Filed 11/5/20 P. v. Balcha CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

TALEW CHEWAKA BALCHA,

Defendant and Appellant.

D076330

(Super. Ct. No. SCS304761)

APPEAL from a judgment of the Superior Court of San Diego County, 

Garry G. Haehnle, Judge. Affirmed.

Heather L. Beugen, under appointment by the Court of Appeal, for 

Defendant and Appellant. 

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Julie L. Garland, Assistant Attorney General, Daniel 

Rogers and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff 

and Respondent.
2

Defendant Talew Balcha was charged with assault with a deadly 

weapon (Pen. Code, § 245, subd. (a)(1)),1 with great bodily injury 

enhancement allegations (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8)), after he 

struck an acquaintance with a bladed object, allegedly in self-defense. The 

jury found Balcha guilty and found the enhancement allegations to be true. 

The trial court sentenced him to six years in prison. 

On appeal, Balcha contends the trial court erred by including 

inherently deadly weapons in CALCRIM No. 875’s definition of “deadly 

weapon” because he maintains the bladed object he used was not inherently 

deadly as a matter of law. On the record before us—where Balcha admitted 

he “swung” the bladed object at the victim, “stab[bed]” him with it, and 

stipulated that he inflicted numerous injuries—we conclude any alleged 

instructional error was harmless beyond a reasonable doubt. Accordingly, we 

affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The Offense

Balcha and the victim, M.S., moved from Ethiopia to the United States, 

where they met while working together at a convenience store in 2011. They 

considered each other coworkers and acquaintances, but not friends. At some 

point, they both began driving taxicabs. 

In early October 2018, Balcha accused M.S. of stealing a customer from 

him at a downtown hotel. According to M.S., Balcha became “aggressive” and 

“started cursing [him] out,” so M.S. left. According to Balcha, M.S. insulted 

him using an Ethiopian tribal slur. M.S. denied doing so. 

1 Further undesignated statutory references are to the Penal Code.
3

On October 28, the day of the assault, Balcha and M.S. encountered 

each other several times. According to M.S., that morning he was first in line 

at a taxi stand downtown when Balcha blocked him in and said, “I am going 

to find you and kill you.” According to Balcha, he was in line at the taxi 

stand when he saw M.S. pull up behind him, so Balcha left the area to avoid 

any trouble. 

About one hour later, they encountered each other again at an 

intersection near the harbor. According to Balcha, M.S. repeated the tribal 

insult and added, “I am going to kill you.” When the traffic light turned 

green, M.S. drove off. 

The assault occurred when Balcha and M.S. encountered each other 

again at about 1:00 p.m. while dropping off passengers at a campground in 

Chula Vista. Balcha dropped his passengers first, and drove out of the 

campground. According to M.S., Balcha threatened him as he left. According 

to Balcha, M.S. repeated the tribal insult, threatened to kill him, and 

suggested that Balcha wait for him down the road. Balcha decided he would 

wait down the road so he could find out why M.S. was insulting him. A third 

taxicab driver at the campground testified he saw Balcha looking angrily at 

M.S., who did not look angry or say anything to Balcha. 

Balcha left the campground and stopped on the side of the road. The 

third taxicab driver left next, and stopped in the traffic lane next to Balcha to 

ask if everything was okay. Balcha responded that M.S. had insulted him. 

The driver told Balcha to “take it easy,” but Balcha’s “anger [was] getting 

worse.” 

M.S. exited the campground and stopped behind the cabs blocking the 

road. Balcha got out of his cab, approached the passenger side of M.S.’s cab, 

started arguing, and kicked the door of M.S.’s cab. M.S. tried to leave but 
4

was pinned in by traffic. Balcha claimed M.S. insulted and threatened to kill 

him during this argument. M.S. asked, “What’s wrong [with you],” got out of 

his cab, and went around to inspect the damage. He observed a large dent, 

which he later paid $300 to repair. M.S. was so upset that he went to the 

passenger side of Balcha’s cab and kicked the door, causing little to no 

damage. 

According to M.S., Balcha came charging at him from around the cab

and started a physical altercation. According to Balcha, he approached M.S. 

to get him to stop kicking the cab, and M.S. grabbed Balcha’s throat and tried 

to choke him. The men fell to the ground, got back up, and fought. The third 

cab driver stayed out of the way and called 911. 

Balcha and M.S. both testified that during the ensuing altercation, 

Balcha pulled out some sort of bladed object and repeatedly struck M.S. with 

it—at least seven times, according to M.S. Balcha delivered the final blow 

when M.S. was on the ground, which Balcha admitted may have been 

“excessive.” 

Police and paramedics responded to the scene. A police officer testified 

he saw blood “spurt” from a “large laceration” or “deep cut” on M.S.’s head. A 

paramedic testified he saw numerous lacerations and a puncture wound on 

M.S. consistent with knife wounds. Because the puncture wound could be 

fatal if too deep, medical personnel asked Balcha how long his “knife” was. 

Balcha did not correct their use of the word “knife,” and indicated with his 

hands that it was between three and four inches long. The paramedic 

bandaged M.S. and transported him to the hospital. The police officer 

accompanied M.S. because the officer “knew that his injuries seemed to be 

severe.” 
5

The parties stipulated that M.S. was treated at the hospital for the 

following injuries: (1) a 10-centimeter laceration from above the right eye 

extending to the right ear; (2) a three-centimeter laceration to the jaw; (3) 

approximately five superficial, small lacerations to the head; (4) swelling to 

the right periorbital region; (5) a two-centimeter laceration to the posterior 

neck; (6) a three-centimeter laceration to the left arm; (7) a stab wound on 

the right side of the neck; (8) a hematoma on the right side of the scalp; and 

(9) a chip fracture of the right temporal bone. 

Balcha sustained a laceration on the little finger of his right hand. 

Balcha’s bladed object was never recovered, and he admitted at trial 

that he may have told police he threw it into a river. He described the object 

as “[a]n apple cutter” with a two and one-half inch handle and a two and onehalf inch folding blade. He said he only used it to cut fruit, and had never 

“used this blade as a weapon before.” He admitted he “swung this blade—

this apple cutter at [M.S.],” and used it to “stab” M.S. when he was on the 

ground. M.S. and the other cab driver testified they did not see the object. 

A security camera at a condominium complex about 275 feet away 

captured the assault, and the footage was played at trial. 

B. Charges, Verdicts, and Sentencing

Balcha was charged with assault with a deadly weapon (§ 245, subd. 

(a)(1)), with great bodily injury enhancement allegations (§§ 12022.7, subd. 

(a), 1192.7, subd. (c)(8)); and vandalism (§ 594), for kicking M.S.’s cab door. 

At trial, Balcha claimed self-defense on the assault count, and conceded 

the vandalism count. After deliberating for about one hour, the jury found 

Balcha guilty on both counts and found the great bodily injury enhancement 

allegations to be true.

The trial court sentenced Balcha to six years in prison. 
6

II. DISCUSSION

Balcha contends the trial court erred by including “inherently deadly”

weapons in CALCRIM No. 875’s definition of “deadly weapon” because he 

maintains the bladed object he used was not inherently deadly as a matter of 

law. The Attorney General maintains the instruction was proper because the 

jury could have found that the bladed object was an inherently dangerous 

dirk or dagger. Alternatively, the Attorney General contends any 

instructional error was harmless. We agree that any error was harmless 

beyond a reasonable doubt, and therefore need not determine whether the 

bladed object was inherently deadly.

A. Background

The trial court instructed the jury on the elements of assault with a 

deadly weapon using CALCRIM No. 875, which states in pertinent part:

“To prove that the defendant is guilty of [assault with a 

deadly weapon other than a firearm], the People must 

prove that:

“1. The defendant did an act with a deadly weapon other 

than a firearm 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 a person;

“4. When the defendant acted, he had the present ability to 

apply force with a deadly weapon other than a firearm to a 

person; [¶] AND

“5. The defendant did not act in self-defense. [¶] . . . [¶]

“A deadly weapon other than a firearm is any object, 

instrument, or weapon [a] that is inherently deadly or [b]
7

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 did not define “inherently deadly.” 

The prosecutor argued in closing that she did not “think Elements 1 

through 4 are in dispute,” so she was only “going to talk . . . about” “Element 

No. 5, whether or not the defendant acted in self-defense.” 

In portraying Balcha as the aggressor, the prosecutor emphasized he 

had “hit the victim more than seven times with the knife,” and that M.S.’s 

“deep lacerations and deep puncture wounds . . . require[d] a certain amount 

of force.” Similarly, she argued Balcha sustained the “laceration to his hand 

because that is what happens when you’re holding a knife with a long blade 

and you are using so much force to stab repeatedly at someone that [the] 

knife will slip up and cut your hand.” 

After explaining why she believed Balcha had not acted in self-defense, 

the prosecutor explained to the jury that the only difference between the 

charged offense of assault with a deadly weapon and the lesser included 

offense of simple assault is that the latter is established “if you find that 

there was no deadly weapon that was used.” She then discussed CALCRIM 

No. 875’s definition of deadly weapon:

“Now, a deadly weapon is an object, instrument, or weapon 

that is inherently deadly or one that is used in a way that 

is capable of causing death or great bodily injury. So a 

knife or if you want to call it an apple cutter, a sharp, 

pointy object with a blade is a deadly weapon, and we have 

had overwhelming evidence that a deadly weapon was used 

from the witnesses and from the defendant himself. So this 

is not an issue.” 

The prosecutor concluded by explaining that if the jury found Balcha’s 

self-defense claim viable, then the jury should find him not guilty of both 

assault with a deadly weapon and simple assault.
8

As predicted, defense counsel devoted her entire closing argument to 

self-defense. She argued Balcha used his bladed object only as a last resort:

“It wasn't until he was choked that he decided to get 

physical. And it was in fear for his life that he grabbed 

that blade. And it was in fear for his life that he swiped 

and punched and did what he could until the threat was 

over. [¶] This is a man who has never been in a fight 

before. This is a man who has gone almost 49 years 

without ever using this apple cutter as a blade, without 

ever using it as a weapon, without ever using it on 

somebody, because it was never that tool for him. It was 

never going to be a weapon. [¶] And he never used it as a 

weapon until he was forced to.” (Italics added.) 

In rebuttal, the prosecutor focused on Balcha’s attempt to “minimize[] 

the weapon”: 

“He is calling it an apple peeler or an apple cutter. He is 

saying the blade is only two and a half inches. I mean, do 

you know what kind of force it would take to take a small, 

light, skinny apple cutter—or, you know, tiny little folding 

blade of two and a half inches to cause the injuries that 

were caused? [¶] I mean that would really take some 

serious effort at close range to be penetrating the skin in 

those ways that you see in those pictures. And if you are 

using that force and that effort, you are not just putting 

your hands up and trying to back off a person and get them 

away. You are trying to inflict pain, hurt them, or kill 

them.” 

B. Legal Principles

“ ‘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 
9

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.’ ” (People v. Aledamat (2019) 8 Cal.5th 1, 6 

(Aledamat).)

When a defendant commits an assault with an object that is not 

inherently deadly as a matter of law, a trial court errs by instructing the jury 

with a definition of “deadly weapon” that includes both the invalid inherently 

deadly theory and the valid as-used theory. (Aledamat, supra, 8 Cal.5th at 

p. 7.) This “alternative-error theory is subject to the more general Chapman

[v. California (1967) 386 U.S. 18] harmless error test,” under which the 

“reviewing court 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.” (Aledamat, at p. 13.) 

The California Supreme Court recently applied these principles in 

Aledamat, in which the defendant thrust a box cutter at the victim while 

threatening to kill him. (Aledamat, supra, 8 Cal.5th at p. 4.) The high court 

concluded that because a box cutter is a type of knife, and because most 

knives are not inherently deadly, the trial court erred by instructing the jury 

with CALCRIM No. 875’s definition of “deadly weapon” because it included 

both the invalid inherently deadly and valid as-used theories. (Aledamat, at 

pp. 6-7.) But the court found “[a] number of circumstances [demonstrated] 

beyond a reasonable doubt that the error was harmless.” (Id. at p. 13.) 

First, the Aledamat court observed that although the alternative 

definitions “[t]echnically” created a potential for prejudice (Aledamat, supra, 
10

8 Cal.5th at p. 13), the risk was mitigated by the fact that CALCRIM No. 875 

“juxtapos[ed]” the inherently deadly definition with the as-used definition, 

thereby “at least indicat[ing] what the ‘inherently deadly’ language was 

driving at” (Aledamat, at p. 14). The court noted the jury was also instructed

with CALCRIM No. 3145 to “consider all of the surrounding circumstances” 

when “deciding whether an object is a deadly weapon.” (Aledamat, at p. 14.)2 

Second, the Aledamat court reasoned that counsels’ closing arguments 

supported the conclusion that the jury was unlikely to have found the box

cutter was deadly without considering how the defendant had used it. 

(Aledamat, supra, 8 Cal.5th at p. 14.) In this regard, the Aledamat court 

observed that neither the prosecutor nor defense counsel “suggested to the 

jury that there were two separate ways it could decide whether the box cutter 

was a deadly weapon” (ibid.), and defense counsel “never argued that, if [the 

defendant] did assault the victim with the box cutter, the box cutter was not 

a deadly weapon” (ibid.). Indeed, on the record before it, the Aledamat court 

found such an argument would have been “futile.” (Ibid.) 

Finally, the Aledamat court posited that the jury “must have 

considered the term ‘inherently deadly’ to mean something.” (Aledamat, 

supra, 8 Cal.5th at p. 15.) In light of what the jury necessarily found in 

deeming the other elements of the assault offense satisfied, the Aledamat

court found that “ ‘[n]o reasonable jury that had made all of these findings 

would have failed to find’ that [the] defendant used the box cutter in a way 

2 CALCRIM No. 3145 states in part: “In deciding 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.]”
11

that is capable of causing or likely to cause death or great bodily injury.” 

(Ibid.)

C. Analysis

We conclude on the record before us that any instructional error 

regarding the definition of a “deadly weapon” was harmless beyond a 

reasonable doubt. 

There was extensive trial testimony about the manner in which Balcha 

used the bladed object. M.S. testified Balcha struck him with it at least 

seven times. Balcha admitted he “swung” the object at M.S., used it to “stab” 

him, and had never “used this blade as a weapon before” (italics added), thus 

impliedly admitting he had used it as a weapon on this occasion. The jury 

saw security footage that, by virtue of being captured from 275 feet away, 

likely emphasized Balcha’s actions rather than the bladed object’s 

characteristics. And there was extensive testimony and a stipulation about 

the nature of M.S.’s injuries, which the paramedic considered potentially 

fatal and the police officer deemed “severe.” 

By contrast, there was very little evidence about the nature of the 

bladed object itself. It was never recovered or produced at trial. Neither M.S. 

nor the third cab driver saw it. And Balcha downplayed it, characterizing it 

as an apple cutter. It is exceedingly unlikely the jury found that the bladed 

object was a deadly weapon without considering the manner in which Balcha

used it.

Based on this evidence, it is not surprising that neither the prosecutor 

nor defense counsel “suggested to the jury that there were two separate ways 

it could decide whether the [bladed object] was a deadly weapon.” (Aledamat, 

supra 8 Cal.5th at p. 14.) To the contrary, both counsel focused on the 

manner in which Balcha used the bladed object. In her initial closing, the 
12

prosecutor observed that both M.S.’s and Balcha’s wounds resulted from the 

application of extreme “force.” Similarly, in her rebuttal, the prosecutor 

again emphasized the “kind of force it would take” for Balcha to have inflicted 

M.S.’s injuries. After reciting CALCRIM No. 875’s definition of “deadly 

weapon,” the prosecutor argued that element “is not an issue” because of the 

“overwhelming evidence . . . from the witnesses and from the defendant 

himself” about how “a deadly weapon was used.” This included Balcha’s 

admission that he “swung” the object at M.S. and “stab[bed]” him with it. 

We recognize the prosecutor included “inherently deadly” when reading 

the definition, and asserted that “a sharp, pointy object with a blade is a 

deadly weapon.” But we find these passing comments are vastly outweighed 

by the prosecutor’s focus on Balcha’s use of the object, which she emphasized 

to undermine his self-defense claim. In this vein, the prosecutor conceded 

that if the jury found Balcha not guilty of assault with a deadly weapon based 

on self-defense, then the jury should also find him not guilty of simple 

assault. This conveyed to the jury that the pivotal question was the viability 

of Balcha’s self-defense claim, not whether the bladed object was a deadly 

weapon. 

For her part, defense counsel never argued Balcha was not guilty 

because the bladed object was not a deadly weapon. (See Aledamat, supra, 8 

Cal.5th at p. 14 [“counsel never argued that, if he did assault the victim with 

the box cutter, the box cutter was not a deadly weapon”].) Rather, she 

focused almost exclusively on his self-defense claim. Indeed, in doing so, 

defense counsel implicitly conceded that Balcha had used the bladed object as 

a deadly weapon—“he never used it as a weapon until he was forced to.” (See 

ibid. [“Although defense counsel did not expressly concede that the box cutter 
13

was a deadly weapon, he did not contest the point.”].) Here, as in Aledamat, 

“[c]ontesting the point would have been futile.” (Ibid.) 

The jury’s necessary findings on other issues further support that the 

jury based its deadly weapon finding on the manner in which Balcha used the 

bladed object and not on its inherent characteristics. As in Aledamat, 

Balcha’s jury necessarily found the other elements of assault were satisfied, 

including that Balcha “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” to M.S. (Aledamat, supra, 8 Cal.5th at p. 15.) The jury 

also expressly found that Balcha “personally inflicted great bodily injury” on 

M.S., strongly suggesting the jury was focused on how Balcha used the 

bladed object, rather than on its inherent characteristics. We are satisfied 

that “ ‘[n]o reasonable jury that made all of these findings could have failed to 

find’ that [Balcha] used the [bladed object] in a way that is capable of causing 

or likely to cause death or great bodily injury.” (Ibid.) 

None of Balcha’s arguments persuade us otherwise. He notes that the 

jury in Aledamat was also instructed with CALCRIM No. 3145 to “consider 

all the surrounding circumstances,” whereas his jury was not. (See 

Aledamat, supra 8 Cal.5th at p. 5.) But this instruction was just one of many 

grounds on which the Aledamat court found the error harmless beyond a 

reasonable doubt. We, too, have based our harmless error finding on many 

grounds.

Balcha also argues his case is distinguishable from People v. Stutelberg

(2018) 29 Cal.App.5th 314, in which our court found similar instructional 

error to be harmless. We are not persuaded. First, although Balcha correctly 

observes that in Stutelberg the “parties agree[d] . . . the prosecutor did not 

expressly refer to the ‘inherently deadly weapon’ theory” (id. at p. 322), we 
14

have already explained why the prosecutor’s comments here did not amount 

to an invocation of the inherently deadly theory, particularly in light of her 

overall emphasis on Balcha’s actual use of the object. (See ibid. [“the 

prosecutor went on to discuss [the defendant]’s use of the razor blade to 

‘swipe’ at the victims and to ‘slash open’ [one victim]’s face.”].) 

Second, Balcha argues his self-defense claim was “stronger” than the 

Stutelberg defendant’s claim. But he fails to explain how the strength of a 

defendant’s self-defense claim has any bearing on whether the object he used 

in self-defense was inherently deadly or deadly as used. Indeed, the 

prosecutor illustrated the independence of these issues by conceding that a 

viable self-defense claim would preclude liability for both assault with a 

deadly weapon and simple assault. 

In sum, because Balcha essentially conceded at trial that he had used a 

bladed object as a deadly weapon (but allegedly did so only in self-defense), 

any error in including “inherently deadly” in the definition of “deadly 

weapon” was harmless beyond a reasonable doubt. 

III. DISPOSITION

The judgment is affirmed.

HALLER, Acting P. J.

WE CONCUR:

AARON, J.

DATO, J.