Filed 3/1/18

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

YAZAN ALEDAMAT,

Defendant and Appellant.

 B282911

 (Los Angeles County

 Super. Ct. No. BA451225)

APPEAL from a judgment of the Superior Court of Los 

Angeles County. Stephen A. Marcus, Judge. Affirmed in part, 

reversed in part, and remanded.

Andrea S. Bitar, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief 

Assistant Attorney General, Lance E. Winters, Senior Assistant 

Attorney General, Steve Mercer, Timothy L. O’Hair and Viet H. 

Nguyen Deputy Attorneys General, for Plaintiff and Respondent.

* * * * * *
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Yazan Aledamat (defendant) thrust the exposed blade of a 

box-cutter toward a man while threatening, “I’ll kill you.” A jury 

convicted him of assault with a deadly weapon and making 

criminal threats. Defendant argues that the assault conviction is 

invalid because the trial court wrongly instructed the jury that a 

“deadly weapon” includes an “inherently deadly” weapon when a 

box cutter is not an inherently deadly weapon as a matter of law. 

(See People v. McCoy (1944) 25 Cal.2d 177, 188 (McCoy).) 

Defendant is correct. Further, because this error placed a legally 

invalid theory before the jury, we are compelled to reverse this 

conviction as well as the enhancement for personal use of a 

deadly weapon, which used the same inapplicable definition of 

“deadly weapon.”

FACTS AND PROCEDURAL BACKGROUND

I. Facts

In October 2016, defendant approached a woman working 

at a lunch truck parked in downtown Los Angeles. He told her 

that he found her attractive and asked her for her phone number; 

she declined, explaining that she was married with children. On 

October 22, 2016, defendant approached the woman’s husband, 

who owned the food truck. Defendant asked, “Where’s your 

wife?” Defendant then told the man that he wanted to “fuck” his 

wife because she was “very hot” and “had a big ass and all of 

that.” When the man turned away to remove his apron, 

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 man at waist level, saying “I’ll kill you.” Two nearby police 

officers on horses intervened and arrested defendant.
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II. Procedural Background

The People charged defendant with (1) assault with a 

deadly weapon (Pen. Code, § 245, subd. (a)(1)),1 and (2) making a 

criminal threat (§ 422). The People further alleged that 

defendant personally used a deadly and dangerous weapon 

(§ 12022, subd. (b)(1)). Additionally, the People alleged 

defendant’s 2014 robbery conviction constituted a prior “strike” 

within the meaning of our Three Strikes Law (§§ 1170.12, subds. 

(a)-(d), 667, subds. (b)-(j)) and a prior serious felony (§ 667, subd. 

(a)(1)).

The matter proceeded to a jury trial. When instructing the 

jury on assault with a deadly weapon and on the personal use 

enhancement, the trial court defined “a deadly weapon” 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 or likely to 

cause death or great bodily injury.”

During the prosecutor’s initial closing argument, he told 

the jury that a “box cutter” was a “deadly weapon” because “[i]f [it 

is] used in a way to cause harm, it would cause harm.” During 

his rebuttal argument, he asserted that the box-cutter was an 

“inherently deadly weapon” because “you wouldn’t want your 

children playing with” it.

The jury returned guilty verdicts on both counts, and found 

the enhancement allegation to be true. After defendant admitted 

his prior conviction, the trial court sentenced defendant to 12 

years in prison on the criminal threats count, comprised of a base 

sentence of six years (three years, doubled due to the prior 

 

1 All further statutory references are to the Penal Code 

unless otherwise indicated.
4

strike), plus five years for the prior serious felony, plus one year 

for the personal use of a deadly weapon. The court imposed a 

concurrent, six-year sentence on the assault count, comprised of a 

base sentence of six years (three years, doubled due to the prior 

strike).

Defendant filed a timely notice of appeal.

DISCUSSION

For purposes of both assault with a deadly weapon and the 

enhancement for personal use of a deadly weapon, an object or 

instrument can be a “deadly weapon” if it is either (1) “inherently 

deadly” (or “deadly per se” or a “deadly weapon[] as a matter of 

law”) because it is “‘“dangerous or deadly” to others in the 

ordinary use for which [it is] designed,’” or (2) “used . . . in a 

manner” “capable of” and “likely to produce[] death or great 

bodily injury,” taking into account “the nature of the object, the 

manner in which it is used, and all other facts relevant to the 

issue.” (People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029

(Aguilar); People v. Graham (1969) 71 Cal.2d 303, 327-328; In re 

Jose R. (1982) 137 Cal.App.3d 269, 275-276; CALCRIM Nos. 875, 

3130)].) A box cutter is a type of knife, and “a knife”—because it 

is designed to cut things and not people—“is not an inherently 

dangerous or deadly instrument as a matter of law.” (McCoy, 

supra, 25 Cal.2d at p. 188.)

Against the backdrop of this law, defendant argues that the 

trial court erred in instructing the jury that it could find the box 

cutter to be an “inherently deadly” weapon. Although the 

instruction the trial court gave is correct in the abstract (People 

v. Velasquez (2012) 211 Cal.App.4th 1170, 1176), the People agree 

that it was inapplicable here, where the weapon was a box cutter. 
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Employing de novo review (People v. Manriquez (2005) 37 Cal.4th 

547, 581), we also agree it was error to give this instruction.

The remaining issue is whether this instructional error was 

prejudicial. This issue turns on whether the error involves the 

presentation of a legally invalid theory to the jury or the 

presentation of a factually invalid theory.

When an appellate court determines that a trial court has 

presented a jury with two theories supporting a conviction—one 

legally valid and one legally invalid—the conviction must be 

reversed “absent a basis in the record to find that the verdict was 

actually based on the valid ground.” (People v. Guiton (1993) 

4 Cal.4th 1116, 1122, 1129.) That basis exists only when the jury 

has “actually” relied upon the valid theory (Aguilar, supra, 

16 Cal.4th at p. 1034; People v. Swain (1996) 12 Cal.4th 593, 

607); absent such proof, the conviction must be overturned—even 

if the evidence supporting the valid theory was overwhelming 

(People v. Sanchez (2001) 86 Cal.App.4th 970, 981-982). By 

contrast, when an appellate court determines that a trial court 

has presented a jury with two legally valid theories supporting a 

conviction—one factually valid (because it is supported by 

sufficient evidence) and one factually invalid (because it is not)—

the conviction must be affirmed unless the “record affirmatively 

demonstrates . . . that the jury did in fact rely on the [factually] 

unsupported ground.” (Guiton, at p. 1129.) These different tests 

reflect the view that jurors are “well equipped” to sort factually

valid from invalid theories, but ill equipped to sort legally valid 

from invalid theories. (Id. at p. 1126.)

We conclude that the trial court’s instruction defining a 

“dangerous weapon” to include an “inherently dangerous” object 

entails the presentation of a legally (rather than factually) 
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invalid theory. 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.” (McCoy, supra, 

25 Cal.2d at p. 188.) This is functionally indistinguishable from 

the 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. Because this latter situation involves the presentation 

of a legally invalid theory (People v. Smith (1984) 35 Cal.3d 798, 

808), so does this case.

Further, we must vacate the assault conviction because 

there is no basis in the record for concluding that the jury relied 

on the alternative definition of “deadly weapon” (that is, the 

definition looking to how a non-inherently dangerous weapon was 

actually used). (People v. Smith (1998) 62 Cal.App.4th 1233, 

1239 [reversal required where appellate court “cannot discern 

from the record which theory provided the basis for the jury’s 

determination of guilt”].) Indeed, the prosecutor in his rebuttal 

argument affirmatively urged the jury to rely on the legally 

invalid theory when he called the box cutter an “inherently 

deadly weapon.” And because the trial court used the same 

definition of “deadly weapon” for both the assault charge and the 

personal use enhancement, both suffer from the same defect, and

both must be vacated.

We recognize that the rules regarding prejudice that we 

apply in this case are arguably in tension with more recent cases, 

such as People v. Merritt (2017) 2 Cal.5th 819, providing that the 

failure to instruct on the elements of a crime does not require 

reversal if those omitted elements are “uncontested” and 

supported by “overwhelming evidence.” (Id. at p. 821-822, 830-
7

832; Neder v. United States (1999) 527 U.S. 1, 17-18.) That test 

would certainly be satisfied here, where defendant never 

disputed that the box cutter was being used as a deadly weapon 

and where the evidence of such use is overwhelming. However, 

the case law we cite in this case is directly on point and remains 

binding on us. (Auto Equity Sales, Inc. v. Superior Court (1962) 

57 Cal.2d 450, 455-456.) Any revisiting or reconsideration of this 

case law is for our Supreme Court, not us.

DISPOSITION

Defendant’s convictions for assault with a deadly weapon, 

and the one-year enhancement for personal use of a deadly 

weapon applied to the criminal threats sentence, are vacated. 

Otherwise, the criminal threats conviction and sentence are 

affirmed. We remand to the trial court for the People to 

determine whether to retry the defendant on the vacated crime 

and enhancement.

CERTIFIED FOR PUBLICATION.

______________________, J.

HOFFSTADT

We concur:

_________________________, P. J.

LUI

_________________________, J.

ASHMANN-GERST