People v. Hernandez CA2/3

Filed 5/21/21 P. v. Hernandez CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B305559
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA472115)
v.
CESAR STEVE HERNANDEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Richard S. Kemalyan, Judge. Affirmed.
William Paul Melcher, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Steven E. Mercer, Deputy
Attorneys General, for Plaintiff and Respondent.
——————————
A jury convicted Cesar Steve Hernandez of petty theft and
assault with a deadly weapon. Hernandez contends his assault
conviction must be reversed because the trial court erred when it
instructed the jury on a legally inapplicable theory of guilt that
the glass bottle Hernandez used during the assault was an
inherently deadly weapon. We agree that the trial court erred,
however, the error was harmless. Therefore, we affirm the
judgment.
BACKGROUND
I. The assault with a deadly weapon
In the early morning of October 5, 2018, Hernandez walked
into a convenient store, took a sandwich from the store shelf, and
tried to microwave it. The store clerk told Hernandez that he
needed to pay for the sandwich before using the microwave.
Hernandez appeared angry and put the sandwich back, but
remained in the store. The clerk told Hernandez that he needed
to leave if he was not going to purchase anything. Hernandez
left.
Shortly thereafter, Hernandez returned to the store, took a
bag of chips, and exited without paying for them. The clerk
picked up a metal rod and followed Hernandez outside. When
the clerk tried to scare Hernandez by swinging the rod at him,
Hernandez pulled out a glass bottle from his backpack and the
clerk retreated back into the store, closing the glass double doors.
Hernandez forced open one of the doors and threw the bottle at
the clerk who was a few feet away. The bottle flew over the
clerk’s shoulder and shattered when it hit the ground.1
1 The clerk told police that the bottle missed him by several
inches, however, at trial, he testified that the bottle struck him
2
After Hernandez threw the bottle at the clerk, he struck
the glass double doors with two unidentified objects, shattering
one door and cracking the other. The incident was recorded on
the store’s surveillance cameras.
II. Procedure
An information charged Hernandez with second degree
robbery (Pen. Code,2 § 211; count 1), assault with a deadly
weapon (§ 245, subd. (a)(1); count 2), and misdemeanor
vandalism (§ 594, subd. (a); count 3). As to count 1, the
information alleged Hernandez personally used a deadly and
dangerous weapon, a glass bottle, within the meaning of sections
12022, subdivision (b)(1) and 1192.7, subdivision (c)(23). As to
counts 1 and 2, the information alleged Hernandez suffered three
serious or violent convictions within the meaning of sections 667,
subdivisions (a)(1) and (d); 1170.12, subdivision (b); and 667.5,
subdivision (b).
A jury found Hernandez not guilty of robbery as charged in
count 1, but guilty of the lesser-included offense of petty theft in
violation of section 484, subdivision (a). It also found Hernandez
guilty of assault with a deadly weapon and misdemeanor
vandalism.
On January 23, 2020, the trial court sentenced Hernandez
to 13 years in prison and ordered him to pay various fines, fees,
and victim restitution. Hernandez appealed.
on the upper left forearm and that he experienced pain and
noticed a quarter-sized lump the day after the incident.
2 All further statutory references are to the Penal Code.
3
DISCUSSION
Hernandez’s sole claim on appeal is that the assault with a
deadly weapon conviction must be reversed because the trial
court erroneously instructed the jury on an inapplicable theory of
guilt, specifically, that the glass bottle was an inherently deadly
weapon. The People concede the error but argue that the error
was harmless. We agree with the People.
The jury was instructed with CALCRIM No. 875, which
provided in relevant part: “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.”3 CALCRIM
No. 875 did not define “inherently deadly.”4 Because a glass
3 CALCRIM No. 875 listed the elements of the offense as
follows: “1. The defendant did an act with a deadly weapon other
than a firearm, a glass bottle, that by its nature would directly
and probably result in the application of force to a person; [¶]
2. The defendant did that act willfully; [¶] 3. When the
defendant acted, he 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 [¶] 4. When the defendant acted he had the
present ability to apply force with a deadly weapon.”
4 The jury was instructed with CALCRIM No. 3145 which
provided that, in “deciding whether an object is a deadly or
dangerous 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 any other
evidence that indicates whether the object would be used for a
dangerous, rather than a harmless, purpose.” However, the jury
4
bottle is not inherently deadly as a matter of law, Hernandez
contends that the jury could have convicted him based on this
legally invalid theory.
A trial court has a duty to instruct “ ‘on general principles
of law relevant to the issues raised by the evidence and necessary
for the jury’s understanding of the case.’ ” (People v. Townsel
(2016) 63 Cal.4th 25, 58.) We review challenges to jury
instructions de novo. (People v. Baratang (2020) 56 Cal.App.5th
252, 259.) When a defendant claims instructional error based on
a legally inadequate theory of guilt, our Supreme Court requires
us to apply the harmless beyond a reasonable doubt standard
articulated in Chapman v. California (1967) 386 U.S. 18, 24 to
claims of instructional error that are based on a legally
inadequate theory of guilt. (People v. Aledamat (2019) 8 Cal.5th
1, 7–9 (Aledamat).) Under that standard, we “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.”
(Id. at p. 13.)
Hernandez’s contention is governed by our Supreme
Court’s decision in Aledamat, supra, 8 Cal.5th 1. In that case,
the jury found the defendant guilty of assault with a deadly
weapon after he thrust a box cutter toward the victim. (Id. at
p. 4.) The trial court instructed the jury with the same version of
CALCRIM No. 875 at issue here. (Id. at pp. 3–4.) Aledamat at
page 6 found that, while CALCRIM No. 875 accurately stated the
law, the evidence did not support the instruction because a box
was instructed to consider this definition only if it first found that
Hernandez was guilty of robbery.
5
cutter is not an inherently dangerous or deadly weapon as a
matter of law. “ ‘As used in section 245, 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.” [Citation.] Some few
objects, such as dirks and blackjacks, have been held to be deadly
weapons as a matter of law; the ordinary use for which they are
designed establishes their character as such. [Citation.] Other
objects, 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.’ ” (Aledamat, at p. 6.) Allowing
the jury to consider the theory that the box cutter was inherently
deadly was legal error. (Id. at p. 7.)
Nonetheless, Aledamat, supra, 8 Cal.5th at page 13 held
that the error was harmless “after examining the entire cause,
including the evidence, and considering all relevant
circumstances.” Significantly, the court pointed to a number of
relevant circumstances that convinced it that that the error did
not impact the verdict. First, Aledamat reasoned that while the
plain text of CALCRIM No. 875 technically suggested that an
object could be a deadly weapon in two distinct ways, inherently
or as used, reading all of the instructions in context dispelled this
interpretation. The jurors were explicitly instructed on
CALCRIM No. 3145 that they had to consider all of the
surrounding circumstances in deciding whether an object is a
deadly weapon. Thus, Aledamat held, it was unlikely that the
jury could find the box cutter an inherently deadly weapon
6
without first considering the surrounding circumstances,
including how defendant used it. (Id. at pp. 13–14.) Second,
while the prosecutor stated that the box cutter was inherently
deadly, neither he nor defense counsel suggested there were two
separate ways the jury could find that box cutter was a deadly
weapon. (Id. at p. 14.) The court noted that while defense
counsel did not expressly concede that the box cutter was a
deadly weapon, he did not contest that point either because it
would have been futile. (Ibid.) Third, Aledamat reasoned it
would have been impossible for the jury not to find the box cutter
was capable of causing and likely to cause death or bodily injury
based on other facts the jury necessarily found, i.e., that
“(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.” (Id. at p. 15.)
“ ‘No reasonable jury that made all of these findings could have
failed to find’ that defendant used the box cutter in a way that is
capable of causing or likely to cause death or great bodily injury.”
(Ibid.)
Here, as in Aledamat, the trial court committed legal error
when it permitted the jury to consider that the glass bottle was
an inherently deadly weapon.5 However, like Aledamat, after
5 We reject the People’s argument that the error was
factual rather than legal. Had the trial court explained the
difference between an inherently deadly weapon and an object
that is dangerous as used, the error would have been purely
7
reviewing the entire cause, including all of the relevant
circumstances, we find the error was harmless beyond a
reasonable doubt. First, just as in Aledamat, the jurors were
informed of CALCRIM No. 31456 and expressly instructed to
consider all of the surrounding circumstances, including how
Hernandez used the bottle, in determining whether the bottle
was a deadly weapon. Thus, it is unlikely that the jury did not
consider the manner in which the glass bottle was used and
simply found that it was inherently dangerous. Undeniably, it is
common knowledge that a bottle is used to store liquid and
ordinarily appears less dangerous than a box cutter. To be clear,
if our high court was confident that the Aledamat jury, upon
considering the instructions in context, did not find that a box
cutter was inherently dangerous, we are equally assured that a
similarly instructed jury here did not find that the glass bottle
was inherently deadly or dangerous.
Second, neither the prosecutor nor defense counsel
suggested there were two separate ways to find that the bottle
was a deadly weapon. In fact, during closing argument, the
prosecutor made clear that the bottle was not inherently deadly
but became deadly as result of Hernandez’s conduct. “A bottle by
itself is nothing. You recycle it. It’s a good container. It contains
our drink. It’s great. It’s got a useful purpose, but depending on
factual. (See Aledamat, supra, 8 Cal.5th at p. 8.) However, the
jury was not provided with this distinction, therefore, the error
was legal.
6 The trial court read this instruction to the jury as an
enhancement to count 1, the robbery charge, provided a written
copy to the jury and the prosecutor argued this instruction to the
jury in closing argument.
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how you use it, it could become a deadly weapon especially if
you’re trying to hit somebody with it. I hope nobody here has
been hit with a glass bottle, but if you were, it will not be
pleasant. I think we all know that you don’t have to be—you
don’t have to have first-hand experience to understand that. If
someone is trying to hit you with a glass bottle, that is assault
with a deadly weapon, and you don’t have to be hit by that and
actually sustain injury, like stitches.” The prosecutor employed
the surveillance footage to underscore that the manner in which
Hernandez used the bottle made it dangerous. “Look at
Mr. Hernandez’s body. It’s not just a toss. It’s not bottle tossing.
Look at his body, his other arm, both legs, and then pulling his
right hand all the way back and then throwing it. It’s pretty
violent. His intent is very clear. He’s aiming. His target is the
store clerk who wouldn’t let him go with the bag of chips.”
Despite Hernandez’s contention to the contrary, the prosecutor’s
closing argument did not rely on a theory that the bottle was
inherently dangerous. Indeed, the prosecutor took time to clarify
that the bottle was dangerous as used and became a deadly
weapon only when Hernandez violently threw the bottle at the
clerk.
Moreover, just as in Aledamat, defense counsel did not
contest that Hernandez used the bottle in a way that was
dangerous or likely to cause great bodily injury. Indeed,
contesting the point would have been futile because the evidence
was overwhelming that Hernandez threw the bottle with enough
force to seriously injure the clerk. To be sure, the surveillance
video showed Hernandez violently throw the bottle, which
narrowly missed the clerk, and then shattered on the ground.
Rather than dispute this damning evidence, defense counsel
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chose to rely on a theory that Hernandez was mentally unstable
and threw the bottle in response to what Hernandez perceived to
be a “a real and serious violent threat” from the clerk.
Third, the jury necessarily found that (1) Hernandez 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) Hernandez 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) Hernandez had the present ability to apply
force with a deadly weapon to a person. Under the record before
us, as in Aledamat, no reasonable jury that made all of these
findings could have failed to find that defendant used the bottle
in a way that is capable of causing or likely to cause great bodily
injury. In sum, because the jury was instructed to consider all of
the surrounding circumstances, Hernandez never disputed that
the bottle was being used as a deadly weapon, the prosecutor
clarified that the glass bottle was not an inherently dangerous
weapon, and the evidence that Hernandez used the bottle in a
manner that was capable of producing and likely to produce great
bodily injury (i.e., as a deadly weapon) was overwhelming, we
find the instructional error harmless beyond a reasonable doubt.
(See Aledamat, supra, 8 Cal.5th at p. 5.)
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
KALRA, J.*
We concur:
EDMON, P. J.
LAVIN, J.
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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