People v. Lightfoot CA1/4 ( 2022 )

Filed 10/28/22 P. v. Lightfoot CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A160138
v.
DAVID LIGHTFOOT, (City & County of San Francisco
Super. Ct. No. 228385)
Defendant and Appellant.
Defendant David Lightfoot appeals after a jury found him guilty of
assault with a deadly weapon (Pen. Code,1 § 245, subd. (a)(1)) and battery on
a transit passenger (§ 243.3), with an enhancement for use of a deadly or
dangerous weapon (§ 12022, subd. (b)(1)). The weapon was a folding knife
with a three and a half-inch blade. Defendant contends the court prejudicially
erred by giving standard instructions for the assault count and deadly-weapon
enhancement that defined a deadly weapon as one that is “inherently deadly
or . . . used in such a way that is capable of causing and likely to cause death
or great bodily injury.” It was error to give that instruction because a knife is
not, as a matter of law, an “inherently deadly” weapon. (People v. Aledamat
(2019) 8 Cal.5th 1, 6 (Aledamat).) The Attorney General concedes the error
but contends it was harmless beyond a reasonable doubt under Aledamat, in
1 All statutory references are to the Penal Code.
1
which the court found an identical instructional error harmless on similar
facts. (Id. at p. 15.) We agree that Aledamat is indistinguishable and compels
affirmance.
Factual and Procedural History
Defendant, who introduced evidence that he suffers from schizophrenia,
assaulted Kyle Simmons, a transgender woman he had never met, on a bus.
Acting without perceptible external provocation, defendant punched Simmons
in the jaw and stabbed her once in the center of her back, where he left the
knife lodged.
Fortunately, the blade did not puncture Simmons’s organs or spine. She
needed medication for extreme pain, but not surgery. After doctors removed
the knife and repacked the wound, it fully healed. An emergency room doctor
testified that a stab wound to the back could puncture the aorta, “pop” a lung,
or damage the spine, but a defense medical expert opined that it was highly
unlikely that a three and a half-inch blade could ever have penetrated
Simmons’s spinal cord from the area where she was stabbed.
Defendant was charged with attempted murder (§ 187, subd. (a); § 664),
assault with a nonfirearm deadly weapon (§ 245, subd. (a)(1)), and battery on
a transit passenger (§ 243.3). The information included allegations to support
enhancements, as to all three counts, for infliction of great bodily injury
(§ 12022.7, subd. (a)) and, as to the first and third counts, for personal use of
a deadly or dangerous weapon (§ 12022, subd. (b)(1)).
With regard to the latter enhancement, the court instructed the jury
using CALCRIM No. 3145. The instruction stated that 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 is capable of causing and
likely to cause death or great bodily injury.” It directed the jury, “In deciding
2
whether an object is a deadly weapon, consider all the surrounding
circumstances, including when and where the object was possessed, and
where the person who possessed the object was going, and whether the object
was changed from its standard form and any other evidence that indicates
whether the object would be used for a dangerous, rather than a harmless,
purpose.”
On count two, assault with a nonfirearm deadly weapon, the court gave
CALCRIM No. 875. The instruction stated 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 is capable of causing and likely to cause death
or great bodily injury.”2
Discussing the elements of assault with a deadly weapon in her closing
argument, the prosecutor said, “The deadly weapon here is obviously the
knife.” As for the deadly-weapon enhancement, she told the jury, “You are not
going to consider it for count 2, because it’s already part of [the crime].
Assault with a deadly weapon, we already talked about this deadly weapon.”
She then said: “What do you do with the deadly weapon for this allegation to
apply, you hit someone with it or you stab that knife plunging it deeply into
2 In September 2019, the Judicial Council amended CALCRIM Nos. 875
and 3145 by including a definition of “inherently deadly” and adding bench
notes directing courts to use the “inherently deadly” language “only if the
object is a deadly weapon as a matter of law.” (Judicial Council of Cal., Crim.
Jury Instns. Bench Notes to CALCRIM No. 875; id., Bench Notes to
CALCRIM No. 3145; Jud. Council of Cal., Advisory Com. on Crim. Jury
Instns., Jury Instructions: Revisions to Criminal Jury Instructions (July 19,
2019) pp. 1, 4 [as of Oct. 28, 2022].)
Though this case was tried in January 2020, the court used pre-September
2019 versions of CALCRIM Nos. 875 and 3125 identical to the versions at
issue in Aledamat, which the court deemed “problematic.” (Aledamat, supra,
8 Cal.5th at p. 15.)
3
someone’s back. It’s an object. Any object used inherently in a deadly way
likely to cause death or great bodily injury, a knife plunged into someone’s
back reaching but not penetrating the spine is exactly that type of weapon”
(italics added).
Those comments aside, the prosecutor devoted her closing argument to
the intent-to-kill element of attempted murder, the unconsciousness defense to
that charge, and whether Simmons suffered great bodily injury. Defendant’s
attorney took a similar tack; his closing never addressed the deadly-weapon
element—or any other element—of the assault with a deadly weapon count or
deadly-weapon enhancement.
The jury deliberated for approximately 20 hours. It asked several
questions and requested readback of several passages. The questions and
readbacks concerned expert psychological testimony and aspects of
defendant’s history relevant to the intent-to-kill element of, and
unconsciousness defense to, the attempted murder count. The jury found
defendant not guilty on that count but guilty on the counts of assault with a
deadly weapon and battery of a transit passenger. It found not true the
allegation that defendant inflicted great bodily injury but found true the
allegation, as to the battery count, that he used a deadly weapon. The court
sentenced defendant to four years in prison,3 and defendant timely appealed.
Discussion
Defendant’s sole contention is that the court erred by giving
instructions that enabled the jury to find the deadly-weapon element of the
two instructions proven because the knife was “inherently deadly.” Our
3 The sentence consists of the upper term of four years on count 2,
assault with a nonfirearm deadly weapon. The court imposed and stayed,
pursuant to section 654, sentences of eight months on count 3 and one year on
the related deadly-weapon enhancement.
4
Supreme Court has held that a knife can never qualify as an “inherently
deadly” weapon. (Aledamat, supra, 8 Cal.5th at p. 6 [“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. 8 [“a knife is not inherently deadly
as a matter of law”].)4 The Attorney General concedes that, like the trial court
in Aledamat, the court here erred by “presenting the jury with two theories
by which it could find the [knife] a deadly weapon: (1) inherently or (2) as
used. The first theory (inherently) is incorrect, but the second theory (as
used) is correct.” (Id. at p. 7) Aledamat labels this type of error “alternative-
theory instructional error.” (Id. at p. 7, fn. 3.)5
The question here is whether the error was prejudicial. As clarified in
Aledamat, if a court erroneously instructs on two theories, one of which is
valid and one of which is “legally inadequate,” a reviewing court must
evaluate prejudice under “the usual ‘beyond a reasonable doubt’ standard of
review established in Chapman v. California (1967) 386 U.S. 18, 24 . . . for
federal constitutional error.” (Aledamat, supra, 8 Cal.5th at p. 3.) That
4 Aledamat involved a box cutter, but the court stated that “ ‘A box
cutter is a type of knife’ that, ‘because it is designed to cut things and not
people,’ is not an inherently deadly weapon as a matter of law.” (Aledamat,
supra, 8 Cal.5th at p. 6.)
5
Aledamat distinguishes “two categories of incorrect theories”:
“factually inadequate” ones, in which it is error to instruct because the theory
is not supported by the evidence, and “legally inadequate” ones, in which it is
error to instruct because applying the theory to the facts of a case would be
contrary to law in a way that a jury is ill equipped to detect. (Aledamat, supra,
8 Cal.5th at p. 7.) In Aledamat, the “inherently deadly” theory was “legally
inadequate.” (Id. at p. 8.) Erroneous instruction on such a theory is subject to
a “higher standard” of harmlessness review than erroneous instruction on a
factually inadequate theory. (Ibid.) Here, the “inherently deadly” theory was
legally inadequate for the same reasons as in Aledamat, and the same
harmlessness standard applies.
5
standard requires a court to reverse a 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.” (Ibid.) Aledamat rejected the contention that alternative-theory
instructional error is harmless only if the verdict shows affirmatively that the
jury relied on the valid theory. (Id. at pp. 11–13.) There are several
formulations of how a court may analyze prejudice in such a case (id. at
pp. 9–13), but we need look no further than the analysis in Aledamat of facts
that in all essential respects are indistinguishable from those in this case.
In Aledamat, the 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 [victim] at waist level, saying, ‘I’ll kill you.’ Two nearby police officers
. . . intervened and arrested defendant.”6 (Aledamat, supra, 8 Cal.5th at p. 4.)
The People charged him with assault with a nonfirearm deadly weapon
(§ 245, subd. (a)(1)) and making a criminal threat (§ 422). As to the threat
count, the People alleged that he personally used a deadly weapon. (§ 12022,
subd. (b)(1).) For both the count of assault with a deadly weapon and the
deadly-weapon enhancement, the trial court in Aledamat used the same
standard instructions used here—that is, the pre-September 2019 versions of
CALCRIM Nos. 875 and 31457 (see fn. 2, ante). (Aledamat, supra, at pp. 4–5.)
6Aledamat differs from this case in that the defendant there did not
touch the victim with the knife—let alone drive it several inches into his
back. But the difference is immaterial.
7
The only difference is that, in this case, the court included certain
optional, bracketed language in CALCRIM No. 3145 (shown below by italics)
that the trial court in Aledamat omitted: “consider all the surrounding
circumstances, including when and where the object was possessed, and
where the person who possessed the object was going, and whether the object
was changed from its standard form and any other evidence that indicates
6
Aledamat thus involved precisely the same crime, same enhancement,
and same pre–September 2019 CALCRIM instructions as this case. Applying
the Chapman test, the court held that “[a] number of circumstances convince
us beyond a reasonable doubt that the error was harmless.” (Aledamat, supra,
8 Cal.5th at p. 13.) Each of those circumstances is also present here.
First, the court reasoned that although the wording of the instruction
made it theoretically possible for a jury to believe that it could find a knife
“inherently deadly,” the use of both CALCRIM Nos. 875 and 3145 made it
“unlikely the jury would simply view the [knife] as inherently deadly without
considering the circumstances, including how defendant used it.” (Aledamat,
supra, 8 Cal.5th at p. 14.)8
whether the object would be used for a dangerous, rather than a harmless,
purpose.” (Compare CALCRIM No. 3145 with Aledamat, supra, 8 Cal.4th at
p. 14.) If anything, the additional language underscored the “as-used”
alternative.
8
To reach that conclusion, the court reasoned as follows: “The
argument that the error was prejudicial supposes that, under the
instructions, the jury would believe there were two separate ways it could
find the [knife] to have been a deadly weapon. The first method would be
simply to find it was inherently deadly without considering any of the
surrounding circumstances. The second method would be to consider how
defendant used it. Technically, this is correct. The court used the disjunctive
‘or,’ which, out of context, would seem to permit such separation. In context,
however, it is unlikely the jury would so view the instructions. [¶] The
instruction referred to an object 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.’ This juxtaposition at least indicates what the ‘inherently
deadly’ language was driving at. Additionally, the jury was also instructed:
‘In deciding whether an object is a deadly weapon, consider all of the
surrounding circumstances . . . .’ This part of the instruction suggested the
question was unitary, that is, that the jury had to consider all of the
circumstances in deciding whether the object was a deadly weapon, either
inherently or as used. The jury would likely view the ‘inherently deadly’
7
Second, Aledamat’s prejudice analysis rests on a record that is similar
to the record in this case. The court noted that one “nonexclusive way” to find
an alternative-theory instructional error harmless is to “examine[] what the
jury necessarily did find and ask[] whether it would be impossible, on the
evidence, for the jury to find that without also finding the missing fact as
well.” (Aledamat, supra, 8 Cal.5th at pp. 14–15.) The court applied that
standard as follows: “Here, under the instructions, the jury necessarily found
the following: (1) defendant did an act with a deadly weapon (either
inherently or as used) that by its nature would directly and probably result in
the application of force; (2) defendant was aware of facts that would lead a
reasonable person to realize that his act by its nature would directly and
probably result in the application of force to someone; and (3) defendant had
the present ability to apply force with a deadly weapon to a person. [¶]
Additionally, the jury must have considered the term ‘inherently deadly’ to
mean something. . . . [T]he theoretical risk is that, because the court did not
define the term, the jury might have applied its common understanding to
find the [knife] deadly because it is sharp and used for cutting. [Citations.]
But if the jury did so, it would necessarily find the [knife] deadly in the
colloquial sense of the term—i.e., readily capable of inflicting deadly harm—
and that defendant used it as a weapon. [¶] ‘No reasonable jury that made all
language in light of this additional instruction that it had to consider all of
the circumstances.” (Aledamat, supra, 8 Cal.5th at pp. 13–14.)
Defendant argues that we cannot assume jurors applied the “consider all
. . . surrounding circumstances” directive in CALCRIM No. 3145, which governs
only the deadly-weapon enhancement, to the assault with a deadly weapon
count, for which the instruction given, CALCRIM No. 875, lacks such language.
But in Aledamat, the dissent made the exact same point. (8 Cal.5th at p. 21
(conc. & dis. opn. of Cuellar, J.).) The majority nonetheless treated the “all
circumstances” language as governing both the count and the enhancement.
(Id. at pp. 13–14.)
8
of these findings could have failed to find’ that defendant used the [knife] in a
way that is capable of causing or likely to cause death or great bodily injury.”
(Id. at p. 15.) Precisely the same may be said here.
Finally, the Aledamat court relied on the closing arguments. The court
noted that “no one ever suggested to the jury that there were two separate
ways it could decide whether the [knife] was a deadly weapon.” (Aledamat,
supra, 8 Cal.5th at p. 14.) Here, as indicated above, the prosecutor’s closing
argument focused on the mental element of the attempted murder count. Her
only use of the word “inherently” was in a muddled comment that, as
defendant puts it, “conflated” the two theories of deadliness by describing a
“deadly weapon” as “[a]ny object used inherently in a deadly way likely to
cause death or great bodily injury.” Whatever the prosecutor meant by that,
she finished her comment by stating that “a knife plunged into someone’s back
reaching but not penetrating the spine is exactly that type of weapon.” The
prosecutor thus urged the jury to find the knife to be a deadly weapon based
not on its inherent nature, but on how it was used—“plunged into someone’s
back.”
In arguing to the contrary, defendant notes that, in summarizing the
elements of assault with a deadly weapon, the prosecutor said, “[t]he deadly
weapon here is obviously the knife.” But “obviously” is not “inherently.” The
comment did not imply that the knife was inherently deadly; it conveyed only
that it was “obvious” that the knife was the weapon on which the prosecution
was relying to satisfy the deadly-weapon element. Defendant also relies on
his lawyer’s closing statement about a different issue, the elements of
attempted murder.9 But that argument did not address the deadly-weapon
9To define attempted murder, the court gave CALCRIM No. 600, which
requires proof that the defendant “took at least one direct but ineffective step
9
element. Indeed, defense counsel told the jury that “[t]he three main
questions or decisions that you are going to have in front of you [are], one,
whether . . . [defendant] was conscious at the time of the incident. Two, . . .
[whether he] did an act or direct step for killing Ms. Simmons and had the
intent to kill. [¶] And three, whether . . . [he] inflicted . . . great bodily injury.”
The rest of his closing argument exclusively addressed those three issues. As
in Aledamat, defendant did not contest that the knife was a deadly weapon
for purposes of the relevant count and enhancement. (Aledamat, supra,
8 Cal.5th at p. 14.)
Defendant never attempts to distinguish Aledamat. Instead, he adopts
without attribution arguments from a dissent in that case. He contends, for
example, that the error cannot be deemed harmless based on defendant’s
failure to contest the deadliness issue because he never expressly or
implicitly conceded that issue. Defendant’s theory finds support only in the
dissent, which depicts the majority opinion as inconsistent with authority it
toward killing another person; [¶] AND [¶] . . . intended to kill that person.”
To qualify as a “direct step,” the instruction clarifies, an act must “indicate[]
a definite and unambiguous intent to kill.” Defense counsel argued as follows:
“the instructions for a direct step [require] . . . an act that shows that you had
an unambiguous . . . intent to kill . . . . [¶] . . . You have to look at the act. The
act is one stab to the back of Ms. Simmons. This is not a situation where
[defendant] tried to cut[] Ms. Simmons[’s] throat. Tries to stab her in the
head. This is one stabbing to the back. And you have to ask yourself, does
that one act . . . indicate a definite and unambiguous intent to kill? [¶] . . .
[¶] . . . [Y]ou really have to . . . question whether or not this act would have
resulted in death. Completely different situation from if [defendant had]
continued to stab Ms. Simmons. The State would have a much stronger case
here. They could argue, look, if he didn’t stop stabbing Ms. Simmons, death
would have been likely but here you have one stab in the back and the state’s
argument relies a lot . . . on what potentially could have happened. [¶] But
you heard from [the defense medical expert] that it was pretty unlikely that
this [stabbing] is going to result in . . . serious injury. There is no evidence
that this was going to result in . . . death.”
10
reads to require a concession. (Aledamat, supra, 8 Cal.5th at pp. 21–22 (conc.
& dis. opn. of Cuellar, J.).) On that disputed point, we must follow the
majority’s contrary view.
Defendant notes that his jury deliberated for 20 hours, submitted many
questions and readback requests, acquitted him of attempted murder, and
found not true the great bodily injury allegation. But the questions and
readbacks all related to the intent element of, and unconsciousness defense to,
attempted murder—not whether the knife was a deadly weapon. Nothing in
the record suggests the jury found that question close.
Defendant likens this case to People v. Baratang (2020) 56 Cal.App.5th
252, in which our colleagues in Division Three distinguished Aledamat. The
instructional error in Baratang concerned a charge of felony theft from an
elder (§ 368, subd. (d)) prosecuted on alternative theories of theft by larceny
and by identity theft. (Id. at pp. 255–257.) The trial court erroneously
instructed the jury that only the first theory requires a theft of at least $950.
(Baratang, supra, at pp. 257–258.) In fact, each theory is subject to a $950
minimum. (Id. at p. 262.) The prejudice inquiry thus turned on whether jurors
could have found the defendant guilty on the identity-theft theory without
finding that he stole at least $950. (Id. at p. 263.) The Baratang court held
that, “[u]nlike the situation in Aledamat, we cannot ‘rule out a reasonable
possibility’ that the jury relied on the identity theft theory.” (Baratang,
supra, at p. 264.) There, in closing argument the prosecutor relied heavily on
the lack of a monetary threshold to urge jurors to rely on an identity-theft
theory. (Ibid.) Because the prosecutor here did not urge jurors to rely on the
“inherently deadly” theory, Baratang affords no basis to distinguish Aledamat
or to find the instructional error prejudicial.
11
Disposition
The judgment is affirmed.
POLLAK, P. J.
WE CONCUR:
STREETER, J.
GOLDMAN, J.
12