Filed 6/27/22 P. v. Beltran CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Kern County. Chad A. Louie, Judge.

Jason Szydlik, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Robert Gezi, Deputy Attorneys General, for Plaintiff and] Respondent.

-ooOoo-

Appellant and defendant Octaviano Leon Beltran was convicted by a jury of criminal threats and possession of a deadly weapon with the intent to commit an assault. On appeal, defendant claims that the trial court erred in referring to an inherently deadly weapon in CALCRIM No. 2503 because a knife is not, as a matter of law, an inherently deadly weapon. Defendant also contends that the trial court abused its discretion when it denied his motion to reduce his criminal threats conviction to a misdemeanor. The People acknowledge instructional error while contending that the error was harmless beyond a reasonable doubt. We find any instructional error was not prejudicial and affirm the judgment of the trial court.

FACTS

Procedural History

The Kern County District Attorney filed an information on February 24, 2021, charging defendant with criminal threats, a felony (Pen. Code, § 422; count 1)[1] and possession of a deadly weapon with the intent to commit an assault, a misdemeanor (§ 17500; count 2). On May 12, 2021, after a two-day trial, the jury found defendant guilty on both counts.[2] On June 8, 2021, the trial court denied defendant’s motion to reduce count 1 to a misdemeanor under section 17. The trial court then proceeded to suspend imposition of sentence on count 1, placed defendant on two years of probation, and ordered defendant to serve one year in jail as a condition of probation. As to count 2, the trial court imposed a 180-day jail term to be served concurrently with the jail term on count 1. Defendant filed a timely notice of appeal on June 9, 2021.

Trial Testimony

On January 25, 2021, defendant began yelling and hitting an interior wall that he shared with his roommate, I.V. Defendant yelled at I.V. to open his bedroom door so that he could kill I.V. with the knife in his hand. Defendant then asked I.V. to kill him because defendant’s mom was waiting to have a vigil for him. I.V. called the owner of the home and other roommate, Francisco Mojarro, who called law enforcement. I.V. remained in his bedroom with the door shut until law enforcement arrived because he believed defendant would stab him.

McFarland Police Officer Leticia Hernandez and her partner Officer Alwaw arrived approximately five to eight minutes after Mojarro dialed 911. Mojarro walked past defendant as he went to open the door for the police officers, and he observed defendant holding a knife by his right leg and standing next to I.V.’s bedroom door. Hernandez contacted Mojarro and defendant before searching defendant’s bedroom. A kitchen knife was found under defendant’s mattress.

Hernandez observed that defendant was hyperactive, talking too fast, and had difficulty standing still. Defendant disclosed methamphetamine use without specifying the time or recency of his use. Hernandez believed defendant was under the influence of methamphetamine, and she was aware that a person could feel the effects of methamphetamine for days after ingesting it. Alwaw arrested defendant for criminal threats. Defendant’s blood was drawn at a medical facility, which returned negative results for amphetamines, benzodiazepines, cocaine, opiates, and phencyclidine.

DISCUSSION

1. Instructional Error

Defendant was charged with possession of a deadly weapon, specifically a kitchen knife, with the intent to commit an assault against I.V. Defendant alleges prejudicial error based on the following italicized language in the CALCRIM No. 2503 instruction given to the jury: “A deadly weapon 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.” (Italics added.) Defendant contends that the trial court’s instruction was in error because kitchen knives are not inherently deadly as a matter of law.

As confirmed in People v. Aledamat (2019) 8 Cal.5th 1 (Aledamat), it is improper to instruct a jury with this language if the object in question is not inherently deadly. (Id. at pp. 6, 8.) The reason is because jurors could be misled to believe they have the option of deciding whether the object is “inherently deadly,” based on their lay understanding of the term, when as a matter of law it is not. (Id. at p. 8.) “Because a knife can be, and usually is, used for innocent purposes, it is not among the few objects that are inherently deadly weapons.” (Id. at p. 6.) The People concede an instructional error occurred. The only issue is whether defendant suffered prejudice.

In Aledamat, the appellant had attacked a man with a box cutter while threatening to kill him. A jury convicted him of making criminal threats (§ 422) and assault with a deadly weapon in violation of section 245, subdivision (a). (Aledamat, supra, 8 Cal.5th at pp. 4–5.) The jury was instructed with CALCRIM No. 875, which contains the same definition of a deadly weapon used in this case pursuant to CALCRIM No. 2503. (Id. at p. 4.)

On appeal in Division Two of the Second Appellate District, the appellant complained of the “inherently deadly” language in the pattern instruction. The appellate court agreed with his argument, noting a box cutter is a type of knife that is “ ‘designed to cut things and not people’ ” and cannot be classified as an inherently deadly weapon. (Aledamat, supra, 8 Cal.5th at p. 6.) Because the jury had been presented with two theories of guilt, one of which was legally invalid (i.e., “that the box cutter was inherently deadly”), the error was deemed prejudicial. (Id. at pp. 3–4.)

The California Supreme Court agreed with the appellate court’s determination of error, but concluded it had applied an unduly stringent test for prejudice. (Aledamat, supra, 8 Cal.5th at pp. 6–13.) The opinion holds that “alternative-theory error is subject to the more general Chapman harmless error test.” (Aledamat, supra, at p. 13, citing Chapman v. California (1967) 386 U.S. 18 (Chapman).) “The reviewing court must reverse the conviction unless, after examining the entire cause, including the evidence, and considering all relevant circumstances, it determines the error was harmless beyond a reasonable doubt.” (Aledamat, supra, at p. 13.) Applying the Chapman standard, the high court found the instructional error harmless and thus reversed the appellate court’s decision. (Aledamat, supra, at pp 13–16.)

In the Supreme Court’s view, the jury would not have understood the instruction to permit two separate ways it could find the box cutter to be a deadly weapon. (Aledamat, supra, 8 Cal.5th at pp. 13–14.) First, the court concluded the definition’s juxtaposition of inherently deadly objects with those that are “ ‘capable of causing and likely to cause death or … great bodily injury’ ” “at least indicates what the ‘inherently deadly’ language was driving at.” (Ibid.) Second, in relation to the deadly weapon enhancement, the jury was instructed to consider “ ‘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.’ ” (Id. at p. 14; see id. at p. 21 (conc. & dis. opn. of Cuéllar, J.).) Given this instruction, the court determined it was unlikely the jury would not have considered how the box cutter was used in reaching its verdict on the assault charge. (Aledamat, supra, at p. 14.) Finally, the court noted the jury necessarily found true the substantive elements of the offense of assault with a deadly weapon and, even assuming the jury applied a common, colloquial understanding of “ ‘inherently deadly,’ ” necessarily found the box cutter was both capable of inflicting deadly harm and was used as a weapon. (Id. at p. 15.) Given these findings, the court determined the jury necessarily found the box cutter was used in a way that was capable of causing and likely to cause death or great bodily injury. (Ibid.)

In the present case, the instruction given regarding a deadly weapon is identical to that given in Aledamat. (Aledamat, supra, 8 Cal.5th at pp. 13–14.) As in Aledamat, we find the inapplicable reference to inherently deadly objects to be harmless beyond a reasonable doubt because it is clear the “inherently deadly” language did not contribute to the jury’s verdict. (Id. at p. 15.) The trial court instructed the jury that it must “consider all the surrounding circumstances, including when and where the object was possessed, … and any other evidence that indicates that the object would be used for a dangerous, rather than a harmless, purpose” “n deciding whether an object is a deadly weapon.” In view of this instruction, the jury likely understood it needed to look at the totality of the circumstances in determining whether the kitchen knife was “inherently deadly or dangerous” or “used in such a way that it is capable of causing and likely to cause death or great bodily injury.” (See [i]People v. Sanchez (2001) 26 Cal.4th 834, 852 [“Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court’s instructions.”].)

Defendant argues that the jurors could have found that the kitchen knife was dangerous in its ordinary use because users may sometimes cut themselves. It is true that a knife, box cutter, and many other tools have the potential to cause physical injury depending on how they are used. (See People v. McCoy (1944) 25 Cal.2d 177, 188 [“[w]hile 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”].) However, the ordinary use of an everyday object that may occasionally lead to a minor cut cannot be reasonably characterized as the use a deadly or dangerous weapon. In our view, “it seems unlikely the jury would simply view the [kitchen knife] as inherently deadly without considering the circumstances,” including how defendant would use it. (See Aledamat, supra, 8 Cal.5th at p. 14.)

In addition, the jury convicted defendant of making a criminal threat in violation of section 422. The record demonstrates that defendant stated he had a knife in his hand and wanted to kill I.V., Mojarro testified that he saw defendant holding a knife in his hand while he was standing near I.V.’s door just minutes later, and Hernandez located a kitchen knife under defendant’s mattress. The record also demonstrated that I.V. was afraid that defendant would in fact stab him. The criminal threat conviction is premised on defendant threatening to unlawfully kill or cause great bodily injury to I.V. with the kitchen knife and causing I.V. to be in fear for his safety. (See § 422.)

Therefore, it would have been impossible for the jury to convict defendant of criminal threats on this basis without necessarily finding he used the kitchen knife in such a way that is capable of causing and likely to cause death or great bodily injury. Although defendant argues that he never actually used the kitchen knife in such a way that would cause death or great bodily injury, the elements of the possession offense merely require an intent to use the weapon. It is clear beyond a reasonable doubt that defendant was convicted based on how he was using the kitchen knife, not its inherent nature.

Finally, we do not believe that the jury’s changes to its verdict and need for a new verdict form on count 2 demonstrates that the jury would have reached a different verdict without the improper instruction. There is no suggestion in the notes sent by the jury that it had difficulty with the deadly weapon instruction or that the prosecution improperly argued that the kitchen knife was an inherently deadly weapon. We cannot envision a scenario in which the jury would have made a contrary finding but for the instructional error. Accordingly, we are confident, beyond a reasonable doubt, that the erroneous mention of inherently deadly weapons in the jury instruction did not contribute to the jury’s verdict. The error was harmless.

2. Denial of Motion to Reduce Criminal Threats Conviction

A violation of section 422 is a wobbler offense that may be punished as either a misdemeanor or felony. The trial court has discretion to reduce a wobbler offense that was charged as a felony to a misdemeanor. (§ 17, subd. (b).) Defendant filed a request that his felony conviction for making criminal threats be reduced to a misdemeanor under subdivision (b)(3) of section 17.

We review the trial court’s denial of a motion to reduce the felony conviction to a misdemeanor for abuse of discretion. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 981 (Alvarez).) “ ‘The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.’ ” (Id. at pp. 977–978.)

The following factors are relevant in the court’s exercise of discretion under section 17, subdivision (b): “ ‘[T]he nature and circumstances of the offense, the defendant’s appreciation of and attitude toward the offense, [and] his traits of character as evidenced by his behavior and demeanor at the trial.’ ” (Alvarez, supra, 14 Cal.4th at p. 978.) “When appropriate, judges should also consider the general objectives of sentencing,” which include protecting society, punishing the defendant, encouraging the defendant to lead a law-abiding life in the future, deterring the defendant from future offenses, deterring others from criminal conduct by demonstrating its consequences, preventing the defendant from committing new crimes by isolating the defendant for the period of incarceration, securing restitution for the victims of crime, and achieving uniformity in sentencing. (Ibid. & fn. 5.)

Defendant contends the trial court abused its discretion when it declined to reduce his felony conviction for making criminal threats to a misdemeanor. In support of this contention, defendant argues that the trial court denied his request based on an erroneous finding that he personally used a deadly, dangerous weapon.

In denying defendant’s motion to reduce his conviction to a misdemeanor, the trial court explained:

“Given the fact that the felony charge in Count 1 is a wobbler and that it could be reduced to a misdemeanor, given the fact that the evidence that was presented was that when the defendant committed the criminal threat alleged in Count 1 he used a deadly weapon, that being a knife, w[h]ich was then located hiding under his mattress in his bedroom. Given the fact he personally used a deadly, dangerous weapon in the commission of the criminal threats, I’m not inclined to reduce Count 1 to a misdemeanor, and it will remain a felony. The defense request to reduce it is denied.”

Defendant has not met his burden of showing the trial court’s decision was irrational or arbitrary. The trial court was aware of its discretion and considered defendant’s motion. There is no evidence in the record suggesting that the trial court’s use of the phrase “personally used a deadly, dangerous weapon” was intended to make the same findings required by the enhancement in section 12022, subdivision (b)(1). Viewed in its context, the trial court was merely acknowledging the fact that defendant made criminal threats while he possessed a deadly and dangerous weapon. The fact that defendant used the kitchen knife while making criminal threats is relevant to the appropriate factor of the nature and circumstances of the offense.

Furthermore, the trial court did not abuse its discretion by reiterating the fact that defendant used a deadly and dangerous weapon where it would have reasonably understood that defendant was using the kitchen knife in a deadly and dangerous manner. It is clear from the trial court’s ruling that it did not use the phrase “inherently deadly” weapon in denying defendant’s motion. Accordingly, the trial court’s decision to deny defendant’s motion to reduce the attempted criminal threat offense to a misdemeanor was not an abuse of discretion given the information before the court and balancing of the relevant factors.

DISPOSITION

The judgment is affirmed.

* Before Hill, P. J., Levy, J. and Poochigian, J.

[1] All further statutory references are to the Penal Code unless otherwise stated.

[2] The jury was unable to reach a verdict on the first date of deliberations. On the second date of deliberations, the jury requested a new verdict form for count 2 because of multiple changes to its verdict.