Filed 1/25/18 P. v. Soletti CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE


THE PEOPLE,
Plaintiff and Respondent,
v.
JASON SOLETTI,
Defendant and Appellant.

A149138

(Contra Costa County
Super. Ct. No. 05-150304-4)


A jury convicted defendant Jason Soletti of two counts of assault with a deadly weapon, three counts of custodial possession of a weapon, and one count of resisting an executive officer based on three separate incidents that occurred while Soletti was incarcerated at the Martinez Detention Facility. On appeal, he contends that the two assault convictions must be reversed, because (1) there was insufficient evidence he committed assault with an implement that qualified as a “deadly weapon” and (2) the trial court erroneously instructed the jury on the definition of that term. We affirm.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
A. July 2012 Possession of Metal Grate Pieces.
In July 2012, a Contra Costa County Sheriff’s deputy noticed that the intercom in Soletti’s cell was not working. Upon investigating, the deputy saw that the grate over the intercom was missing, and Soletti admitted the grate was in his bed. The deputy then located a piece of the grate wrapped in cloth in Soletti’s mattress, and Soletti said, “ ‘It’s made into a weapon in case I need to get at someone.’ ” A later search of the mattress revealed additional pieces of metal, some of which were shaped to a point.
B. February 2013 Assault with a Broken Broomstick.
Several months later, in February 2013, a deputy sheriff and another inmate were passing out meals on Soletti’s module. The other inmate “jump[ed] back” after moving to pass food through the food port in Soletti’s cell, and the deputy saw Soletti “holding a jagged piece of a broomstick” and making “a stabbing motion, thrashing motion, coming out of the [port] attempting to stab somebody.” The other inmate, who apparently had been struck by the broomstick, sustained a small, bloody cut on his finger. Soletti then threw several other pieces of broomstick through the port. The deputy testified that the end of the piece of broomstick Soletti used to stab the other inmate appeared to have been sharpened and have feces on it.
C. September 2014 Assault While Holding a Jail-made Knife.
Finally, in September 2014, Soletti attacked a different inmate working on his module. After a deputy sheriff opened Soletti’s cell door to allow Soletti to collect a commissary package, Soletti used the door to push the deputy out of the way and ran toward the other inmate. Soletti used his right hand to throw a punch at the inmate, and the inmate ducked, grabbed Soletti around the waist, and moved to take him to the ground. The deputy then pulled Soletti down, pinning Soletti’s arms as Soletti kept “thrashing his body.” The deputy repeatedly ordered Soletti to stop resisting, and although Soletti relaxed and appeared ready to cooperate, “he immediately started thrashing again” once the deputy tried to roll him onto his stomach.
After finally getting Soletti under control, the deputy saw an “approximately . . . two-and-a-half-inch silver blade sticking out of his right hand.” The weapon, which the deputy agreed was a “jail-made knife,” appeared to have been fashioned from one blade of a large pair of toenail clippers that had been “filed down . . . to give it somewhat of a bladed edge and a sharp point,” although the blade itself appeared dull. The knife’s handle appeared to have been made of “paper [that had] gotten wet and then compressed down to make a solid base and then wrapped with some sort of wrapper.”
D. Verdicts and Sentencing.
The jury convicted Soletti of one count of custodial possession of a weapon based on the metal-grate incident, one count of assault with a deadly weapon and one count of custodial possession of a weapon based on the broomstick incident, and one count of assault with a deadly weapon, one count of custodial possession of a weapon, and one count of resisting an executive officer based on the knife incident. The jury also found true the allegations that Soletti personally used a deadly or dangerous weapon in committing the assaults.
After finding that Soletti had two prior strikes, the trial court sentenced him to a total term of 82 years and four months to life in prison, comprised of consecutive terms of 25 years to life each for the assaults, 20 years to reflect a sentence he was still serving in a separate case, one year for custodial possession of the metal-grate pieces, one year, four months for resisting an executive officer, and five years each for the two prior strikes. It also imposed eight-year terms for the other two custodial-possession convictions and stayed those sentences under section 654.
II.
DISCUSSION
A. Substantial Evidence Supports Both Assault Convictions.
Soletti argues there was insufficient evidence that he committed assault with a deadly weapon based on his use of either the broken broomstick or the jail-made knife. We are not persuaded.
To evaluate claims challenging the sufficiency of the evidence, “ ‘we review the whole record to determine whether . . . [there is] substantial evidence to support the verdict . . . such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence.’ ” (People v. Manibusan (2013) 58 Cal.4th 40, 87.) “ ‘ “ ‘If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.’ ” ’ ” (In re George T. (2004) 33 Cal.4th 620, 631.) Reversal is required only if “ ‘it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].” ’ ” (People v. Cravens (2012) 53 Cal.4th 500, 508.)
Section 245, subdivision (a)(1) prohibits assault “with a deadly weapon or instrument other than a firearm.” Under the statute, the term “deadly weapon” means “ ‘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.’ ” (People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029.) Some objects are inherently deadly weapons based on “the ordinary use for which they are designed,” and most others, “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.” (Aguilar, at p. 1029.) In particular, although “neither physical contact nor actual injury is required to support a conviction[,] . . . if injuries do result, the nature of such injuries and their location are relevant facts for consideration in determining whether an object was used in a manner capable of producing and likely to produce great bodily injury.” (People v. Brown (2012) 210 Cal.App.4th 1, 7 (Brown).)
Soletti argues that neither the broomstick nor the knife was an inherently deadly weapon. In doing so, he relies on People v. Beasley (2003) 105 Cal.App.4th 1078, which held that a broomstick the defendant used to hit the victim on the arms and shoulders did not qualify as a deadly weapon (id. at pp. 1087-1088), and People v. Kersey (1957) 154 Cal.App.2d 364, which held that a pocket knife was not inherently deadly (id. at p. 366). These cases are distinguishable, however, because neither involved an instrument modified in jail for specific use as a weapon. Here, evidence was presented that the broomstick was broken off and smeared with feces and the clippers blade was filed to a sharp point. This constituted substantial evidence that both objects had been altered into weapons for use to inflict deadly injury, and we agree with the Attorney General that they were therefore inherently deadly based on their ordinary use. (See People v. Aguilar, supra, 16 Cal.4th at p. 1029; see also People v. Graham (1969) 71 Cal.2d 303, 327 [inherently dangerous or deadly instruments are those “ ‘which are weapons in the strict sense of the word and are “dangerous or deadly” to others in the ordinary use for which they are designed’ ”].)
Soletti does not identify any possible purpose other than inflicting deadly injury that either implement had. He argues only that because knives are not inherently deadly, a broken broomstick cannot be either. In doing so, he focuses on the conflicting testimony about whether the piece of broomstick he used to stab the other inmate had actually been sharpened: the deputy who witnessed the incident initially agreed with the prosecutor that it appeared to have been sharpened but later said it was “not necessarily sharpened.” Soletti also suggests that the substance on the end of the broomstick might not have been feces, given the deputy’s testimony that the jail sometimes served chili. Of course, in reviewing the sufficiency of the evidence, we must view the record in the light most favorable to the prosecution, and the deputy’s original testimony constitutes substantial evidence that the broomstick was intentionally sharpened and smeared with feces. Regardless, there is no dispute that the broomstick was broken off to be used as a weapon. Therefore, we conclude there was substantial evidence that both the broomstick and jail-made knife were inherently deadly weapons, and we need not address whether they were also actually used in a manner likely to produce death or great bodily injury.
Soletti also argues that there was insufficient evidence that he even used the knife to attack the other inmate, because the deputy who witnessed the assault did not testify to seeing it in Soletti’s hand until Soletti had been subdued. Again, however, we must view the evidence in the light most favorable to the prosecution, and the jury could have reasonably inferred that Soletti was holding the knife throughout the incident, including when he tried to punch the other inmate. There is no evidence that Soletti picked up the knife at any time after he left his cell, and the deputy’s failure to observe it earlier permits the inference that Soletti had it in his hand the whole time.
B. The Trial Court Did Not Misdefine the Term “Deadly Weapon.”
Soletti also claims that his assault convictions must be reversed because the trial court improperly defined the term “deadly weapon” for the jury. Specifically, he contends that the court erred by (1) repeatedly using the phrase “deadly or dangerous weapon” and (2) suggesting that whether the broomstick or jail-made knife was a deadly weapon should be judged based on its abstract use as a weapon instead of how he actually used it. We conclude that there was no reversible error.
1. Additional facts.
The jury was instructed under CALCRIM No. 875 on the elements of assault with a deadly weapon. The instruction defined “deadly weapon other than a firearm” 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.” (Italics omitted.) Soletti accepts the accuracy of this instruction.
The jury was also instructed under a modified version of CALCRIM No. 3145 on the accompanying enhancements for personal use of a deadly or dangerous weapon under section 12022, subdivision (b)(1). In this instruction, the jury was given the same definition of “deadly weapon other than a firearm” as that under CALCRIM No. 875, but it was not instructed on the meaning of the term “deadly or dangerous weapon.” In addition, the modified version of CALCRIM No. 3145 provided that “[s]omeone personally uses a deadly or dangerous weapon if he or she intentionally does any of the following: [¶] 1. Displays the weapon in a menacing manner; and/or [¶] 2. Hits someone with the weapon including intentionally stabbing or cutting another person.” (Italics omitted.)
The trial court provided further instructions on these concepts in response to two questions posed by the jury. First, the jury asked whether it was “to take as fact that exhibit 3a, a sharp broomstick w/feces is . . . a deadly weapon. Re [the broomstick assault count] – on the actual charge sheet, is the court saying that a sharp broomstick w/feces as shown in the exhibit is a deadly weapon? We are fixated on the word deadly. This also means we need clarification on pg. 28 of the definition of deadly weapon [under CALCRIM No. 875].”
A minute order indicates that counsel was “contacted” about the jury’s request and a response was “prepared,” but there is no transcript of the relevant discussion, and there is no indication whether Soletti objected to the response that was eventually given. The trial court’s written response to the jury was as follows:
The question of whether or not a particular item is a deadly or dangerous weapon is a question of fact to be decided by the jury and not a question for the court.

In deciding whether or not an item is a deadly or dangerous weapon, you should refer to Instruction #875 at pages 27-28 which provides the definition of a deadly or dangerous weapon. You should also refer to the relevant circumstances to consider in making that determination which are set forth in Instruction 3145 at page 33.

If you decide that an item is capable of and likely to inflict death or great bodily injury when used as a weapon, that finding is sufficient to satisfy the statutory definition of an item as a deadly or dangerous weapon.
Second, the jury asked, in reference to the portion of CALCRIM No. 3145 about hitting someone with a weapon, whether an “attempt to stab or cut satisf[ied] that statement.” The accompanying minute order indicates that the parties “argue[d]” about the possible response, but again there is no transcript of the discussion and no indication whether Soletti objected to the final response given. The trial court’s written response to the jury was as follows: “With regard to the ‘personal use’ requirement set forth in Instruction 3145 at page 33: [¶] Someone also uses a deadly or dangerous weapon if the weapon is actively deployed by the defendant so as to increase the risk that the intended victim will be injured. Such ‘active deployment’ includes attempting to stab or strike the victim with the deadly or dangerous weapon.”
2. Discussion.
We independently review whether jury instructions correctly state the law. (People v. Posey (2004) 32 Cal.4th 193, 218.) “Review of the adequacy of instructions is based on whether the trial court ‘fully and fairly instructed on the applicable law.’ [Citation.] ‘ “In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole . . . [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.” ’ ” (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)
Soletti contends that the trial court’s collective instructions “misdefined the term ‘deadly weapon’ and thereby lowered the prosecution’s burden of proof.” He claims the court’s repeated references to a “deadly or dangerous weapon” impermissibly suggested to the jury that it could find him guilty of assault with a deadly weapon so long as it believed an instrument was a dangerous weapon. Specifically, he points to the court’s use of the phrase “deadly or dangerous weapon” in its response to the jury’s question about whether a broomstick was a “deadly weapon” and request for clarification of the latter term’s definition in CALCRIM No. 875; in the modified version of CALCRIM No. 3145 itself; and in its response to the jury’s question about CALCRIM No. 3145’s definition of “personal use.”
Brown, the primary authority on which Soletti relies, confirmed that a conviction for assault with a deadly weapon under section 245, subdivision (a)(1) requires proof that an object is a deadly weapon, not just a dangerous one. (Brown, supra, 210 Cal.App.4th at p. 9.) Considering a prior version of CALCRIM No. 875 that defined a deadly weapon as “ ‘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,’ ” the Court of Appeal concluded that the instruction could “impermissibly allow a jury to convict a defendant of assault with a deadly weapon if it finds the weapon employed was inherently dangerous, even if it rejects the notion that the instrument was inherently deadly or used in a manner capable of causing and likely to cause death or great bodily injury.” (Brown, at pp. 8, 11, italics added.)
We reject Soletti’s argument that the trial court’s instructions and responses involving the personal-use enhancements constituted reversible error. Unlike a conviction for assault with a deadly weapon under section 245, subdivision (a)(1), a personal-use enhancement under section 12022, subdivision (b)(1) can be based on use of a deadly or dangerous weapon. (§ 12022, subd. (b)(1).) As a result, there is nothing objectionable about the use of the phrase “deadly or dangerous weapon” in the given version of CALCRIM No. 3145 or in the court’s response to the jury’s question about what “personal use” meant as used in that instruction.
Nor do we agree that the trial court’s repeated use of the phrase “deadly or dangerous weapon” in its response to the jury’s question about whether the broomstick was a deadly weapon amounted to misinstruction on an element of assault with a deadly weapon. As the Attorney General points out, the trial court used the proper definition of “deadly weapon” to define the phrase “deadly or dangerous weapon,” both by referring the jury back to CALCRIM No. 875 (whose accuracy Soletti does not challenge) and by incorporating the correct standard for determining whether, if an item is not inherently deadly, it is nevertheless a deadly weapon based on how it was used. Although the court may have been imprecise by using the phrase “deadly or dangerous weapon,” it was likely trying to avoid a different type of confusion by making clear that its response also applied to the jury’s consideration of the personal-use enhancements, i.e., that “deadly weapons” sufficient to support convictions on the assault counts would also support true findings on the personal-use allegations. Given the court’s reiteration of the proper definition of “deadly weapon” in its response, we conclude there is no “ ‘reasonable likelihood that the jury misunderstood and misapplied the instruction.’ ” (People v. Young (2005) 34 Cal.4th 1149, 1202.) Moreover, the absence of any indication in the record that Soletti’s trial counsel objected to the court’s response further suggests that “ ‘ “the potential for [confusion] argued now was not apparent to one on the spot.” ’ ” (Id. at p. 1203.)
Soletti also claims the trial court’s response to the jury’s question about CALCRIM No. 875 lowered the prosecution’s burden of proof by referring to the item’s capability and likelihood of inflicting serious injury “when used as a weapon” instead of when used as he actually used it. We agree with the Attorney General that, again, there is no reasonable likelihood that the jury misunderstood and misapplied the court’s response because the response referred back to CALCRIM No. 875, which defined a non-inherently deadly weapon based on if it “is used in such a way” that it is likely to cause deadly injury. And the record does not reveal that Soletti’s trial counsel objected to this portion of the court’s response either. Although the response could have been more clearly worded, any ambiguity did not amount to error.
Finally, Soletti argues that the claimed errors violated his federal right to due process. Because we conclude that the trial court’s instructions were legally sufficient, we reject this claim as well. (See People v. Young, supra, 34 Cal.4th at p. 1203.)
III.
DISPOSITION
The judgment is affirmed.





_________________________
Humes, P.J.


We concur:


_________________________
Dondero, J.


_________________________
Banke, J.













People v. Soletti A149138