THE PEOPLE, Plaintiff and Respondent, v. NATHANIEL SHANE STUTELBERG, Defendant and Appellant.
D073266
(Super. Ct. No. SCD270982)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Filed 11/21/18
CERTIFIED FOR PUBLICATION
Leo Valentine, Jr., Judge.
Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Michael D. Butera, Deputy Attorneys General, for Plaintiff and Respondent.
As to the offense against Michelle, we conclude the instructional error was harmless beyond a reasonable doubt. We have no difficulty deciding from the record that the jury would have reached the same verdict but for the error. We reach a different result as to the crime involving Chris. Stutelberg‘s use of the box cutter in that encounter is more nebulous, and on the record before us we cannot conclude that the instructional error was harmless beyond a reasonable doubt. Accordingly, we reverse his conviction for assault with a deadly weapon in count 3 but otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Stutelberg arrived at a bar one evening, intoxicated and wearing no shirt. He was yelling and arguing with the bouncer and assistant manager, who were denying him entry into the bar. A few minutes later, Stutelberg retreated from the bar but continued to yell at the bouncer and assistant manager while standing next to his friend‘s car. Michelle, a bar patron, approached the female passenger sitting in the parked car. She urged the
Michelle‘s friend Chris and Missael O., a bar employee, walked toward Michelle. Stutelberg started “flicking” a box cutter toward their faces. Chris yelled that he saw a knife. Stutelberg swung a fist at Chris but missed. Michelle grabbed Stutelberg and pushed him into a light pole. Stutelberg punched Michelle and cut the back of her head with the box cutter.
The San Diego County District Attorney charged Stutelberg by amended information with aggravated mayhem against Michelle (
The jury convicted Stutelberg of mayhem (
The court sentenced Stutelberg to a three-year prison term on count 1, consisting of the two-year low term plus a year for the deadly weapon enhancement. It imposed a concurrent two-year low term sentence on count 3.
DISCUSSION
To consider the assault with a deadly weapon charge in count 3 and the deadly weapon enhancement in count 1, the jury had to determine whether the box cutter Stutelberg used was a deadly weapon. The court instructed jurors under CALCRIM No. 875, the assault instruction, in part 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 it is capable of causing and likely to cause death or great bodily injury.”
It also provided the jury with CALCRIM No. 3145 as to the enhancement, which contained similar language:
“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 it is capable of causing and likely to cause death or great bodily injury. [¶] In deciding whether an object is a deadly weapon, consider all 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.”
These instructions are flawed because they suggest the jury might properly conclude that a box cutter is inherently dangerous. A box cutter, however, is not an inherently deadly weapon as a matter of law. (People v. McCoy (1944) 25 Cal.2d 177, 188.)
The parties do not dispute that the inclusion of language regarding an “inherently deadly weapon” in CALCRIM No. 3145 was instructional error. Instead, they disagree on whether the error was prejudicial. That narrow question turns on a two-step inquiry: (1) whether the error was factual error or legal error; and (2) what prejudice standard applies.
As we explain, the instructional error in this case is legal in nature, and we therefore employ the traditional Chapman standard to evaluate prejudice. (Chapman v. California (1967) 386 U.S. 18 (Chapman).) Applying that standard to Stutelberg‘s convictions, we conclude the error was harmless as to his conviction in count 1 involving Michelle but prejudicial as to his conviction in count 3 involving Chris. Accordingly, we reverse the judgment of conviction as to count 3 and remand for further proceedings.
1. The instructions presented a legally (rather than factually) invalid theory
As noted, the jury in this case should not have been instructed on an “inherently dangerous” weapon. The only weapon involved in the case was a box cutter, and it is not inherently dangerous as a matter of law. The threshold question is whether this error was factual or legal. Stutelberg contends the error was legal, whereas the People claim the error was factual. We conclude Stutelberg is correct.
A legal error is an incorrect statement of law, whereas a factual error is an otherwise valid legal theory that is not supported by the facts or evidence in a case.
The People argue the error was factual because the jury was simply given otherwise correct instructions about a legal theory that was inapplicable to the facts of the case. In other words, because a box cutter is not inherently dangerous, the jury was presented with a factually inapplicable theory even though the instruction may have been a correct statement of law in the abstract.
We disagree. An “inherently deadly or dangerous” weapon is a term of art describing objects that are deadly or dangerous in “the ordinary use for which they are designed,” that is, weapons that have no practical nondeadly purpose. (People v. Perez (2018) 4 Cal.5th 1055, 1065.) But the jurors were never provided with this definition, and they could reasonably classify a box cutter, which is sharp and used for cutting, as inherently dangerous based on the common understanding of the term. This amounts to legal, rather than factual, error.
“There was no failure of proof—that is, a failure to show through evidence that the box cutter is an ‘inherently dangerous’ weapon. Instead, a box cutter cannot be an inherently deadly weapon ‘as a matter of law.’ [Citation.] This is functionally indistinguishable from a situation in which a jury is instructed that a particular felony can be a predicate for felony murder when, as a matter of law, it cannot be.” (Ibid.)3
2. We evaluate prejudice under the Chapman standard
The parties agree that we apply the Chapman standard (Chapman, supra, 386 U.S. at p. 24) to evaluate an instruction that improperly defines an element of a charged offense. (See People v. Brown (2012) 210 Cal.App.4th 1, 12–13 (Brown) [applying Chapman to evaluate prejudice from an instruction allowing the jury to incorrectly
Where the parties disagree is whether we evaluate the particular type of instructional error here under a heightened Chapman inquiry. Citing Aledamat, supra, 20 Cal.App.5th 1149, 1154, Stutelberg claims reversal is required absent an affirmative showing that no juror relied on the invalid theory. The People, in turn, maintain that Aledamat was wrongly decided. Aledamat is currently pending review on whether its affirmative showing standard is a proper interpretation of Chapman. Absent further guidance from the Supreme Court, we believe the traditional “harmless beyond a reasonable doubt” framework is the proper standard to apply.
As recently as 2017, the Supreme Court held that error in instructing on the elements of a crime is harmless “so long as the error does not vitiate all of the jury‘s findings” (People v. Merritt (2017) 2 Cal.5th 819, 829, 831 (Merritt), italics added), i.e., if “it is clear beyond a reasonable doubt that a rational jury would have rendered the same verdict absent the error.” (Id. at p. 831.) The Supreme Court likewise recently held that instructing on an invalid legal theory may be harmless when ” ‘other aspects of the verdict or the evidence leave no reasonable doubt that the jury made findings necessary’ ” to
As a practical matter, evidence regarding the effect of statements or events on the mental processes of a juror is inadmissible to impeach a verdict. (
3. Applying Chapman reveals harmless error as to count 1 but prejudice as to count 3
The flawed deadly weapon instruction related to (1) the one-year deadly weapon enhancement for the mayhem charge (as to Michelle); and (2) the assault with a deadly weapon charge (as to Chris). Because the jury received different evidence and testimony as to each encounter, we must independently analyze prejudice as to each conviction.
a. Michelle (count 1, mayhem with a deadly weapon enhancement)
The error was harmless as to the deadly weapon enhancement for the mayhem conviction. The evidence and testimony clearly indicated that Stutelberg sliced the back of Michelle‘s head from her left temple to the bottom of her hairline during a bar fight. After he swung at Chris but missed, Michelle pushed him into a light pole, sparking a physical altercation between Stutelberg and Michelle. Several witnesses testified that they saw him stab the back of Michelle‘s head with a box cutter. Stutelberg conceded using the box cutter to lacerate Michelle but claimed he did so in self-defense.
“[T]here was ample evidence at trial Brown used the BB gun in a manner capable of inflicting and likely to inflict great bodily injury. That evidence, as well as the arguments of counsel, leave no reasonable doubt the jury found Brown guilty on this basis and not because it concluded the BB gun, regardless of the manner in which it was used, was ‘inherently dangerous.’ ” (Id. at p. 13.)
The evidence and the arguments of counsel here likewise created no reasonable doubt as to whether the jury would decide Stutelberg used the box cutter as a deadly weapon against Michelle under the proper definition. Using a sharp box cutter to stab a victim‘s head undoubtedly qualifies as using the item “in such a way that it is capable of causing and likely to cause death or great bodily injury,” as shown by the bodily injury that resulted. (Brown, supra, 210 Cal.App.4th at p. 11.) The wound bled, soaking Michelle‘s shirt. She required stitches and was still suffering from residual nerve damage at trial, roughly eight months after the incident.
The prosecutor‘s closing argument likewise did not suggest Stutelberg suffered any prejudice. As the parties agree, the prosecutor did not expressly refer to the “inherently deadly weapon” theory. Nor did his other statements invite the jury to classify the box cutter as inherently deadly. Stutelberg is correct that the prosecutor stated “personal use
b. Chris (count 3, assault with a deadly weapon)
We reach a different result as to Stutelberg‘s assault with a deadly weapon conviction in count 3 involving Chris. Unlike Michelle, whom Stutelberg severely injured, Chris was not harmed. Stutelberg “swung” at Chris but missed. It is unclear which arm Stutelberg swung and if he was holding the box cutter in that same hand. On cross-examination, Chris admitted that it “wasn‘t as though [Stutelberg] had a razor in his hand and he‘s jabbing at [his] face.” Although Missael testified that Stutelberg jabbed a box cutter at both Chris and him in a manner likely to cause great bodily injury, the jury apparently disbelieved his testimony, acquitting Stutelberg of assault with a deadly weapon against Missael. The exact manner in which Stutelberg used the box cutter against Chris is thus unclear. The jury could reasonably conclude that his “flicking” motion was more of a threat, as opposed to an act likely to cause death or great bodily
The error is prejudicial for reasons similar to those found in People v. Hudson (2006) 38 Cal.4th 1002. There, the jury convicted the defendant of eluding a pursuing police officer, a crime requiring the officer‘s vehicle to be “distinctively marked.” (Id. at p. 1006.) The jury, however, was not told that a “distinctively marked” police vehicle must have at least one additional police-like feature besides a red light and a siren. (Id. at p. 1013.) The Supreme Court reversed the conviction because the jury could have wrongly classified the police car as “distinctively marked” based solely on its light and siren. (Id. at p. 1014). Similarly, the flawed instruction in this case could have caused the jury to misclassify the box cutter as an “inherently” deadly weapon. Given the factual uncertainty as to whether Stutelberg used the box cutter in a manner likely to cause Chris serious physical injury, we cannot say beyond a reasonable doubt that a properly instructed jury would have found that Stutelberg necessarily used the box cutter in a deadly or dangerous manner. Accordingly, the conviction on count 3 must be reversed.5
The judgment of conviction as to count 3 is reversed and the matter is remanded for further proceedings consistent with this opinion, which may include retrial on count 3 and/or recalculation of applicable fines and fees. In all other respects, the judgment is affirmed.
DATO, J.
WE CONCUR:
IRION, Acting P. J.
GUERRERO, J.