. 17
[explaining the “juxtaposition” of the words “at least indicates
what the ‘inherently deadly’ language was driving at”]; id. at
p. 20 [“[T]he jury must have considered the term ‘inherently
deadly’ to mean something”].) In other words, if the jury doesn’t
understand that “inherently deadly” is a shortcut, it will hold
the prosecution to roughly the same standard that the correct
instruction does.
      Three problems mar this argument. First, it is pure
conjecture. Nothing in the record suggests, let alone compels us
to conclude, that the jury read the instructions in the way the
majority speculates. It is just as likely — and more consistent
with principles of English usage — that the “juxtaposition” of
two disjunctive clauses suggests just that (maj. opn., ante, at p.
17): They are juxtaposed because they are distinct. One does
not define the other, in whole or in part.

                                   5
                       PEOPLE v. ALEDAMAT
                 Cuéllar, J., concurring and dissenting


      Second, the argument is at odds with the majority’s
characterization of the instructions as “problematic” and its
suggestion that they be “modified to avoid these problems in the
future.” (Maj. opn., ante, at p. 21.) Why alter anything if, as the
majority implies, jurors can more or less figure it out on their
own? (Id. at p. 20 [citing People v. Pruett (1997) 57 Cal.App.4th
77, 86 for the proposition that jurors can determine whether a
knife is a deadly instrument based on “common sense”].)
(Indeed, jurors can guess approximate meanings for most legal
principles and elements, from robbery to “deadly weapon”; I
imagine the majority would not suggest we dispense with those
instructions out of an abiding belief that common sense will
suffice.)
      Third — and perhaps most importantly — in this case
there is evidence not only that the jury may have misunderstood
the task before it, but that it was affirmatively (though
inadvertently) misled.
       The confusion began when the judge instructed the jury
on the elements. On beginning to read the definition of great
bodily injury — and before reaching the definition of a deadly
weapon — the judge stopped, said the jury “[didn’t] need that
definition” and asked the jury to cross it out. The jurors affirmed
that they had crossed out the definition. Moving on to the
deadly weapon instruction, the judge realized the definition of
“great bodily injury” was relevant. He stopped, had a short
exchange on the record with counsel, told the jury to ignore their
earlier strike-through of the definition — “And despite the fact
I told you to cross it out, I [now] want you to consider it. Okay?
If you want to write it in, you can.” — and allowed the jury a
brief break. He then recited the criminal threat instructions



                                   6
                       PEOPLE v. ALEDAMAT
                 Cuéllar, J., concurring and dissenting


without revisiting the remainder of the deadly weapon
instruction.
       The majority highlights a feature of the jury instructions.
The jury was instructed to consider “all of the surrounding
circumstances” in deciding whether an object is a deadly weapon
— “ ‘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.’ ” (Maj. opn.,
ante, at p. 17.) “Given this additional instruction,” the majority
writes, “it seems unlikely the jury would simply view the box
cutter as inherently deadly without considering the
circumstances, including how the defendant used it.” (Id. at p.
18.)
      But the additional instruction didn’t apply to the assault
charge. The judge read it in instructing the jury on the deadly
weapon enhancement, and expressly said it became relevant
only if the jury “[found] the defendant guilty of the crimes
charged in counts 1 and 2.” What’s more, during deliberations
the jury asked the court “how to deal with the issue of the
allegation, the deadly or dangerous weapon allegation.” It is far
from obvious that the jury understood its obligation to make a
finding on the deadliness of the box cutter. (See Canizales,
supra, 7 Cal.5th at p. 617 [noting that the jury requested a
readback of testimony that “suggests the jurors at one point
were focused on testimony that would have supported the
[defense] theory”].)
      There’s more. In closing arguments the prosecutor
exacerbated this confusion, suggesting that the mere existence
of the box cutter was sufficient to satisfy the deadly weapon
allegation: “You don’t have to actually inflict injury on the


                                   7
                       PEOPLE v. ALEDAMAT
                 Cuéllar, J., concurring and dissenting


person. What [Aledamat] did was sufficient; he committed a
crime, a crime of assault with a deadly weapon. And the added
allegation is that he used a box cutter.” (Italics added.) She then
conflated the deadly weapon and force requirements, saying,
“Ladies and gentlemen, you wouldn’t want your children using
a box cutter, would you? This is a deadly weapon. If used in a
way to cause harm, it would cause harm. It’s not whether he did
cause harm; it’s could he; could he have caused harm with that
box cutter? The answer: Absolutely.”
      That statement is wrong. Mangling the recitation of the
applicable deadly weapon instruction, the prosecutor’s
statement confuses the minimal force requirement with the
requirement that Aledamat have used the box cutter in a way
“likely to cause death or great bodily injury.” (CALCRIM No.
875.) Nevertheless, the majority charges that defense counsel
failed to “contest the point” (maj. opn., ante, at p.
18) — seemingly recognizing that Neder compels an inquiry of
whether the mistaken instruction was contested.
      True: We and the United States Supreme Court have said
that “removing an element of the crime from the jury’s
consideration” can be harmless “where the defendant concedes
or admits that element.” (People v. Flood (1998) 18 Cal.4th 470,
504; see Hurst v. Florida (2016) 136 S. Ct. 616, 623 [describing
Neder as “holding that the failure to submit an uncontested
element of an offense to a jury may be harmless,” italics added];
Connecticut v. Johnson (1983) 460 U.S. 73, 87 (plur. opn. of
Blackmun, J.) [stating that an instructional error “may be
harmless” if “defendant himself has taken the issue . . . away
from the jury”].) But the burden of proof in a criminal trial lies
solely with the People. (See Flood, at p. 481.) That burden “is
not relieved by a defendant’s tactical decision not to contest an

                                   8
                       PEOPLE v. ALEDAMAT
                 Cuéllar, J., concurring and dissenting


essential element of the offense.” (Estelle v. McGuire (1991) 502
U.S. 62, 69.) Moreover still, where the defense contested
Aledamat’s slightest application of force, it defies logic that the
defense would not also contest an element predicated — at least
in this case — on an even greater application of force. It is at
the very least inconsistent with what we have previously
required. (See, e.g., Merritt, supra, 2 Cal.5th at p. 824 [finding
the defense conceded that a robbery occurred when counsel said
there was “no question these people were robbed, okay. Our only
contention is with element number one that it was not the
defendant.”].)
      And counsel did contest the point — explicitly, at the
outset of his closing argument, when he told the jury that one of
the “two main questions” that they “need[ed] to answer” was
“with respect to the great bodily injury.”
      On rebuttal, the prosecutor continued to conflate the
minimal touching requirement with the dangerousness of the
box cutter itself. “As I said before,” she said, “you wouldn’t want
your children playing with this (indicating). It’s inherently a
deadly weapon. It’s by definition the reason this law was
created.” (Italics added.) By that time, there was no opportunity
for defense counsel to “contest” the point.
      It’s quite plausible that the jury took the prosecutor at her
parting words: the box cutter is “inherently a deadly weapon”
and “by definition the reason this law” — assault with a deadly
weapon — “was created.” The majority all but acknowledges the
only possible understanding of these words, noting that “no one
ever suggested to the jury that there were two separate ways it
could decide whether the box cutter was a deadly weapon.”
(Maj. opn., ante, at p. 18.) That’s true. The prosecutor suggested


                                   9
                       PEOPLE v. ALEDAMAT
                 Cuéllar, J., concurring and dissenting


only one method of finding the box cutter was a deadly weapon,
and that method was incorrect as a matter of law. That the
defense spent so little time discussing the element — which,
again, was not its burden to disprove — further risked letting
the case pivot on the prosecutor’s easy reassurance that
“inherently deadly” was, in essence, just a matter of common
sense — what objects you wouldn’t let your children play with.
(See In re Martinez (2017) 3 Cal.5th 1216, 1226–1227
[concluding the jury could have convicted on the invalid theory
where the prosecutor argued that theory to the jury “at length
during closing argument and rebuttal”].) This is not the kind of
record to give one confidence in the majority’s argument that the
jury understood “inherently deadly” to mean something
approximating deadly as-used. Far more likely on this record is
that the jury would “quickly and easily have found the element
satisfied” by “relying on the instructional misdefinition”
available to it. (People v. Harris (1994) 9 Cal.4th 407, 445 (conc.
opn. of Mosk, J.); see Canizales, supra, 7 Cal.5th at p. 614
[concluding there was “a reasonable likelihood that the jury
understood the kill zone instruction in a legally impermissible
manner” because the prosecution’s definition “was significantly
broader than a proper understanding of the theory permits” and
thus “had the potential to mislead the jury”].) So based on the
jury instructions and counsel’s arguments we can’t conclude
“that the jury verdict would have been the same absent the
error.” (Neder, supra, 527 U.S. at p. 17.)
                                  II.
      The majority’s harmless-error analysis makes scant
reference to the evidence in the record. Relying on that record,
however, is how we evaluate whether the evidence to support
the correct theory — that Aledamat used the box cutter in a

                                  10
                       PEOPLE v. ALEDAMAT
                 Cuéllar, J., concurring and dissenting


way “capable of causing and likely to cause death or great
bodily injury” (CALCRIM No. 875) — was so strong that we
can safely conclude the instructional error did not contribute to
the verdict. (See Neder, supra, 527 U.S. at p. 17.)
       Consider, for instance, what we decided in the recent case
of In re B.M. (2018) 6 Cal.5th 528 (B.M.). We analyzed the
sufficiency of the evidence supporting a conviction for assault
with a deadly weapon — in that case, a butter knife. We
explained that “for an object to qualify as a deadly weapon based
on how it was used, the defendant must have used the object in
a manner not only capable of producing but also likely to
produce death or great bodily injury.” (Id. at p. 530, italics
omitted.) Though we avoided defining “likely,” we explained
that we have previously treated the term to mean at least
“probable” (id. at p. 533) — based on “how the defendant
actually ‘used’ the object,” rather than on conjecture as to how
the object could have been used or what injury might have been
inflicted had the object been used differently (id. at p. 534).
      As an example, we discussed People v. Duke (1985) 174
Cal.App.3d 296, 302, in which the defendant used a headlock to
hold his victim. The victim said the headlock made her feel
choked but did not cut off her breathing; the defendant’s grip
was “ ‘firm,’ ” but the victim did not testify that he tightened his
grip. (B.M., supra, 6 Cal.5th at p. 534.) We favorably cited the
Duke court’s explanation for reversing the conviction: “[T]he
fact that appellant could have easily broken [the victim’s] neck
or could have choked her to the point of cutting off her breathing
by exerting greater pressure on her neck or windpipe will not
support the conviction of felony assault.” (B.M., at p. 534,
quoting Duke, at p. 303, internal quotation marks omitted.) It
would involve “gross speculation on the part of the jury as to

                                  11
                       PEOPLE v. ALEDAMAT
                 Cuéllar, J., concurring and dissenting


what the appellant would have done if he had not stopped.”
(B.M., at p. 534, quoting Duke, at p. 303, internal quotation
marks omitted.) We emphasized in B.M., however, that it is
appropriate to consider “what harm could have resulted from
the way the object was actually used.” (B.M., at p. 535.) We
further held that “the extent of actual injury or lack of injury” is
relevant, in that it may “suggest that the nature of the object or
the way it was used was not capable of producing or likely to
produce death or serious harm.” (Ibid.)
      Against that backdrop, here is what the jury heard in
Aledamat’s trial:      Aledamat approached a food truck in
downtown Los Angeles and made crude remarks about the truck
owner’s wife. The owner, standing on the sidewalk, reacted in
shock, and removed his apron. From approximately three or
four feet away, Aledamat took a step back, pulled from his right
pocket a box cutter, blade extended — how far it extended, how
large it was, or whether it was locked in its casing, no one
explained — and “thrust” or “pointed” it from his waist towards
the owner, saying, “I’ll kill you.” It was clear that Aledamat had
moved his arm toward the truck owner. But there was no
indication that Aledamat jabbed the box cutter at the owner, or
that he flailed his arms around or advanced as though to cut
him. Naturally, the owner jerked back. The jury heard nothing
about what the owner was wearing or how close the box cutter
actually got to his clothing or body. The box cutter did not touch
him.
      A police officer approached on horse and noticed Aledamat
was holding the box cutter in his right hand “in a forward
direction, about waistline.” The officer said Aledamat was not
lunging; he was “just holding” the box cutter. When Aledamat
saw the officer, he retracted the box cutter and placed it back in

                                  12
                       PEOPLE v. ALEDAMAT
                 Cuéllar, J., concurring and dissenting


his pocket. The truck owner reported to the police that
Aledamat had “pulled a knife” on him.
       On these facts, it may well have been reasonable for the
jury to convict Aledamat of using the box cutter in a way
“capable of causing and likely to cause death or great bodily
injury,” where “great bodily injury,” in turn, is “significant or
substantial.” (CALCRIM No. 875.) Aledamat did, after all, say,
“I’ll kill you” while wielding a sharp blade. But “our task in
analyzing the prejudice from the instructional error is [to
determine] whether any rational fact finder could have come to
the opposite conclusion.” (Mil, supra, 53 Cal.4th at p. 418, first
italics added.)
      Even a brief survey of the evidence presented at trial
reveals that the answer is yes. The People admitted in rebuttal
that Aledamat had not “lunged” at the victim; he had “thrust”
the box cutter out from his waist from a distance of several feet.
(Cf. B.M., supra, 6 Cal.5th at p. 536 [defendant used the knife
only on the victim’s legs, which were covered in a blanket, and
did not attempt to use the knife on any exposed or vulnerable
part of the victim’s body].) The jury received no information
about how far the blade was extended, whether the blade was
locked — such that it would have stayed protruded had it made
contact with the victim — or whether, at the time, it was spring-
operated to snap back into its casing. (Cf. People v. Stutelberg
(2018) 29 Cal.App.5th 314, 322 [finding instructional error
prejudicial in part because “[t]he exact manner in which
Stutelberg used the box cutter against [a victim]” was
“unclear”].) Nor did the jury hear testimony about what the
victim was wearing, which has some bearing on whether a single
thrust likely would cause serious bodily injury. (Cf. B.M., at p.
536 [“[T]he moderate pressure that B.M. applied with the knife

                                  13
                       PEOPLE v. ALEDAMAT
                 Cuéllar, J., concurring and dissenting


was insufficient to pierce the blanket, much less cause serious
bodily injury to [the victim].”].) And there was no evidence to
suggest Aledamat reared for another thrust, that he advanced
on the victim after his initial threat, or that he wielded the box
cutter uncontrollably. (Cf. id. at p. 538 [noting that the butter
knife “was not applied to any vulnerable part of [the victim’s]
body” and there was “no evidence that B.M. wielded the knife
wildly or uncontrollably”]; Stutelberg, at p. 322 [“The jury could
reasonably conclude that his ‘flicking’ motion was more of a
threat, as opposed to an act likely to cause death or great bodily
injury.”].) Indeed, the truck owner refused to confirm his
previous statement to the police, claiming instead not to know
what he had said and repeating only that Aledamat “pulled out
[the box cutter] when we were close to each other.”
       Only by casting aside this record evidence and
supplanting it with its own reasoning can the majority justify
its conclusion. It assumes the jury understood “inherently
deadly” — the inapt instruction — to mean “something,” and
assumes that something is a “common understanding” that a
box cutter is deadly. (Maj. opn., ante, at p. 20.) But it overlooks
the reasonable possibility that the “something” the jury
understood was not “capable of causing and likely to cause death
or great bodily injury” (CALCRIM No. 875), but instead likely to
cut your child during ill-advised play. It assumes that finding
the box cutter deadly “in the colloquial sense of the term” is
sufficient because a box cutter is “readily capable of inflicting
deadly harm.” (Maj. opn., ante, at p. 20.) But it both misstates
the standard — which requires the likelihood of deadly harm —
and misses the holdings of B.M., which require a jury to look at
how the weapon was actually used in context. (B.M., supra, 6
Cal.5th at p. 535.)


                                  14
                      PEOPLE v. ALEDAMAT
                Cuéllar, J., concurring and dissenting


      These assumptions aside, the evidence is sufficient for a
reasonable jury to have found Aledamat guilty under the correct
definition of a deadly weapon. To its credit, the majority
concedes that’s not the standard here. (Maj. opn., ante, at pp.
16–17; Chun, supra, 45 Cal.4th at p. 1201 [stating that we
reverse unless it is clear “beyond a reasonable doubt that the
error did not contribute to the verdict”].) Yet, for whatever
reason, that’s the standard it ends up applying. (See, e.g., maj.
opn., ante, at p. 17 [speculating that it is “unlikely” the jury
would have viewed the instructions as presenting two
alternative methods of finding the box cutter “deadly”]; id. at
pp. 18–19 [arguing it would have been futile for defense counsel
to contest deadliness because a box cutter is “potentially”
deadly].)
                                III.
       We do not undermine a defendant’s Sixth Amendment
right to a fair trial by jury if we hold an instructional error
harmless where the record demonstrates that the jury actually
relied on a different legal theory, untouched by error. (Martinez,
supra, 3 Cal.5th at p. 1226; Chun, supra, 45 Cal.4th at p. 1205.)
Nor do we undermine that guarantee under the “unusual
circumstances” in which “each element was undisputed, the
defense was not prevented from contesting any of the omitted
elements, and overwhelming evidence supports the omitted
element.” (Mil, supra, 53 Cal.4th at p. 414.) In those limited
cases, harmless-error review serves the useful purpose of
preventing us from “setting aside convictions for small errors or
defects that have little, if any, likelihood of having changed the
result of the trial.” (Ibid., quoting Neder, supra, 527 U.S. at
p. 19, internal quotation marks omitted.)



                                 15
                      PEOPLE v. ALEDAMAT
                Cuéllar, J., concurring and dissenting


     This is not such a case, and today the majority dispenses
with the guardrails that help us discern as much. Aledamat
contested the element of force in the assault, which necessarily
extends to the greater degree of force required to convict him of
using a deadly weapon. The People presented little or no
evidence that Aledamat used the box cutter in a way likely to
cause death or great bodily injury, and further confused the jury
by referring to the box cutter as “inherently deadly” and
suggesting heuristics for assessing its dangerousness. (Cf.
People v. Marsh (2019) 37 Cal.App.5th 474, 490 [finding no
prejudice where “the prosecutor only presented the [deadly-as-
used] theory”].) On this record, I cannot conclude beyond a
reasonable doubt that the jury verdict would have been the same
absent the error. (See Neder, supra, 527 U.S. at p. 19; Chun,
supra, 45 Cal.4th at p. 1215.)
      No doubt we’ll continue doing our utmost to tread carefully
when deciding whether an error was harmless under the
Chapman standard. But today the majority loses its footing. I
dissent with respect.
                                             CUÉLLAR, J.


I Concur:
GROBAN, J.




                                 16
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Aledamat
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 20 Cal.App.5th 1149
Rehearing Granted

__________________________________________________________________________________

Opinion No. S248105
Date Filed: August 26, 2019
__________________________________________________________________________________

Court: Superior
County: Los Angeles
Judge: Stephen A. Marcus

__________________________________________________________________________________

Counsel:

Andrea S. Bitar, under appointment by the Supreme Court, for Defendant and Appellant.

Xavier Becerra, Attorney General, Edward C. DuMont, State Solicitor General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Steve Mercer, Timothy L.
O’Hair and Viet H. Nguyen, Deputy Attorneys General, and Michael R. Johnsen, Deputy State Solicitor
General, for Plaintiff and Respondent.

Mary K. McComb, State Public Defender, Barry P. Helft, Chief Deputy State Public Defender, and Samuel
Weiscovitz, Deputy State Public Defender, as Amici Curiae.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Andrea S. Bitar
Bird Rock Law Group
5580 La Jolla Boulevard, #456
La Jolla, CA 92037
(619) 356-1624

Michael R. Johnsen
Deputy State Solicitor General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 269-6090

Samuel Weiscovitz
Deputy State Public Defender
1111 Broadway, Suite 1000
Oakland, CA 94607
(510) 267-3300
