Filed 11/21/18

                           CERTIFIED FOR PUBLICATION


                 COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                    DIVISION ONE

                               STATE OF CALIFORNIA



THE PEOPLE,                                       D073266

        Plaintiff and Respondent,

        v.                                        (Super. Ct. No. SCD270982)

NATHANIEL SHANE STUTELBERG,

        Defendant and Appellant.


        APPEAL from a judgment of the Superior Court of San Diego County,

Leo Valentine, Jr., Judge. Affirmed in part and reversed in part.



        Ava R. Stralla, 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, Michael Pulos and Michael D.

Butera, Deputy Attorneys General, for Plaintiff and Respondent.
       After a heated exchange outside a bar, defendant Nathaniel Stutelberg jabbed a

box cutter at Michelle S. and Chris L., lacerating Michelle's head but not injuring Chris.

Among other things, the jury convicted Stutelberg of mayhem with a deadly weapon

enhancement as to Michelle (Pen. Code, §§ 203, 12022, subd. (b)(1))1 and assault with a

deadly weapon as to Chris (§ 245, subd. (a)(1)). The sole issue on appeal is whether

erroneous jury instructions defining a "deadly weapon" require reversal of either of

Stutelberg's convictions.

       As to the offense against Michelle, we conclude the instructional error was

harmless beyond a reasonable doubt. We have no difficulty deciding from the record that

the jury would have reached the same verdict but for the error. We reach a different

result as to the crime involving Chris. Stutelberg's use of the box cutter in that encounter

is more nebulous, and on the record before us we cannot conclude that the instructional

error was harmless beyond a reasonable doubt. Accordingly, we reverse his conviction

for assault with a deadly weapon in count 3 but otherwise affirm the judgment.

                   FACTUAL AND PROCEDURAL BACKGROUND

       Stutelberg arrived at a bar one evening, intoxicated and wearing no shirt. He was

yelling and arguing with the bouncer and assistant manager, who were denying him entry

into the bar. A few minutes later, Stutelberg retreated from the bar but continued to yell

at the bouncer and assistant manager while standing next to his friend's car. Michelle, a

bar patron, approached the female passenger sitting in the parked car. She urged the



1      Further statutory references are to the Penal Code, unless otherwise indicated.
                                             2
woman to take Stutelberg home to prevent police from being called. In response, the

woman left the car and ran towards Michelle, who held out her right hand and told the

woman to "back up."

       Michelle's friend Chris and Missael O., a bar employee, walked toward Michelle.

Stutelberg started "flicking" a box cutter toward their faces. Chris yelled that he saw a

knife. Stutelberg swung a fist at Chris but missed. Michelle grabbed Stutelberg and

pushed him into a light pole. Stutelberg punched Michelle and cut the back of her head

with the box cutter.

       The San Diego County District Attorney charged Stutelberg by amended

information with aggravated mayhem against Michelle (§ 205, count 1), attempted

aggravated mayhem against Chris (§§ 205, 664, count 2), assault with a deadly weapon

against Chris (§ 245, subd. (a)(1), count 3), attempted aggravated mayhem against

Missael (§§ 205, 664, count 4), and assault with a deadly weapon against Missael (§ 245,

subd. (a)(1), count 5). Counts 1, 2, and 4 carried an enhancement for personal use of a

deadly or dangerous weapon (§ 12022, subd. (b)(1)). All five counts were classified as

"serious" felonies under section 1192.7, subdivision (c)(23) based on Stutelberg's alleged

personal use of a deadly or dangerous weapon. Count 1 was additionally classified as a

serious felony based on the allegation Stutelberg personally inflicted great bodily injury

on Michelle (§ 1192.7, subd. (c)(8)).

       The jury convicted Stutelberg of mayhem (§ 203), a lesser included offense of

count 1 against Michelle and found true the deadly weapon enhancement and great bodily

injury and deadly weapon allegations attached to that count. It also convicted him of

                                             3
assault with a deadly weapon (§ 245, subd. (a)(1)) on count 3 against Chris, finding the

deadly weapon allegation true. It acquitted on counts 2, 4, and 5.

       The court sentenced Stutelberg to a three-year prison term on count 1, consisting

of the two-year low term plus a year for the deadly weapon enhancement. It imposed a

concurrent two-year low term sentence on count 3.

                                        DISCUSSION

       To consider the assault with a deadly weapon charge in count 3 and the deadly

weapon enhancement in count 1, the jury had to determine whether the box cutter

Stutelberg used was a deadly weapon. The court instructed jurors under CALCRIM

No. 875, the assault instruction, in part that:

           "A deadly weapon other than a firearm is any object, instrument, or
           weapon that is inherently deadly or one that is used in such a way
           that it is capable of causing and likely to cause death or great bodily
           injury."

It also provided the jury with CALCRIM No. 3145 as to the enhancement, which

contained similar language:

           "A deadly or dangerous weapon is any object, instrument, or
           weapon, that is inherently deadly or dangerous, or one that is used in
           such a way that it is capable of causing and likely to cause death or
           great bodily injury. [¶] In deciding whether an object is a deadly
           weapon, consider all the surrounding circumstances, including when
           and where the object was possessed and any other evidence that
           indicates whether the object would be used for a dangerous, rather
           than a harmless, purpose."

       These instructions are flawed because they suggest the jury might properly

conclude that a box cutter is inherently dangerous. A box cutter, however, is not an

inherently deadly weapon as a matter of law. (People v. McCoy (1944) 25 Cal.2d 177,

                                                  4
188.) For the jury to properly find that Stutelberg used a deadly weapon under the facts

of this case, it would have needed to rely on the second theory—that he used the box

cutter in a way capable of causing and likely to cause death or great bodily injury.

       The parties do not dispute that the inclusion of language regarding an "inherently

deadly weapon" in CALCRIM No. 3145 was instructional error. Instead, they disagree

on whether the error was prejudicial. That narrow question turns on a two-step inquiry:

(1) whether the error was factual error or legal error; and (2) what prejudice standard

applies.

       As we explain, the instructional error in this case is legal in nature, and we

therefore employ the traditional Chapman standard to evaluate prejudice. (Chapman v.

California (1967) 386 U.S. 18 (Chapman).) Applying that standard to Stutelberg's

convictions, we conclude the error was harmless as to his conviction in count 1 involving

Michelle but prejudicial as to his conviction in count 3 involving Chris. Accordingly, we

reverse the judgment of conviction as to count 3 and remand for further proceedings.

1.     The instructions presented a legally (rather than factually) invalid theory

       As noted, the jury in this case should not have been instructed on an "inherently

dangerous" weapon. The only weapon involved in the case was a box cutter, and it is not

inherently dangerous as a matter of law. The threshold question is whether this error was

factual or legal. Stutelberg contends the error was legal, whereas the People claim the

error was factual. We conclude Stutelberg is correct.

       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.

                                              5
(People v. Guiton (1993) 4 Cal.4th 1116, 1125 (Guiton).) 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.

(Id. at p. 1125, quoting Griffin v. United States (1991) 502 U.S. 46, 59.) 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. (Guiton, at

p. 1125, quoting Griffin, at p. 59.)

       The People argue the error was factual because the jury was simply given

otherwise correct instructions about a legal theory that was inapplicable to the facts of the

case. In other words, because a box cutter is not inherently dangerous, the jury was

presented with a factually inapplicable theory even though the instruction may have been

a correct statement of law in the abstract.

       We disagree. An "inherently deadly or dangerous" weapon is a term of art

describing objects that are deadly or dangerous in "the ordinary use for which they are

designed," that is, weapons that have no practical nondeadly purpose. (People v. Perez

(2018) 4 Cal.5th 1055, 1065.) 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, rather than factual, error.




                                              6
       We agree with People v. Aledamat (2018) 20 Cal.App.5th 1149, review granted

July 5, 2018, S248105 (Aledamat), on this narrow issue.2 Aledamat, another case

involving a box cutter, concluded that an instruction defining "dangerous weapon" to

include an " 'inherently dangerous' " object presented "a legally (rather than factually)

invalid theory." (Id. at p. 1154.) As the opinion persuasively reasons,

          "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.' [Citation.] This is functionally indistinguishable
          from a 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." (Ibid.)3

2.     We evaluate prejudice under the Chapman standard

       The parties agree that we apply the Chapman standard (Chapman, supra, 386 U.S.

at p. 24) to evaluate an instruction that improperly defines an element of a charged

offense. (See People v. Brown (2012) 210 Cal.App.4th 1, 12–13 (Brown) [applying

Chapman to evaluate prejudice from an instruction allowing the jury to incorrectly




2      The Supreme Court granted review in Aledamat to address the appropriate
standard for evaluating prejudice resulting from legal error. As we explain, although we
agree with Aledamat that the error was of a legal nature, we part ways in deciding the
appropriate standard for prejudice. Pursuant to California Rules of Court, rule 8.1115,
subdivision (e)(1), we cite Aledamat solely for its persuasive value.

3      We disagree with the People's claim that this case is "strikingly similar" to Guiton,
supra, 4 Cal.4th 1116. In Guiton, there was no risk the jury would have convicted on the
factually inapplicable theory that the defendant had sold cocaine. Although the People
are correct that the jury was never instructed that a box cutter was an inherently deadly
weapon, it may have employed a common understanding of the term to rely on a legally
inapplicable theory.
                                              7
classify a BB gun as an inherently deadly weapon].) The error here implicates

Stutelberg's due process rights by lessening the prosecution's burden to prove an element

of a crime. (See People v. Harris (1994) 9 Cal.4th 407, 438 ["jury instructions in a state

criminal trial omitting the requirement of proof of every element of a crime beyond a

reasonable doubt are erroneous under the Fourteenth Amendment's due process clause"].)

Pursuant to Chapman, instructional error requires reversal unless it appears beyond a

reasonable doubt that it did not contribute to the verdict. (Harris, at p. 424.)

       Where the parties disagree is whether we evaluate the particular type of

instructional error here under a heightened Chapman inquiry. Citing Aledamat, supra,

20 Cal.App.5th 1149, 1154, Stutelberg claims reversal is required absent an affirmative

showing that no juror relied on the invalid theory. The People, in turn, maintain that

Aledamat was wrongly decided. Aledamat is currently pending review on whether its

affirmative showing standard is a proper interpretation of Chapman. Absent further

guidance from the Supreme Court, we believe the traditional "harmless beyond a

reasonable doubt" framework is the proper standard to apply.

       As recently as 2017, the Supreme Court held that error in instructing on the

elements of a crime is harmless "so long as the error does not vitiate all of the jury's

findings" (People v. Merritt (2017) 2 Cal.5th 819, 829, 831 (Merritt), italics added), i.e.,

if "it is clear beyond a reasonable doubt that a rational jury would have rendered the same

verdict absent the error." (Id. at p. 831.) The Supreme Court likewise recently held that

instructing on an invalid legal theory may be harmless when " 'other aspects of the verdict

or the evidence leave no reasonable doubt that the jury made findings necessary' " to

                                              8
convict under a different, valid legal theory. (In re Martinez (2017) 3 Cal.5th 1216,

1226, quoting People v. Chun (2009) 45 Cal.4th 1172, 1205.) Chun, like many cases

before it, utilized the traditional Chapman inquiry into whether an instructional error was

harmless beyond a reasonable doubt. (Chun, at p. 1201; see Neder v. United States

(1999) 527 U.S. 1, 4 ["A constitutional error is harmless when it appears 'beyond a

reasonable doubt' that the error . . . did not contribute to the verdict obtained."]; see also

People v. Swain (1996) 12 Cal.4th 593, 607 ["beyond a reasonable doubt" is the standard

"traditionally applied to misinstruction on the elements of an offense"].) We believe this

time-tested approach is appropriate here.4

       As a practical matter, evidence regarding the effect of statements or events on the

mental processes of a juror is inadmissible to impeach a verdict. (Evid. Code, § 1150,

subd. (a).) To conclude as Stutelberg urges that Chapman, supra, 386 U.S. 18 requires

an affirmative showing of how the jury reached its decision in this context would erect a

nearly insurmountable barrier, creating in effect a rule of per se reversal. Aledamat

recognized that the heightened version of the Chapman test it chose to employ was

"arguably in tension with more recent cases" including the Supreme Court's decision in

Merritt, supra, 2 Cal.5th 819. (Aledamat, supra, 20 Cal.App.5th at p. 1154.) The court



4       As the People explain, applying the usual Chapman standard does not necessarily
conflict with Guiton. Guiton acknowledged that instructional error of a legal nature
might be found harmless in certain cases, where "it is possible to determine from other
portions of the verdict that the jury necessarily found the defendant guilty on the proper
theory." (Guiton, supra, 4 Cal.4th at p. 1130.) Because that case dealt with factual rather
than legal error, it left the appropriate standard of prejudice for the latter to "future cases."
(Id. at p. 1131.)
                                               9
believed, however, that this heightened standard was compelled by Guiton, supra, 4

Cal.4th 1116. For reasons we have explained (ante, fn. 4), we think Guiton intentionally

reserved articulation of the precise standard for future cases. The language Aledamat

treats as binding precedent (see 20 Cal.App.5th at p. 1154) was, at best, dicta. Guided by

caselaw decided since Guiton, we choose to follow the traditional Chapman standard,

which allows us to affirm where a review of the entire record demonstrates beyond a

reasonable doubt that the error did not change the outcome.

3.     Applying Chapman reveals harmless error as to count 1 but prejudice as to
       count 3

       The flawed deadly weapon instruction related to (1) the one-year deadly weapon

enhancement for the mayhem charge (as to Michelle); and (2) the assault with a deadly

weapon charge (as to Chris). Because the jury received different evidence and testimony

as to each encounter, we must independently analyze prejudice as to each conviction.

       a.     Michelle (count 1, mayhem with a deadly weapon enhancement)

       The error was harmless as to the deadly weapon enhancement for the mayhem

conviction. The evidence and testimony clearly indicated that Stutelberg sliced the back

of Michelle's head from her left temple to the bottom of her hairline during a bar fight.

After he swung at Chris but missed, Michelle pushed him into a light pole, sparking a

physical altercation between Stutelberg and Michelle. Several witnesses testified that

they saw him stab the back of Michelle's head with a box cutter. Stutelberg conceded

using the box cutter to lacerate Michelle but claimed he did so in self-defense.




                                             10
       The error as to Michelle is similar to the one held harmless in Brown, supra, 210

Cal.App.4th 1. There, the court of appeal found that an improper jury instruction

permitted the jury to convict the defendant of assault with a deadly weapon on the basis

that the BB gun was "inherently dangerous," a lesser standard than "inherently deadly" as

the CALCRIM instruction requires. (Id. at p. 11.) Nonetheless, the court ruled the error

was harmless:

          "[T]here was ample evidence at trial Brown used the BB gun in a
          manner capable of inflicting and likely to inflict great bodily injury.
          That evidence, as well as the arguments of counsel, leave no
          reasonable doubt the jury found Brown guilty on this basis and not
          because it concluded the BB gun, regardless of the manner in which
          it was used, was 'inherently dangerous.' " (Id. at p. 13.)

       The evidence and the arguments of counsel here likewise created no reasonable

doubt as to whether the jury would decide Stutelberg used the box cutter as a deadly

weapon against Michelle under the proper definition. Using a sharp box cutter to stab a

victim's head undoubtedly qualifies as using the item "in such a way that it is capable of

causing and likely to cause death or great bodily injury," as shown by the bodily injury

that resulted. (Brown, supra, 210 Cal.App.4th at p. 11.) The wound bled, soaking

Michelle's shirt. She required stitches and was still suffering from residual nerve damage

at trial, roughly eight months after the incident.

       The prosecutor's closing argument likewise did not suggest Stutelberg suffered any

prejudice. As the parties agree, the prosecutor did not expressly refer to the "inherently

deadly weapon" theory. Nor did his other statements invite the jury to classify the box

cutter as inherently deadly. Stutelberg is correct that the prosecutor stated "personal use


                                              11
of a deadly weapon" means that "when he committed the crime, he was armed with a

razor blade." But the prosecutor went on to discuss Stutelberg's use of the razor blade to

"swipe" at the victims and to "slash open" Michelle's face. The statements in their

totality did not direct the jury to conclude the box cutter was inherently deadly by default;

rather, they point to ample grounds for the jury to infer that Stutelberg used the box cutter

to "swipe" and "slash open" victims in a manner likely to cause or causing injury. 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.

       b.     Chris (count 3, assault with a deadly weapon)

       We reach a different result as to Stutelberg's assault with a deadly weapon

conviction in count 3 involving Chris. Unlike Michelle, whom Stutelberg severely

injured, Chris was not harmed. Stutelberg "swung" at Chris but missed. It is unclear

which arm Stutelberg swung and if he was holding the box cutter in that same hand. On

cross-examination, Chris admitted that it "wasn't as though [Stutelberg] had a razor in his

hand and he's jabbing at [his] face." Although Missael testified that Stutelberg jabbed a

box cutter at both Chris and him in a manner likely to cause great bodily injury, the jury

apparently disbelieved his testimony, acquitting Stutelberg of assault with a deadly

weapon against Missael. The exact manner in which Stutelberg used the box cutter

against Chris is thus unclear. 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

                                             12
injury. Under these circumstances, we cannot say that the court's error in instructing the

jury regarding an inherently dangerous weapon was harmless beyond a reasonable doubt.

       The error is prejudicial for reasons similar to those found in People v. Hudson

(2006) 38 Cal.4th 1002. There, the jury convicted the defendant of eluding a pursuing

police officer, a crime requiring the officer's vehicle to be "distinctively marked." (Id. at

p. 1006.) The jury, however, was not told that a "distinctively marked" police vehicle

must have at least one additional police-like feature besides a red light and a siren. (Id. at

p. 1013.) The Supreme Court reversed the conviction because the jury could have

wrongly classified the police car as "distinctively marked" based solely on its light and

siren. (Id. at p. 1014). Similarly, the flawed instruction in this case could have caused

the jury to misclassify the box cutter as an "inherently" deadly weapon. Given the factual

uncertainty as to whether Stutelberg used the box cutter in a manner likely to cause Chris

serious physical injury, we cannot say beyond a reasonable doubt that a properly

instructed jury would have found that Stutelberg necessarily used the box cutter in a

deadly or dangerous manner. Accordingly, the conviction on count 3 must be reversed.5




5       Stutelberg suggests that reversal will require the trial court to recalculate certain
fines and fees ordered at sentencing. These are issues for the trial court to address in the
first instance following retrial, if any, on count 3. If the prosecution does not retry
Stutelberg on count 3, or if he were acquitted on retrial, the court would need to
recalculate the restitution fine (§ 1202.4, subd. (b)(1)), suspended parole revocation fine
(§ 1202.45), victim restitution (§ 1202.4, subd. (f)), and levied fees (§ 1465.8; Gov.
Code, § 70373) insofar as they are predicated on two felony convictions.
                                             13
                                      DISPOSITION

       The judgment of conviction as to count 3 is reversed and the matter is remanded

for further proceedings consistent with this opinion, which may include retrial on

count 3 and/or recalculation of applicable fines and fees. In all other respects, the

judgment is affirmed.



                                                                                   DATO, J.
WE CONCUR:



IRION, Acting P. J.



GUERRERO, J.




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