Filed 3/22/21 P. v. Hasan CA2/4

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

JIBRAIL ABDULRAHM HASAN,

Defendant and Appellant.

 B302681

 (Los Angeles County

 Super. Ct. No. BA466399)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, David V. Herriford, Judge. Remanded in 

part and affirmed in part.

Nilou Panahpour, 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, Paul M. Roadarmel, Jr. and Michael Katz, 

Deputy Attorneys General, for Plaintiff and Respondent.
2

Defendant Jibrail Abdulrahm Hasan appeals from his 

conviction for assault with a deadly weapon and assault by force 

likely to produce great bodily injury, both stemming from an 

incident with his former girlfriend. He contends the court erred 

by failing to give requested jury instructions regarding selfdefense. He also argues that the jury was improperly instructed 

that it could find appellant guilty of using a deadly weapon under 

the theory that a knife is inherently deadly. Finally, he notes 

that the trial court failed to make an oral pronouncement of the 

sentence on count two, an error that respondent Attorney 

General concedes requires remand. We conclude that appellant 

has not established any prejudicial error with respect to the jury 

instructions. We therefore affirm the convictions and remand for 

resentencing on count two. 

PROCEDURAL HISTORY

On May 2, 2018, appellant was charged by information 

with one felony count of assault with a deadly weapon against his 

ex-girlfriend, Makaila (Pen. Code, § 245, subd. (a)(1)).1 The 

information further alleged defendant suffered two prior strike 

convictions (§§ 667, subds. (b)-(j), 1170.12, subds. (a)-(d)) and one 

prior serious felony conviction (§ 667, subd. (a)(1)). An amended 

information filed on December 20, 2018 added a second count of 

assault by means of force likely to produce great bodily injury 

(§ 245, subd. (a)(4)), based on the same incident with Makaila. 

Jury trial began on December 20, 2018. On January 14, 

2019, the jury found appellant guilty on both counts. The court 

held a bifurcated bench trial on the prior conviction allegations 

1All further statutory references are to the Penal Code 

unless otherwise indicated.
3

and found those allegations to be true. 

The court denied appellant’s motion for a new trial. The 

court granted appellant’s Romero motion in part, striking one of 

the prior strike convictions. The court sentenced defendant to a 

total of 13 years in state prison, consisting of the upper term of 

four years on count one, doubled based on the prior strike 

(§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(j)), plus five years for 

the prior felony conviction (§ 667, subd. (a)(1)). The court 

imposed and stayed the sentence on count two pursuant to 

section 654.2 Appellant timely appealed. 

FACTUAL BACKGROUND 

I. Prosecution Evidence

A. Makaila’s testimony

Makaila testified under subpoena. She dated appellant for 

about three years and gave birth to their son on March 2, 2018, 

when she was 20 years old. Makaila testified that she and 

appellant broke up shortly before their son was born. At the time 

of the incident on March 6, 2018, the baby was still in the 

neonatal intensive care unit and Makaila had been released from 

the hospital two days earlier. Makaila lived with appellant on 

and off in his residence, located in the back of his tattoo shop. 

The front of the building contained appellant’s tattoo business, 

and the space behind that held appellant’s office and a living 

area, which included a kitchen, living room, and bedrooms. 

On March 6, 2018, around 7:30 p.m., Makaila went to 

2As we detail further in Discussion Section III, the court 

did not announce a sentence for count two on the record. 

However, the minute order reflects that the court sentenced

appellant on count two, and stayed the sentence.
4

appellant’s tattoo shop to ask him for money to buy things for the 

baby. Her mother, Lisa, drove her there; they were planning to 

go to the hospital afterward to visit the baby. Makaila went into 

the business and her mother waited outside in the car. Makaila

testified that appellant’s father, sister, and some employees were 

in the tattoo shop. She found appellant toward the back of the 

residence in the living room area. When she asked him for 

money, he said he “didn’t have it anymore.” They started arguing 

and Makaila testified that she yelled at him “what happened to 

the money?” She started crying and told appellant if he was not 

going to help, then she would take the baby’s things and leave. 

According to Makaila, she then moved to the bedroom to 

pack up some items. Appellant yelled at her that she was not 

taking the baby’s things and started grabbing things out of her 

hands. He continued to grab things from her as she tried to leave 

the room. She testified that “the argument started to get more 

serious when I made a comment and said that if he kept acting 

like this then he wasn’t going to see” his son. Makaila stated 

that appellant got angrier and was “in my face yelling, like, 

telling me that I wasn’t going to take him anywhere.” 

When Makaila tried to leave, appellant pushed her and she 

pushed him back. She testified that appellant was “pushing me 

and I was socking him,” hitting him on his chest. She started to 

get scared because she could see he was getting angrier after she 

told him he could not see the baby. After she hit him twice, 

appellant pushed her backward onto the bed. He got on top of 

her on the bed with his knee on her stomach. It “hurt a lot” 

because she had just had the baby a few days before. She 

continued to hit him as he pinned her down. Finally Amber, the 

mother of another of appellant’s children, pulled appellant off 
5

Makaila and told them both to stop. Makaila got up and she and 

appellant continued to argue, with Amber between them. 

Makaila testified that after they got off the bed, appellant 

left the room and Amber told her to leave, so Makaila started to 

walk back toward the front entrance. As she was leaving, 

appellant began to follow her. She heard the door open, turned, 

and saw him coming up behind her, holding a knife. Then 

appellant pinned her against a wall with his left hand on her 

neck, squeezing and choking her. Makaila testified that 

appellant was holding a large kitchen knife in his right hand. 

She stated that appellant was holding the blade of the knife to 

her neck. She was not sure exactly how close the knife was to her 

neck, just that “he had it up to my neck” but she couldn’t feel it 

touching her. He was repeating that she was not going to “take 

his child away from him.” Appellant also said “watch what’s 

going to happen if you take the baby from me.” 

After that, Makaila saw Lisa come to the gated entrance of 

the shop. Lisa kicked the door and yelled for appellant to “get off 

of her.” Appellant looked at Lisa, immediately put the knife 

down to his side, and let Makaila go.3 Makaila then left the shop. 

Lisa asked Makaila if she was ok, then called the police. Makaila 

did not suffer any injuries, but her stomach hurt until the next 

morning. 

Officers from the Los Angeles Police Department (LAPD) 

arrived about five minutes later. Makaila testified that she 

spoke to police officers several times that night. She initially 

3The parties stipulated that Makaila stated for the first 

time at trial that when Lisa kicked the gate, appellant had a 

surprised look and lowered the knife. 
6

spoke with responding LAPD officer Julio Aguilar and his 

partner, as well as two emergency medical technicians (EMTs), 

who examined her for injuries. Makaila spoke again with the 

police officers when they escorted her into the tattoo shop to 

gather her things. After leaving the scene to visit the baby at the 

hospital, Makaila recalled speaking with someone who called her 

mother’s phone, but she was not sure to whom she spoke.

Makaila also spoke to LAPD detective Robert Smey about a 

week after the incident. She said she did not know if she should 

tell the detective what happened because she was concerned 

about getting appellant in trouble. 

Makaila testified that appellant called her to apologize the 

day after the incident. He said that he felt badly and “it wouldn’t 

happen again.” After his arrest the following week, appellant 

called her from jail up to 40 times and they also wrote letters to 

each other. The calls made by appellant from jail were recorded,

and the prosecution played clips from some of the calls for the 

jury. 4 During these calls, appellant told Makaila several times 

that the only way to beat his case was if no one showed up to 

court. He made it clear to Makaila that he did not want her to 

testify against him and suggested ways to avoid getting served 

with a subpoena. Appellant also told her that if she did testify, 

she should not say anything or should claim she did not 

remember. 

B. Lisa’s testimony

Lisa testified that she drove Makaila to appellant’s tattoo 

shop on March 6, on their way to the hospital. Lisa waited in the 

4At least some of these calls violated a protective order 

issued on March 19, 2018. 
7

car, but grew concerned after Makaila was inside the shop for 

about fifteen minutes, so she walked to the front of the shop to 

see what was going on. Lisa testified that she could not get 

inside because the gate at the front of the shop was locked. 

As she looked in the front window, Lisa saw appellant 

standing close to Makaila against a wall inside the shop. Later 

in her testimony, she stated that she first saw appellant dragging 

Makaila from the back room and “[t]hey were entwined.” She 

stated that appellant was being “very aggressive” and had his left 

hand around her neck. Makaila was “pressed against” the wall. 

When asked if she saw what appellant was doing with his right 

hand, she said “It was on her. It was – whatever – . . . [¶] It 

wasn’t in the air. It was a part of what was going on.” Lisa 

testified, consistent with her prior statements, that she did not 

see appellant holding a weapon. She said she felt that appellant 

was hurting Makaila and so she “just started yelling” and kicking

the gate. Once she did, appellant immediately turned to look at 

her and put his hands down. Makaila came out of the shop 

crying and looking upset. 

The prosecution played Lisa’s 911 call for the jury. In the 

call, Lisa told the operator that appellant “picked [Makaila] up by 

her neck” and started “choking her.” When asked if she needed a 

paramedic, Lisa said “yes” because Makaila was “hurting, she’s 

crying. He grabbed her by the neck.” Lisa reported that she did 

not see any weapons, but that appellant was “choking [Makaila] 

and hitting her.” After the operator directed Lisa to ask Makaila 

about weapons, Lisa responded that the assailant “had a knife.” 

At trial, Lisa confirmed that this was the moment she learned 

from Makaila that there was a knife involved. 
8

Lisa testified that before trial, people had been calling her 

attempting to dissuade her and Makaila from testifying against 

appellant. Appellant also called Lisa “a lot” from jail after his 

arrest. 

During cross-examination, Lisa acknowledged that she had 

testified at the preliminary hearing that appellant did not hit or 

choke Makaila and it was “a big argument.” She also testified at 

the preliminary hearing, contrary to her trial testimony, that she 

saw Makaila and appellant come out of the back room together, 

she did not see appellant come from behind or dragging Makaila, 

and that Makaila was “fighting back.” Lisa also admitted that 

she, Makaila, and appellant were together at the hospital with 

the baby the next day. 

C. Investigation

Officer Aguilar testified that he responded to the incident 

with his partner around 7:45 p.m. on March 6, 2018. When they 

arrived, he spoke to Lisa, who seemed anxious and concerned 

about Makaila. They also saw appellant standing inside the door 

of the shop. Makaila was sitting down outside, crying, and 

seemed “fragile, nervous, agitated, and scared.” 

Officer Aguilar’s interviews at the scene with Makaila and 

Lisa were captured on his body worn video camera. Both parties 

played excerpts of the video for the jury. The video showed Lisa 

telling officer Aguilar that she saw appellant hitting Makaila and 

choking her against a wall. Makaila told officer Aguilar that as 

she was leaving the shop, appellant “got a knife and he was just 

choking me against the wall.” When asked for further details, 

she said that appellant had one hand holding a kitchen knife and 

“one hand on my throat.” She said that appellant got the knife 

“while I was running out. He came and got me.” Officer Aguilar 
9

asked what appellant did with the knife while he was choking 

her and whether he put it on her neck. Makaila responded: “He 

put it against the wall by my face when he was holding me.” 

When Makaila said appellant had a knife by her face by the wall, 

she demonstrated with her right hand by her face, above her 

head. Makaila also told police that her stomach hurt from 

earlier, when appellant had his knee on her stomach and was 

holding her down on the bed. 

The video footage also showed a discussion between officer 

Aguilar and the EMT who had spoken with Makaila. The EMT 

reported that Makaila had no obvious bruising on her neck or 

bleeding and did not want to be transported to the hospital. The 

EMT also said that Makaila told him appellant punched her in 

the face, but she did not say anything about a knife. Officer 

Aguilar responded that he would speak with Makaila again. 

Officer Aguilar and the EMT then confirmed with Makaila that 

appellant choked her, and pulled out a knife, but did not stab her 

with it. At trial, Makaila testified several times that she told the 

officers that appellant “had me against the wall with the knife to 

my neck.” However, she contended that the knife was not up by 

her face and she did not recall telling the officers that. She also 

confirmed that appellant punched her in the face. 

In total, officer Aguilar testified that he spoke to Lisa and 

Makaila between three and four times at the scene, trying to 

“verify and confirm as much as I could of the events and exactly 

how they had happened.” During one of the later interviews, 

Makaila again gestured to show him how appellant had the knife. 

She showed appellant’s left hand on her throat and his right 

hand raised holding the knife. 
10

Officer Aguilar also spoke to appellant, who was standing 

inside the locked front gate of his shop. Appellant refused the 

officer’s request to unlock the door and to come outside. Appellant 

then disappeared into the back of the shop. Sometime later, the 

officers were able to get inside when someone else came out. The 

officers searched the business but did not find appellant. Officer 

Aguilar testified that he did not notice it at the time, but when he 

later reviewed his body worn camera footage, he saw a knife on 

the kitchen floor. 

Officer Aguilar testified that he called Lisa and Makaila 

twice later that night after he returned to the station, to provide 

Makaila information about an emergency protective order (which 

she declined) and a victim advocate. He also had some follow-up 

questions about the incident and was trying to clarify what 

appellant was “actually doing with the knife and if [Makaila] 

remembers it.” Officer Aguilar acknowledged that he did not 

document that he made these phone calls in his police report, but 

that his report was a summary of all of his interviews, including 

those at the scene and by phone.5 He noted that his report 

erroneously stated that Lisa saw appellant with the knife in his 

hand, but testified that the prosecutor told him she was going to 

correct the error. 

Detective Smey, the lead investigating officer on the case, 

also interviewed Lisa and Makaila. When he spoke with Lisa 

over the phone the day after the incident, she told him she saw 

appellant dragging Makaila forward toward the front of the store. 

5The parties stipulated that Officer Aguilar told the 

prosecutor about the phone calls to Makaila and Lisa for the first 

time on January 3, 2019. 
11

Appellant then pushed Makaila against the wall, and with one 

hand grabbed her by the neck and pinned her against the wall.

She saw one of appellant’s hands on Makaila’s neck and the other 

hand was up by her face, but did not see a knife. Detective Smey 

spoke with Makaila in person on March 15, 2018. He testified 

that she seemed reluctant to speak to him. According to detective 

Smey, Makaila confirmed that appellant had pushed her, choked 

her, and held a knife to her face. She said appellant came up 

behind her as she was walking to the front, dragged her to the 

front room and then pushed her up against the wall. Detective 

Smey recounted that Makaila also said that appellant put a knee 

up against her stomach and grabbed her neck with one hand. 

Then she said that appellant pulled out a knife, brought the knife 

“up towards her over her head with the knife pointed down, and 

that he pulled it up and lowered it and held it in front of her 

face.” 

Makaila testified that she told the truth when she reported 

to detective Smey that appellant squeezed her throat until she 

felt pain and had difficulty breathing, although she had denied 

throat pain or difficulty breathing in her original statements at 

the scene. She also confirmed that she told detective Smey that 

appellant had the knife raised over her head with the blade 

pointing down at her. She claimed she did not remember if that 

statement was the truth, but that she “wouldn’t make anything 

up.” Similarly, she confirmed telling detective Smey that 

appellant suddenly brought the knife downward toward her face, 

and she did not remember if that was the truth, but “wouldn’t 

lie.” She also told detective Smey that appellant suspended the 

knife above her face in a threatening way. However, Makaila 

denied saying that appellant brought the knife up and down in a 
12

slashing motion. She estimated that the knife was 11 inches 

long. 

Appellant was arrested at his tattoo shop on March 15, 

2018. When LAPD officers arrived, appellant was standing 

outside, but he ran inside and locked the door. When the officers 

entered pursuant to search and arrest warrants, they found 

appellant hiding in a bedroom covered with clothes and blankets. 

II. Defense Evidence

Appellant called two of his sisters as witnesses, both of 

whom were in the tattoo shop at the time of the incident. 

Maryam testified that she was watching TV in the front of the 

shop that evening when she heard Makaila yelling from one of 

the back rooms. The shop was open for business at the time and 

there were several other people in the shop. Maryam walked 

back and saw Makaila in a bedroom, yelling at appellant, who 

was in his office. Appellant asked Makaila to leave. Then, 

appellant walked away and Makaila followed him to the front of 

the building, still yelling and “cussing at him.” After that, there 

“continued to be a lot of yelling,” and employees and other people 

in the shop began asking Makaila to leave. Maryam testified 

that Makaila attempted to punch appellant, but he avoided it.

She did not see Makaila make any physical contact with 

appellant. Makaila was “yelling about some clothes and saying 

some very negative things” to appellant, including, “I’m going to 

get somebody to F you up.” Maryam stated that Makaila 

continued yelling for about five minutes, and then Makaila left 

the shop. According to Maryam, appellant never grabbed 

Makaila by the neck, was not holding a knife, and did not harm 

Makaila during the incident. 
13

Jalilla, another of appellant’s sisters, testified that she was 

in the shop at the time and noticed Makaila when Makaila

started yelling about the baby’s clothing. Jalilla stated that she 

saw Makaila and appellant in the doorway near the office. When 

Makaila started hitting appellant, he put his arms up defensively 

to block the blows. Appellant yelled at Makaila to stop and to 

leave. Finally, Jalilla testified that someone else walked up and 

told Makaila: “‘You need to just leave. You guys are doing too 

much right now, there’s customers in the shop.’” Then the other 

person “kind of like wrapped her arm around [Makaila] and 

walked her out the door.” Jalilla did not see appellant put his 

hands on Makaila’s neck and did not see him holding a knife. 

Some of Jalilla’s testimony at trial was impeached by the 

defense investigator, called by the prosecution in rebuttal. The 

investigator testified that he spoke with Jalilla a few months 

after the incident, and she told him that appellant guided 

Makaila out by “walking very close to her and directing her 

towards the door.” 

DISCUSSION

I. Self-Defense Instructions

Appellant contends the trial court erred in omitting the 

element regarding self-defense in the simple assault instruction 

(CALCRIM No. 915). He also argues that substantial evidence of 

self-defense required the court to give the general self-defense 

instruction, CALCRIM No. 3470, and the instruction regarding 

mutual combat, CALCRIM No. 3471.6 We conclude that there 

6CALCRIM No. 3470 provides, in pertinent part, “The 

defendant is not guilty of [the charged crimes] if [he] used force 

against the other person in lawful [self-defense]. The defendant 
14

was insufficient evidence to support a self-defense instruction

and thus there was no error.

A. Background

The trial court instructed the jury with CALCRIM No. 875 

on the elements of assault with a deadly weapon (for count one)

or by means of force likely to produce great bodily injury (for 

count two).7 The court also instructed on the lesser included 

offense of simple assault (CALCRIM No. 915), but omitted the 

element to be given when instructing on self-defense, which 

required the prosecutor to prove that “[t]he defendant did not act 

(in self-defense).” 

Defense counsel requested that the court include the selfacted in lawful [self-defense] if: [¶] 1. The defendant reasonably 

believed that [he] was in imminent danger of suffering bodily 

injury (or was in imminent danger of being touched unlawfully); 

[¶] 2. The defendant reasonably believed that the immediate use 

of force was necessary to defend against that danger; [¶] AND [¶] 

3. The defendant used no more force than was reasonably 

necessary to defend against that danger.” CALCRIM No. 3471 

states: “A person who (engages in mutual combat/ [or who] starts 

a fight) has a right to self-defense only if: [¶] 1. [He] actually and 

in good faith tried to stop fighting; [¶] [AND] [¶] 2. [He] indicated, 

by word or by conduct, to [his] opponent, in a way that a 

reasonable person would understand, that [he] wanted to stop 

fighting and that [he] had stopped fighting(;/.) [¶] [AND] [in cases 

of mutual combat] [¶] 3. [He] gave [his] opponent a chance to stop 

fighting.] [¶] If the defendant meets these requirements, [he] 

then had a right to self-defense if the opponent continued to 

fight.”

7As the prosecutor explained during her closing argument, 

both counts were based on appellant’s conduct when he grabbed 

her neck, pinned her to the wall, and held up the knife.
15

defense element of CALCRIM No. 915, arguing that a selfdefense instruction was warranted given the testimony of the 

defense witnesses “regarding Makaila assaulting and/or 

attempting to assault Mr. Hasan at various times during the 

incident.” The court denied the request, stating: “Basically both 

[defense] witnesses testified that your client didn’t do anything. 

So if it’s not a self-defense situation, it either happened or it 

didn’t happen.” Defense counsel renewed his request after the 

close of evidence, arguing that “Jalilla’s testimony . . . included 

mention of the defendant defending himself.” The court again 

denied the request. 

B. Legal framework

“It is well settled that a defendant has a right to have the 

trial court, on its own initiative, give a jury instruction on any 

affirmative defense for which the record contains substantial 

evidence [citation]—evidence sufficient for a reasonable jury to 

find in favor of the defendant [citation]—unless the defense is 

inconsistent with the defendant’s theory of the case.” (People v. 

Salas (2006) 37 Cal.4th 967, 982.) “‘[A] trial judge must only give 

those instructions which are supported by substantial evidence,’ 

and ‘has the authority to refuse requested instructions on a 

defense theory for which there is no supporting evidence.’” 

(People v. Larsen (2012) 205 Cal.App.4th 810, 823; see also People 

v. Nguyen (2015) 61 Cal.4th 1015, 1048–1049 [“‘[J]ust as with 

perfect self-defense or any defense, “[a] trial court need give a 

requested instruction concerning a defense only if there is 

substantial evidence to support the defense.”’”].) 

In this context, substantial evidence to support a defense 

instruction is “evidence sufficient to ‘deserve consideration by the 

jury,’ not ‘whenever any evidence is presented, no matter how 
16

weak.’” (People v. Williams (1992) 4 Cal.4th 354, 361, italics 

omitted; People v. Lewis (2001) 26 Cal.4th 334, 369.) “In 

determining whether the evidence is sufficient to warrant a jury 

instruction, the trial court does not determine the credibility of 

the defense evidence, but only whether ‘there was evidence 

which, if believed by the jury, was sufficient to raise a reasonable 

doubt.’” (People v. Salas, supra, 37 Cal.4th at pp. 982-983.)

“‘“‘“The fact that the evidence may not be of a character to inspire 

belief does not authorize the refusal of an instruction based 

thereon.”’” [Citation.] As an obvious corollary, if the evidence is 

minimal and insubstantial the court need not instruct on its 

effects.’” (People v. Larsen, supra, 205 Cal.App.4th at pp. 823–

824.) The court is not obliged to instruct on theories that have no 

evidentiary support. (Id. at p. 824.)

On appeal, we review de novo whether the trial court had 

an obligation to give the requested instructions. (See People v. 

Guiuan (1998) 18 Cal.4th 558, 569; People v. Sinclair (1998) 64 

Cal.App.4th 1012, 1017.)

C. Analysis

“‘To justify an act of self-defense . . ., the defendant must 

have an honest and reasonable belief that bodily injury is about 

to be inflicted on him.’ The threat of bodily injury must be 

imminent, and ‘... any right of self-defense is limited to the use of 

such force as is reasonable under the circumstances.’” (People v. 

Minifie (1996) 13 Cal.4th 1055, 1064–1065.) Appellant contends 

there was substantial evidence supporting the conclusion that he 

engaged in self-defense, citing evidence “from at least four 

witnesses to the incident,” Makaila, Lisa, Maryam, and Jalilla, 

that Makaila and appellant “were engaged in a physical fight and 

that she ‘socked’” appellant. We disagree. Appellant 
17

inaccurately summarizes the evidence at trial and focuses largely 

on evidence of the first incident between the parties in the 

bedroom, which was not the basis of the charged offenses. 

Rather, both charges were based on the second incident in 

the tattoo shop in which appellant pinned Makaila to the wall by 

her throat. We do not find substantial evidence that at the time 

of that incident, appellant reasonably believed he faced imminent 

bodily injury. Notably, both defense witnesses, Maryam and 

Jalilla, testified that appellant did not touch Makaila at all and 

never held her against the wall. Maryam stated that Makaila 

attempted to hit appellant, but he avoided her. Jalilla testified 

that Makaila managed to strike appellant, but that appellant 

responded only by holding up his arms in a defensive posture. If 

the jury believed this evidence, there would be no basis for a 

conviction regardless of a self-defense instruction. 

On the other hand, while Makaila admitted getting into a 

physical altercation with appellant in the bedroom, once they 

were separated, she testified that she walked toward the front of 

the shop to leave. At that point, she stated that appellant came 

up behind her, grabbed her, and pinned her to the wall. She did 

not state that she hit or otherwise confronted appellant leading 

up to that conduct. Similarly, Lisa, the fourth witness to the 

incident whose testimony appellant largely ignores, did not 

provide evidence that Makaila hit appellant before he grabbed 

her. She testified that she saw appellant dragging Makaila into 

the front room and then pinning Makaila to the wall with his 

hand around her neck. As such, none of the evidence presented 

supported an instruction on self-defense related to the charged 

conduct.
18

Appellant’s citation to People v. Villanueva (2008) 169 

Cal.App.4th 41 (Villanueva) is unavailing. In Villanueva, the 

defendant and the victim got into a physical altercation in a 

parking lot. (Id. at p. 45.) Later that night, they encountered 

each other again in the same lot and the defendant told the 

victim to leave. (Id. at pp. 46-47.) The victim drove his car in 

reverse toward the defendant, then attempted to shift into gear to 

drive forward and leave, at which point the defendant shot him.

(Ibid.) The defendant testified that he thought the victim was 

trying to hit him, but did not assert that he fired in self-defense.

Instead, he claimed that he stepped back quickly and the gun 

accidentally discharged. (Id. at p. 47.) The trial court refused to 

give an instruction on self-defense, noting the absence of evidence 

that the defendant intentionally fired in self-defense. (Id. at p. 

48.) The court of appeal reversed, citing evidence that the victim 

had threatened to kill the defendant and defendant thought the 

victim had armed himself upon returning to the parking lot. 

Thus, despite the defendant’s assertion that the shooting was 

accidental, “[t]he jury could have concluded that defendant, 

fearing that he would be hit by [the victim’s] van, intentionally 

shot [the victim] in self-defense. As there was sufficient evidence 

of self-defense, and defendant requested the instruction, the trial 

court was required to give the instruction.” (Id. at p. 52.)

Appellant also cites similar cases in which the defendant’s 

theory of accidental shooting was inconsistent with self-defense, 

but there was other substantial evidence from which the jury 

could have found the defendant acted intentionally and in selfdefense. (See People v. Barton (1995) 12 Cal.4th 186, 202–203 

[finding sufficient evidence of intentional shooting in imperfect 

self-defense despite the defendant's assertion that the shooting 
19

was accidental]; People v. Elize (1999) 71 Cal.App.4th 605, 610 

[“A jury ... could disbelieve defendant’s testimony that the firing 

was accidental, and decide instead that he had fired 

intentionally.”]; People v. Mayweather (1968) 259 Cal.App.2d 752, 

756 [jury could have found shooting in self-defense despite 

defendant’s assertion of accident].)

These cases are distinguishable. Each one involves 

circumstances in which there was substantial evidence from 

which the jury could find that the defendant acted in self-defense, 

despite his or her own testimony to the contrary. Here, as we 

have discussed, there was no such evidence.

8 Thus, the court did 

not err in refusing to instruct the jury on self-defense.

II. Deadly Weapon

The jury found appellant guilty in count one of assault with 

a deadly weapon under section 245, subdivision (a)(1). The court 

instructed the jury that the weapon—the kitchen knife—could be 

either inherently deadly or deadly in the way appellant used it. 

Appellant contends this was error, as a knife is not inherently 

deadly. Respondent concedes the error, but argues that it was not 

prejudicial. We agree with respondent that under the 

circumstances, the error was harmless beyond a reasonable 

doubt.

A. Erroneous instruction

The jury was instructed using CALCRIM No. 875 for count 

8Appellant’s suggestion that the jury was left with an “all 

or nothing choice” between convicting him of the charged offenses 

or acquitting him of all charges lacks merit. The court instructed 

the jury on the lesser included offense of simple assault. 

Appellant’s references to the requirements for instruction on 

lesser included offenses are therefore inapplicable.
20

one, assault with a deadly weapon as follows: “To prove that the 

defendant is guilty of this crime, 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 someone; [¶] AND [¶] 4. When the 

defendant acted, he had the present ability to apply force with a 

deadly weapon other than a firearm to a person.” The instruction 

further stated that “[t]he People are not required to prove that 

the defendant actually touched someone,” or that “the defendant 

actually intended to use force against someone when he acted.” 

The instruction defined “great bodily injury” as “significant 

or substantial physical injury. . . . It is an injury that is greater 

than minor or moderate harm.” In the provision at issue here, 

the instruction defined “deadly weapon other than a firearm” 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 and 

likely to cause death or great bodily injury.” 

In her closing argument, the prosecutor addressed this 

element as follows: “You have a weapon. There’s no dispute. A 

knife. Of course it can be a deadly weapon. Something as sharp 

as this doesn’t do well with skin. You can cut someone. You can 

injure them. You can maim them. You can kill them with one 

artery. So this of course is a deadly weapon. [¶] But, look, just 

having a knife is not a weapon, right - - it’s not a crime, right? 

People have kitchen knives all the time. Nothing wrong with 

that, it’s what you do with the kitchen knife. [¶] When you take a 
21

knife and when you’re holding somebody by the neck pinning 

them on a wall and if you hold the knife up to their head or their 

face or their neck and you’re pushing against them and you’re 

threatening them, in that moment, that can constitute an assault 

with a deadly weapon. . . . [¶] Why? Because you are seconds 

away from stabbing them in the face.” The prosecutor also 

argued that the first element of assault meant: “[D]id the 

defendant do an act with the knife that would result in some type 

of a harmful or offensive touching? . . . When you hold a knife 

above someone, even if you just hold it inches within their face, 

right, of course that can result in harmful touching.” 

B. Legal standards

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

(Aledamat).) “Because a knife can be, and usually is, used for 

innocent purposes, it is not among the few objects that are 

inherently deadly weapons. ‘While a knife is not an inherently 

dangerous or deadly instrument as a matter of law, it may 

assume such characteristics, depending upon the manner in 

which it was used.’” (Ibid., quoting People v. McCoy (1944) 25 

Cal.2d 177, 188, [153 P.2d 315].) Thus, in Aledamat, our 

Supreme Court found that “the trial court erred in presenting the 
22

jury with two theories by which it could find the box cutter [a 

kind of knife] a deadly weapon: (1) inherently or (2) as used. The 

first theory (inherently) is incorrect, but the second theory (as 

used) is correct.” (Aledamat, supra, 8 Cal.5th at p. 7.) 

The Aledamat court then examined the standard for 

determining prejudice where the trial court instructs on a legally 

inadequate theory. It explained that when the “theory is legally 

erroneous—i.e., of a kind the jury is not equipped to detect—a 

higher standard must be met for the error to be found harmless.” 

(Aledamat, supra, 8 Cal.5th at p. 7.) This test “reflect[s] the view 

that jurors are ‘well equipped’ to sort factually valid from invalid 

theories, but ill equipped to sort legally valid from invalid 

theories.” (Ibid., quoting People v. Guiton (1993) 4 Cal.4th 1116, 

1126.) The court concluded that, when a legally incorrect jury 

instruction on an alternative theory of guilt is at issue, “[t]he 

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, supra, 8 

Cal.5th at p. 13, applying Chapman v. California (1967) 386 U.S. 

18, 24.)

C. Analysis

The parties agree that under Aledamat, CALCRIM No. 875 

was erroneous to the extent it defined a deadly weapon, here the 

knife, as any object, instrument, or weapon that is inherently 

deadly. Appellant contends the error was prejudicial. We 

disagree.

Appellant argues that “the evidence about Mr. Hasan’s use 

of a knife was anything [but] clear,” citing the different testimony 

from Makaila, officer Aguilar, and detective Smey regarding what 
23

exactly appellant did with the knife. All of this evidence 

stemmed from statements made, through testimony or prior 

statements, by Makaila. But under any version of the testimony, 

it is clear the error was harmless. Makaila testified at trial that 

appellant held the blade of the knife within inches of her neck as 

he threatened, “watch what’s going to happen if you take the 

baby from me.” She also stated that she told police officers the 

same thing. As reflected on the body worn camera footage, she 

told officer Aguilar at the scene that appellant had the knife by 

her face by the wall. In addition, she demonstrated what 

appellant did in the video by bringing her right hand by her face, 

above her head. Lisa also stated that she saw appellant’s hand 

by Makaila’s face, although she did not see a knife. Both officer 

Aguilar and detective Smey testified that Makaila told them 

appellant raised the knife over her head with the blade pointing 

toward her. Even assuming the jury discounted the statements 

by officer Aguilar and detective Smey, as appellant argued they 

were exaggerated and falsified, Makaila’s testimony that 

appellant held an 11-inch knife next to her neck or her face 

established defendant’s use of the weapon in a manner likely to 

cause great bodily injury. The jury necessarily rejected 

appellant’s argument that he did not use the knife in a way that 

would probably result in the application of force when it found 

him guilty of assault. (See Aledamat, supra, 8 Cal.5th at p. 14.) 

Under those circumstances, we conclude the jury necessarily 

found that appellant used the knife in a deadly manner.

The closing arguments by the prosecutor do not compel a 

different result. Although she stated that a knife “of course is a 

deadly weapon,” she then immediately explained that “just 

having a knife is not a weapon, right - - it’s not a crime, right? 
24

People have kitchen knives all the time. Nothing wrong with 

that, it’s what you do with the kitchen knife.” She also 

repeatedly argued that it was appellant’s conduct with the 

knife—holding it above Makaila’s head and next to her face and 

neck—that met the elements of the assault charge. As such, 

appellant’s contention that the prosecutor argued “that just 

holding a knife was enough to convict” is not supported by the 

record. 

We also reject appellant’s reliance on People v. Stutelberg

(2018) 29 Cal.App.5th 314, in which the court found prejudicial 

error on one of the assault charges. There, the victim was 

unharmed after the defendant “swung” at him but missed. (Id. at 

p. 322.) The court noted it was unclear whether the defendant 

was holding a box cutter in the same hand. (Ibid.) Further, 

although a witness testified that the defendant “jabbed a box 

cutter at both [the victim] and him in a manner likely to cause 

great bodily injury, the jury apparently disbelieved his testimony, 

acquitting [the defendant] of assault with a deadly weapon 

against [that witness].” (Ibid.) As such, the court found that 

“[t]he exact manner in which [the defendant] used the box cutter 

against [the victim] 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 injury. 

Under these circumstances, we cannot say that the court’s error 

in instructing the jury regarding an inherently dangerous 

weapon was harmless beyond a reasonable doubt.” (Ibid.) 

Here, on the other hand, Makaila testified that appellant 

held the knife close to her neck and/or her face. There was no 

evidence from which the jury could have found that appellant 

assaulted Makaila with the knife without also concluding that he 
25

used the knife in a deadly manner. As such, the inclusion of the 

erroneous instruction was harmless beyond a reasonable doubt.

III. Sentencing

Appellant contends the matter must be remanded for 

sentencing because the court failed to make an oral 

pronouncement of the sentence on count two on the record. 

Respondent agrees.

The minute order from the sentencing hearing states that 

the court imposed a four year term on count two, doubled for the 

prior strike conviction, stayed pursuant to section 654. However, 

the transcript of the hearing does not reflect that the court orally 

pronounced a sentence on count two. “The record of the oral 

pronouncement of the court controls over the clerk’s minute 

order.” (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2; see also 

People v. Zackery (2007) 147 Cal.App.4th 380, 387–388 [“The 

clerk cannot supplement the judgment the court actually 

pronounced by adding a provision to the minute order and the 

abstract of judgment.”].)

“The failure to pronounce sentence on a count is an 

unauthorized sentence and subject to correction on remand.” 

(People v. Price (1986) 184 Cal.App.3d 1405, 1411, fn. 6.) We 

therefore remand the matter for resentencing on count two.
26

DISPOSITION

The matter is remanded for resentencing on count two. 

The judgment of the trial court is affirmed in all other respects.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

MANELLA, P. J.

CURREY, J.