Filed 3/1/18
               CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                SECOND APPELLATE DISTRICT

                         DIVISION TWO


THE PEOPLE,                               B282911

       Plaintiff and Respondent,          (Los Angeles County
                                          Super. Ct. No. BA451225)
       v.

YAZAN ALEDAMAT,

       Defendant and Appellant.


      APPEAL from a judgment of the Superior Court of Los
Angeles County. Stephen A. Marcus, Judge. Affirmed in part,
reversed in part, and remanded.

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

      Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Steve Mercer, Timothy L. O’Hair and Viet H.
Nguyen Deputy Attorneys General, for Plaintiff and Respondent.


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       Yazan Aledamat (defendant) thrust the exposed blade of a
box-cutter toward a man while threatening, “I’ll kill you.” A jury
convicted him of assault with a deadly weapon and making
criminal threats. Defendant argues that the assault conviction is
invalid because the trial court wrongly instructed the jury that a
“deadly weapon” includes an “inherently deadly” weapon when a
box cutter is not an inherently deadly weapon as a matter of law.
(See People v. McCoy (1944) 25 Cal.2d 177, 188 (McCoy).)
Defendant is correct. Further, because this error placed a legally
invalid theory before the jury, we are compelled to reverse this
conviction as well as the enhancement for personal use of a
deadly weapon, which used the same inapplicable definition of
“deadly weapon.”
         FACTS AND PROCEDURAL BACKGROUND
I.     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.




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II.    Procedural Background
       The People charged defendant with (1) assault with a
deadly weapon (Pen. Code, § 245, subd. (a)(1)),1 and (2) making a
criminal threat (§ 422). The People further alleged that
defendant personally used a deadly and dangerous weapon
(§ 12022, subd. (b)(1)). Additionally, the People alleged
defendant’s 2014 robbery conviction constituted a prior “strike”
within the meaning of our Three Strikes Law (§§ 1170.12, subds.
(a)-(d), 667, subds. (b)-(j)) and a prior serious felony (§ 667, subd.
(a)(1)).
       The matter proceeded to a jury trial. When instructing the
jury on assault with a deadly weapon and on the personal use
enhancement, the trial 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 or likely to
cause death or great bodily injury.”
       During the prosecutor’s initial closing argument, he told
the jury that a “box cutter” was a “deadly weapon” because “[i]f [it
is] used in a way to cause harm, it would cause harm.” During
his rebuttal argument, he asserted that the box-cutter was an
“inherently deadly weapon” because “you wouldn’t want your
children playing with” it.
       The jury returned guilty verdicts on both counts, and found
the enhancement allegation to be true. After defendant admitted
his prior conviction, the trial court sentenced defendant to 12
years in prison on the criminal threats count, comprised of a base
sentence of six years (three years, doubled due to the prior



1     All further statutory references are to the Penal Code
unless otherwise indicated.




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strike), plus five years for the prior serious felony, plus one year
for the personal use of a deadly weapon. The court imposed a
concurrent, six-year sentence on the assault count, comprised of a
base sentence of six years (three years, doubled due to the prior
strike).
       Defendant filed a timely notice of appeal.
                            DISCUSSION
       For purposes of both assault with a deadly weapon and the
enhancement for personal use of a deadly weapon, an object or
instrument can be a “deadly weapon” if it is either (1) “inherently
deadly” (or “deadly per se” or a “deadly weapon[] as a matter of
law”) because it is “‘“dangerous or deadly” to others in the
ordinary use for which [it is] designed,’” or (2) “used . . . in a
manner” “capable of” and “likely to produce[] death or great
bodily injury,” taking into account “the nature of the object, the
manner in which it is used, and all other facts relevant to the
issue.” (People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029
(Aguilar); People v. Graham (1969) 71 Cal.2d 303, 327-328; In re
Jose R. (1982) 137 Cal.App.3d 269, 275-276; CALCRIM Nos. 875,
3130)].) A box cutter is a type of knife, and “a knife”—because it
is designed to cut things and not people—“is not an inherently
dangerous or deadly instrument as a matter of law.” (McCoy,
supra, 25 Cal.2d at p. 188.)
       Against the backdrop of this law, defendant argues that the
trial court erred in instructing the jury that it could find the box
cutter to be an “inherently deadly” weapon. Although the
instruction the trial court gave is correct in the abstract (People
v. Velasquez (2012) 211 Cal.App.4th 1170, 1176), the People agree
that it was inapplicable here, where the weapon was a box cutter.




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Employing de novo review (People v. Manriquez (2005) 37 Cal.4th
547, 581), we also agree it was error to give this instruction.
       The remaining issue is whether this instructional error was
prejudicial. This issue turns on whether the error involves the
presentation of a legally invalid theory to the jury or the
presentation of a factually invalid theory.
       When an appellate court determines that a trial court has
presented a jury with two theories supporting a conviction—one
legally valid and one legally invalid—the conviction must be
reversed “absent a basis in the record to find that the verdict was
actually based on the valid ground.” (People v. Guiton (1993)
4 Cal.4th 1116, 1122, 1129.) That basis exists only when the jury
has “actually” relied upon the valid theory (Aguilar, supra,
16 Cal.4th at p. 1034; People v. Swain (1996) 12 Cal.4th 593,
607); absent such proof, the conviction must be overturned—even
if the evidence supporting the valid theory was overwhelming
(People v. Sanchez (2001) 86 Cal.App.4th 970, 981-982). By
contrast, when an appellate court determines that a trial court
has presented a jury with two legally valid theories supporting a
conviction—one factually valid (because it is supported by
sufficient evidence) and one factually invalid (because it is not)—
the conviction must be affirmed unless the “record affirmatively
demonstrates . . . that the jury did in fact rely on the [factually]
unsupported ground.” (Guiton, at p. 1129.) 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. (Id. at p. 1126.)
       We conclude that the trial court’s instruction defining a
“dangerous weapon” to include an “inherently dangerous” object
entails the presentation of a legally (rather than factually)




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invalid theory. 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.” (McCoy, supra,
25 Cal.2d at p. 188.) This is functionally indistinguishable from
the situation in which a jury is instructed that a particular felony
can be a predicate for felony murder when, as a matter of law, it
cannot be. Because this latter situation involves the presentation
of a legally invalid theory (People v. Smith (1984) 35 Cal.3d 798,
808), so does this case.
       Further, we must vacate the assault conviction because
there is no basis in the record for concluding that the jury relied
on the alternative definition of “deadly weapon” (that is, the
definition looking to how a non-inherently dangerous weapon was
actually used). (People v. Smith (1998) 62 Cal.App.4th 1233,
1239 [reversal required where appellate court “cannot discern
from the record which theory provided the basis for the jury’s
determination of guilt”].) Indeed, the prosecutor in his rebuttal
argument affirmatively urged the jury to rely on the legally
invalid theory when he called the box cutter an “inherently
deadly weapon.” And because the trial court used the same
definition of “deadly weapon” for both the assault charge and the
personal use enhancement, both suffer from the same defect, and
both must be vacated.
       We recognize 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, 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 p. 821-822, 830-




                                 6
832; Neder v. United States (1999) 527 U.S. 1, 17-18.) That test
would certainly be satisfied here, where defendant never
disputed that the box cutter was being used as a deadly weapon
and where the evidence of such use is overwhelming. However,
the case law we cite in this case is directly on point and remains
binding on us. (Auto Equity Sales, Inc. v. Superior Court (1962)
57 Cal.2d 450, 455-456.) Any revisiting or reconsideration of this
case law is for our Supreme Court, not us.
                          DISPOSITION
      Defendant’s convictions for assault with a deadly weapon,
and the one-year enhancement for personal use of a deadly
weapon applied to the criminal threats sentence, are vacated.
Otherwise, the criminal threats conviction and sentence are
affirmed. We remand to the trial court for the People to
determine whether to retry the defendant on the vacated crime
and enhancement.
      CERTIFIED FOR PUBLICATION.

                                    ______________________, J.
                                    HOFFSTADT
We concur:

_________________________, P. J.
LUI

_________________________, J.
ASHMANN-GERST




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