Filed 5/19/17 P. v. Christ CA3
NOT TO BE PUBLISHED



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Placer)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

BENJIMAN WARREN CHRIST,

Defendant and Appellant.
C081156

(Super. Ct. No. 62-134383)





A jury convicted defendant Benjiman Warren Christ of two counts, including assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).) On appeal, defendant raises two contentions: (1) his conduct did not constitute a violation of section 245, subdivision (a)(1) because that subdivision applies only to inherently dangerous or deadly per se weapons; and (2) the trial court erred in failing to instruct on the lesser included offense of simple assault. Finding no reversible error, we affirm.
BACKGROUND
The Charged Incident
In the evening, the victim was playing with five other boys. The victim was 12 or 13, and all six boys were in the same grade. The victim was carrying a three-and-a-half foot “longboard” skateboard; it weighed a “few pounds” and was made of wood and carbon fiber. One of the boys suggested they go “doorbell ditching.”
They targeted the nearby home of defendant. One of the boys pounded on the door six or seven times. When someone yelled, “He’s coming,” the boys ran toward an alleyway.
As they ran, the victim—who was still carrying the skateboard—lagged behind. At the end of the alley, the victim felt someone grab his shoulder. As the grip became more forceful, the victim heard, “I know who you are. And I’m placing a citizen’s arrest on you.”
The victim turned around to see defendant. Defendant moved his hand to the victim’s throat. He squeezed the victim’s throat “[a] little.” It was forceful—though defendant was not choking him. With his other hand, defendant grabbed the victim’s head.
Defendant told the victim he would snap his neck and kill him if he moved. The victim said he wanted to go home, and defendant said, “No. We’re walking to the policeman’s house, and I’m placing a citizen’s arrest on you.” (An officer lived nearby.)
Defendant walked the victim down the street. As they walked, defendant took his hand off the victim’s neck but kept a hand on his head. With his free hand, he took the skateboard from the victim.
The victim continued to ask to go home, “Can I just go home? This is assault.” He also yelled, “Call 911.”
Defendant then raised the skateboard up, to around his shoulder level (but not over his head). He said, “Shut up or the board will hit you.” The victim feared for his safety, believing defendant could hit him.
When they reached the end of the street, they saw a woman. The victim’s friends yelled, “Call 911.” As defendant looked at the woman, he loosened his grip. The victim broke free and sprinted away. The attack left red marks on the victim’s throat, bruising on his neck, and soreness.
Verdict & Sentencing
Prior to instructing the jury, the trial court asked defense counsel if he was requesting any instructions on lesser included offenses. Defense counsel responded, “Not requesting any, Your Honor.”
The trial court instructed the jury that 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.’ ”
In closing, defense counsel argued, “Is a skateboard inherently deadly? . . . No.” He continued: “So . . . the only way that this skateboard could be a deadly weapon other than a firearm, for your purposes, is [if it] . . . ‘is used in such a way that it is capable and likely capable of causing and likely to cause death or great bodily injury.’ [¶] Was this skateboard used in such a way, holding it up, that it was capable of causing and likely to cause deadly or great bodily injury? No.”
The jury convicted defendant of criminal threats (§ 422) and assault with a deadly weapon (§ 245, subd. (a)(1)). The court suspended imposition of sentence and placed defendant on formal probation for five years. It also ordered him to serve 330 days in jail with credit for 57 days.
I
A Skateboard Can Constitute a Deadly Weapon
Under Section 245, Subdivision (a)(1)
Defendant first contends his use of the skateboard does not, as a matter of law, violate section 245, subdivision (a)(1). He reasons subdivision (a)(1) applies only to inherently dangerous or deadly per se weapons. He points to the 2012 amendment of section 245, which split the original subdivision (a)(1)—proscribing both assault with a deadly weapon and assault with force likely to produce great bodily injury—into two separate sections. Defendant argues that because subdivision (a)(1) no longer includes the language: “or by any means of force likely to produce great bodily injury” (which is now of part subdivision (a)(4)), section (a)(1) no longer applies to noninherently dangerous weapons.
He also argues, in the alternative, that if section (a)(1) does apply to items that are not deadly per se, it is only “instruments” that need not be deadly per se—weapons must still be inherently dangerous or deadly per se. And here, the jury was only instructed to decide whether defendant did an act with a deadly “weapon.” On both points, defendant is mistaken.
Courts have consistently construed the amended section 245, subdivision (a)(1) to apply to weapons that are not inherently dangerous or deadly per se, so long as they are used as such. (See, e.g., In re D.T. (2015) 237 Cal.App.4th 693, 698 [“In the context of [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.” ’ ”]; In re B.M. (2017) 10 Cal.App.5th 1292, 1298 [under section 245, subd. (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.” ’ ”].)
Accordingly, we reject defendant’s argument and hold a skateboard, which is not a deadly per se weapon, can violate section 245, subdivision (a)(1).
II
Failing to Instruct on the Lesser Included Offense
of Simple Assault was Harmless
Defendant next contends the trial court erred in failing to instruct on the lesser included offense of assault.
A trial court must instruct sua sponte on lesser included offenses “ ‘if the evidence “raises a question as to whether all of the elements of the charged offense are present and there is evidence that would justify a conviction of such a lesser offense.” ’ [Citation.]” (People v. Moon (2005) 37 Cal.4th 1, 25.) But there is no such duty to instruct on a lesser included offense where insufficient evidence supports the instruction. (People v. Page (2004) 123 Cal.App.4th 1466, 1474 [“The question, then, is whether there was substantial evidence that defendant committed assault but not assault with a deadly weapon”].)
The People do not directly challenge the contention of instruction error, but maintain any error was harmless. We agree with the People, and will assume the failure to instruct on simple assault was error.
Error in failing to instruct sua sponte on a lesser included offense supported by the evidence is reviewed for prejudice under People v. Watson (1956) 46 Cal.2d 818. (People v. Breverman (1998) 19 Cal.4th 142, 178.) We will reverse only if after examining the record it appears “ ‘reasonably probable’ ” defendant would have obtained a more favorable outcome absent the error. (Ibid.)
Here, defendant argues a better outcome is reasonably probable. He asserts there was conflicting evidence about how he used the skateboard; he notes the jurors sent questions about assault during deliberation; and he points out the prosecutor, during closing argument, referred to defendant grabbing the victim’s neck, arguing to the jury, “if there is touching, you are allowed to consider that.”
But defendant’s assertions do not lead to a reasonable probability of a more favorable outcome. Indeed, the key facts of the skateboard incident are not in dispute. Defendant testified he held up the skateboard and said to the victim, “[S]hut up or it’s going to hit you.” From these undisputed facts, the jury concluded the skateboard was a deadly weapon. And on these facts, that was the only reasonable conclusion to be drawn from defendant’s threat while holding the three-and-a-half foot wood and carbon fiber skateboard weighing a few pounds. Thus, on this record, it is not reasonably probable defendant would have obtained a better outcome absent any instructional error. (See People v. Lee (1999) 20 Cal.4th 47, 62 [“In posttrial review of a judgment an appellate court ‘focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration’ ”].)
Accordingly, defendant’s challenge of instructional error must fail.


DISPOSITION
The judgment is affirmed.



NICHOLSON , Acting P. J.


We concur:



BUTZ , J.




HOCH , J.