Filed 7/16/15 P. v. Ramirez CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

RIGOBERTO GUTIERREZ RAMIREZ,

Defendant and Appellant.

 D065135

 (Super. Ct. No. JCF31279)

APPEAL from a judgment of the Superior Court of Imperial County, Poli Flores, 

Jr., Judge. Affirmed.

Helen S. Irza, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, and Lynne G. 

McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
2

A jury convicted Rigoberto Gutierrez Ramirez of second degree robbery 

(Pen. Code, § 211)1 and assault with a deadly weapon (§ 245, subd. (a)(1)). Following 

his conviction, the court found that Ramirez had suffered a prior serious felony 

conviction. (§ 667, subd. (d).) The court sentenced Ramirez to three years in prison for 

his robbery conviction, which it doubled under section 667, subdivision (e)(1), for a total 

of six years. The court also sentenced Ramirez to three years in prison on his assault 

conviction, which it doubled (§ 667, subd. (e)(1)) and stayed (§ 654).

Ramirez appeals. He contends: (1) the evidence was insufficient to support his 

assault conviction; (2) the court erred by instructing the jury with the undefined phrase

"inherently deadly weapon" in CALCRIM No. 875; (3) the evidence was insufficient to 

support his robbery conviction; (4) the court erred by not instructing the jury sua sponte 

with a unanimity instruction regarding the robbery charge; and (5) the court erred by not 

instructing the jury sua sponte on the defense of necessity. We conclude the evidence 

was sufficient to support Ramirez's assault conviction, the court did not err by using the 

phrase "inherently deadly weapon" in its jury instructions, the evidence was sufficient to 

support Ramirez's robbery conviction, any error in omitting a unanimity instruction was 

harmless, and the court was not required to instruct the jury on the defense of necessity. 

We therefore affirm.

 

1 All further statutory references are to the Penal Code unless otherwise indicated.
3

FACTS

In July 2013, Juan German prepared to go to sleep on a park bench in Calexico, 

California. German, a homeless farmworker, carried his belongings in a backpack. 

Another man, later identified as Ramirez, approached German. Ramirez repeatedly said, 

"Where's my stuff? Where's my f-ing pipe?" Ramirez spoke quickly and belligerently,

and German had difficulty understanding him. Ramirez then grabbed German's backpack 

and proceeded to walk away. German said, "Hey, that's mine," and followed Ramirez. 

German grabbed at Ramirez's right arm, which was holding the backpack, and Ramirez 

threw back his elbow at German. 

A lettuce knife, which German used in his farm work, fell out of the backpack.2 

Both men attempted to grab the knife, but Ramirez reached it first. Ramirez held the 

blade towards German in a threatening manner. German, who had grabbed the backpack,

left it and ran away, screaming for help. Still holding the knife, Ramirez picked up the 

backpack and gave chase. Ramirez kept asking, "Where is it? Where is it?" As Ramirez 

got closer, German screamed even louder. German eventually reached a police station. 

Ramirez then dropped the backpack, telling German, "Here's your backpack." Ramirez 

left with the knife. 

 

2 At trial, German explained that a lettuce knife is a type of knife used to harvest 

lettuce and other vegetables. It consists of a curved blade, approximately six or seven 

inches in length, and a four-inch handle. 
4

Gerardo Cordova, who lived in a nearby apartment building, heard German's 

screams. His wife called police. Although Cordova saw German in the park, he did not 

see Ramirez.

Police interviewed German, who reported what had happened. The police found 

Ramirez walking along a nearby road. When police approached, Ramirez told them, "I 

did not commit a 211," referencing the Penal Code section on robbery. The police had 

not mentioned a robbery or that section to Ramirez. The police detained Ramirez and 

brought German to his location to identify him. German identified Ramirez as his 

assailant. The police placed Ramirez under arrest and drove him to a police station. 

In a recorded interrogation, Ramirez told police that he had been forced to move 

from another park earlier in the day. During the move, Ramirez said, his backpack had 

been stolen. (The police confirmed that officers on the previous shift had told a group of 

homeless people to move from the park that day; they did not receive a report of a 

missing backpack.) Ramirez said that German's backpack looked similar to his 

backpack. Ramirez said he asked German whose backpack it was and whether he could 

look inside. German refused. Ramirez claimed German's knife then fell out of the 

backpack. Ramirez admitted picking up the knife but denied chasing German. Ramirez 

also admitted that German was scared and ran away screaming, though Ramirez claimed 

not to know why. Ramirez speculated that German was a gang member. Ramirez denied 

robbing German or hurting anyone. 

Later, police transported Ramirez to jail. On the way, Ramirez talked constantly 

about the incident, and the police officer transporting Ramirez had to tell him to "shut 
5

up." Among other things, Ramirez said "I can't believe he ratted on me, but he will 

probably get subpoenaed and won't show up and the case will be dropped" and "Who said 

that they saw me? Was it that lady at the park? She's drunk and . . . she is not credible." 

The police officer did not believe German or Ramirez was intoxicated or under the 

influence of drugs at the time of the incident. When Ramirez was detained, he no longer 

had the knife. The knife was never located. 

At trial, German, Cordova, and a police officer testified for the prosecution. An 

audiotape of Ramirez's interrogation was played for the jury. Ramirez's counsel 

presented a claim of right defense to the robbery charge, arguing that Ramirez had a good 

faith belief the backpack was his. Ramirez's counsel also argued, among other things,

that Ramirez's actions did not constitute robbery or assault.

DISCUSSION

I

Ramirez first challenges the sufficiency of the evidence supporting his conviction 

for assault with a deadly weapon. "An assault is an unlawful attempt, coupled with a 

present ability, to commit a violent injury on the person of another." (§ 240.) "Any 

person who commits an assault upon the person of another with a deadly weapon or 

instrument other than a firearm shall be punished . . . ." (§ 245, subd. (a)(1).) 

"To assess the evidence's sufficiency, we review the whole record to determine 

whether any rational trier of fact could have found the essential elements of the crime or 

special circumstances beyond a reasonable doubt. [Citation.] The record must disclose 

substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and 
6

of solid value—such that a reasonable trier of fact could find the defendant guilty beyond 

a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light 

most favorable to the prosecution and presume in support of the judgment the existence 

of every fact the jury could reasonably have deduced from the evidence. [Citation.] 

'Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the 

reversal of a judgment, for it is the exclusive province of the trial judge or jury to 

determine the credibility of a witness and the truth or falsity of the facts upon which a 

determination depends. [Citation.] We resolve neither credibility issues nor evidentiary 

conflicts; we look for substantial evidence. [Citation.]' [Citation.] A reversal for 

insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever 

is there sufficient substantial evidence to support" ' the jury's verdict." (People v. 

Zamudio (2008) 43 Cal.4th 327, 357 (Zamudio); see People v. Brown (2012) 

210 Cal.App.4th 1, 7, fn. 2.)

Ramirez contends the lettuce knife did not constitute a deadly weapon under the 

statute. "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, which 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 
7

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).)

"In assault with a deadly weapon, the character of the particular agency employed 

is the substance of the offense. 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, and there arises a mixed question of law and fact which the 

jury must determine under proper instructions from the trial court." (People v. McCoy

(1944) 25 Cal.2d 177, 188 (McCoy).) " 'When it appears . . . that (such) an 

instrumentality . . . is capable of being used in a "dangerous or deadly" manner, and it 

may be fairly inferred from the evidence that its possessor intended on a particular 

occasion to use it as a weapon should the circumstances require, we believe that its 

character as a "dangerous or deadly weapon" may be thus established, at least for the 

purposes of that occasion.' " (Id. at pp. 188-189; see People v. Page (2004) 

123 Cal.App.4th 1466, 1471 (Page).)

Here, the nature of the lettuce knife, the manner in which Ramirez used it, and the 

surrounding circumstances show that the knife was a deadly weapon within the meaning 

of section 245. The knife, with a blade six or seven inches in length, was plainly capable 

of inflicting death or great bodily injury. Ramirez held the lettuce knife by its handle in a 

threatening manner with its blade pointed toward German. When German ran away, 

Ramirez pursued him with knife in hand. Ramirez's actions occurred at night, when the 

men were alone, following belligerent words and a scuffle over German's backpack. 

Under these circumstances, the jury could reasonably conclude Ramirez intended to use 
8

the knife as a deadly weapon, rather than some other purpose. (See Page, supra, 

123 Cal.App.4th at p. 1473.)

Ramirez points out that Ramirez did not make any stabbing or slashing motions 

with the knife. Such actions, however, were not necessary to establish that the knife was 

a deadly weapon. "To warrant conviction of such offense it was not necessary that the 

prosecution introduce evidence to show that appellant actually made an attempt to strike 

or use the knife upon the person of the [victim]." (McCoy, supra, 25 Cal.2d at p. 189; 

see People v. Vorbach (1984) 151 Cal.App.3d 425, 429.) "[A]n instrument can be a 

deadly weapon even if it is not actually used with deadly force." (Page, supra, 

123 Cal.App.4th at p. 1472.) The details of the chase also would not prevent a reasonable 

jury from finding that the knife was a deadly weapon, contrary to Ramirez's assertion. 

Unlike People v. Beasley (2003) 105 Cal.App.4th 1078, 1087-1088, on which Ramirez 

relies, the evidence showed that the weapon here—a knife with a blade six or seven 

inches in length—could have inflicted death or serious injury on German.

Moreover, to the extent Ramirez contends the evidence was insufficient to prove 

his actions constituted an assault (see Page, supra, 123 Cal.App.4th at p. 1472), his 

contention is unpersuasive. "Although temporal and spatial considerations are relevant to 

a defendant's 'present ability' under section 240, it is the ability to inflict injury on the 

present occasion that is determinative, not whether injury will necessarily be the 

instantaneous result of the defendant's conduct." (People v. Chance (2008) 44 Cal.4th 

1164, 1171 (Chance).) "One may commit an assault without making actual physical 

contact with the person of the victim; because the statute focuses on use of a deadly 
9

weapon or instrument . . . , whether the victim in fact suffers any harm is immaterial." 

(Aguilar, supra, 16 Cal.4th at p. 1028.) "In [one early case], the defendant approached 

within seven or eight feet of the victim with a raised hatchet, but the victim escaped 

injury by running to the next room and locking the door. [The defendant] committed 

assault, even though he never closed the distance between himself and the victim, or 

swung the hatchet." (Chance, supra, 44 Cal.4th at p. 1174, citing People v. Yslas (1865) 

27 Cal. 630, 631, 633-634.) The evidence here shows that Ramirez grabbed the lettuce 

knife, held it towards German in a threatening manner, and chased German across the 

park while German screamed in terror. This evidence is sufficient to support Ramirez's 

conviction for assault with a deadly weapon. 

II

Ramirez next contends the court erred by instructing the jury with the phrase 

"inherently deadly" as used in CALCRIM No. 875. The instruction used by the court 

reads, in relevant part, as follows: "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."

"In considering a claim of instructional error we must first ascertain what the 

relevant law provides, and then determine what meaning the instruction given conveys. 

The test is whether there is a reasonable likelihood that the jury understood the 

instructions in a manner that violated the defendant's rights. [Citation.] We determine 

the correctness of the jury instruction[s] from the entire charge of the court, not from 
10

considering only parts of an instruction or one particular instruction." (People v. Smith

(2008) 168 Cal.App.4th 7, 13.)

Ramirez claims this phrase does not adequately inform the jury of the distinction 

between weapons that are deadly per se, i.e., those that are designed to be deadly, and 

weapons that are deadly only under the circumstances of a given case. (See, e.g., 

Aguilar, supra, 16 Cal.4th at pp. 1028-1029.) 

We conclude the instruction adequately informs the jury of the two categories of 

deadly weapons and there is no reasonable likelihood the jury interpreted the instruction 

in a manner that misdescribed the elements of the offense. The phrase "inherently 

deadly" is juxtaposed against the requirement that noninherently deadly weapons be 

"used in such a way that is capable of causing and likely to cause death or great bodily 

injury." This juxtaposition shows that "inherently deadly" weapons are those that are 

deadly regardless of the manner of their use, i.e., those whose "ordinary use for which 

they are designed establishes their character as such." (Aguilar, supra, 16 Cal.4th at 

p. 1029.) We therefore disagree with Ramirez's speculation that the court's jury 

instruction would confuse a jury into believing that an axe or rusty nail is "inherently 

deadly" because they have essential characteristics that are capable of producing death 

(e.g., a sharp edge). Objects that are only capable of producing death fall into the second 

category, and are not "inherently deadly," as the court's jury instruction explains.

III

Ramirez argues the evidence was insufficient to convict him of robbery under 

section 211. Our standard of review for sufficiency of the evidence remains the same. 
11

(See part I, ante; People v. Zamudio, supra, 43 Cal.4th at p. 357.) " 'Robbery is the 

taking of "personal property in the possession of another against the will and from the 

person or immediate presence of that person accomplished by means of force or fear and 

with the specific intent permanently to deprive such person of such property." [Citation.]' 

[Citations.] 'If the other elements are satisfied, the crime of robbery is complete without 

regard to the value of the property taken.' " (People v. Clark (2011) 52 Cal.4th 856, 943.) 

The evidence here was sufficient to support Ramirez's robbery conviction. 

Ramirez took German's backpack from German's immediate possession, walked away 

with the backpack, swung his elbow back at German when German attempted to retrieve 

it, and wielded German's knife against him when German confronted Ramirez. These 

facts show that Ramirez took German's backpack from him, against his will, by means of 

force or fear. Ramirez's intent to permanently deprive German of his backpack can 

reasonably be inferred by Ramirez's attempt to walk away with the backpack after he 

initially took it. The fact that Ramirez subsequently dropped the backpack does not 

negate this reasonable inference. (See People v. Hill (1998) 17 Cal.4th 800, 852 ["[O]nce 

there has been a taking, 'it is no defense that the property taken was restored, even though 

this occurs almost immediately.' "].) Similarly, although Ramirez presented a claim of 

right defense based on Ramirez's alleged belief the backpack was his (see People v. 

Tufunga (1999) 21 Cal.4th 935, 950), the jury's verdict shows it disbelieved Ramirez. 

We may not reweigh this credibility determination on appeal. (See Zamudio, supra, 

43 Cal.4th at p. 357; People v. Snow (2003) 30 Cal.4th 43, 66.)
12

The evidence was also sufficient to support Ramirez's robbery conviction based on 

the knife alone. In addition to taking German's knife while it was in the backpack, 

Ramirez picked up the knife after it fell from German's backpack. Ramirez held the knife 

towards German in a threatening manner and, unlike the backpack, did not return it. 

Ramirez's failure to return the knife, as well as his earlier action walking away with 

German's backpack, shows that Ramirez intended to permanently deprive German of the

knife throughout the incident. We therefore disagree with Ramirez's claim that his intent 

to deprive could only have arisen after he grabbed the knife. (See People v. Bradford

(1997) 14 Cal.4th 1005, 1055-1056.) 

IV

Given the evidence, as we have just discussed, that Ramirez's robbery conviction 

could rest on the taking of either German's backpack or his knife, Ramirez argues that the 

court erred by not providing a unanimity instruction sua sponte. "When an accusatory 

pleading charges the defendant with a single criminal act, and the evidence presented at 

trial tends to show more than one such unlawful act, either the prosecution must elect the 

specific act relied upon to prove the charge to the jury, or the court must instruct the jury 

that it must unanimously agree that the defendant committed the same specific criminal 

act. [Citation.] The duty to instruct on unanimity when no election has been made rests 

upon the court sua sponte." (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534

(Melhado).)

The Attorney General contends the prosecution elected to proceed on the basis of 

the backpack alone. In order for an election to be effective, a prosecutor must "directly 
13

inform the jurors of his election and of their concomitant duties . . . ." (Melhado, supra, 

60 Cal.App.4th at p. 1536.) Here, the prosecution made no such election. While the 

prosecutor discussed the taking of the backpack, he never informed the jury it was the 

only basis for the robbery charge. Moreover, in closing arguments, the prosecution 

expressly argued that taking the knife constituted robbery. For example, the prosecution 

rebutted Ramirez's statement to police, " 'Because I didn't do a 211. I didn't take nothing 

from nobody,' " by stating, "He did take the knife. Really, he did take the knife." 

Similarly, the prosecution explained, "We know that the defendant had the knife because 

he admitted to holding it. Then he runs away and we never see the knife again. I think 

that is pretty self-explanatory." To rebut Ramirez's claim of right defense, the 

prosecution pointed directly to the knife: "Either way he knew that knife did not belong 

to him. He knew the backpack did not belong to him. So those two items alone, how is 

there a claim of right to either of those two things?" The Attorney General's contention 

that the prosecution elected to proceed based only on the backpack is unpersuasive.

However, even assuming the court should have given a unanimity instruction 

under these circumstances (cf. People v. Riel (2000) 22 Cal.4th 1153, 1199), any error

was harmless. "Failure to give a unanimity instruction is governed by the harmless error 

standard of Chapman v. California (1967) 386 U.S. 18, 24, which requires the error to be

harmless beyond a reasonable doubt." (People v. Thompson (1995) 36 Cal.App.4th 843, 

853 (Thompson).) "Where the record provides no rational basis, by way of argument or 

evidence, for the jury to distinguish between the various acts, and the jury must have 

believed beyond a reasonable doubt that defendant committed all acts if he committed 
14

any, the failure to give a unanimity instruction is harmless. [Citation.] Where the record 

indicates the jury resolved the basic credibility dispute against the defendant and 

therefore would have convicted him of any of the various offenses shown by the 

evidence, the failure to give the unanimity instruction is harmless." (Ibid.)

Here, to the extent there was conflicting evidence of Ramirez's guilt, it rested on 

an assessment of Ramirez's credibility when he told police he thought German's backpack 

belonged to him. Ramirez's defense to robbery was based on a claim of right, and the 

court instructed the jury on the elements of that defense. During closing argument, 

Ramirez's counsel focused exclusively on that defense. Ramirez's counsel did not 

distinguish the facts surrounding the knife or present any separate defense to robbery 

based on the knife. The prosecution, for its part, interpreted Ramirez's claim of right 

defense as applying to both the backpack and the knife. The jury's guilty verdict shows it 

rejected Ramirez's version of the events and his claim of right defense. Under these 

circumstances, "the jury resolved the basic credibility dispute against the defendant and 

therefore would have convicted him of any of the various offenses shown by the 

evidence," and any error was harmless. (Thompson, supra, 36 Cal.App.4th at p. 853.)

Ramirez claims he presented a separate defense to robbery based on the knife, i.e., 

that there was no union of act and intent. We disagree. Although the jury was instructed 

that robbery requires the union of act and intent, Ramirez did not present a defense based 

on that principle to the jury. As we have noted, Ramirez presented a claim of right 

defense as to the backpack and did not present a separate defense as to the knife. Without 

some indication in the record that the jury could have distinguished between robbery 
15

based on the knife and robbery based on the backpack, the omission of a unanimity 

instruction was harmless beyond a reasonable doubt. (Thompson, supra, 36 Cal.App.4th 

at p. 853.) We find unpersuasive Ramirez's contention that the length of the jury's 

deliberations, or its request to have German's testimony read back, show that the error 

was prejudicial. "[O]n the record before us, we cannot speculate that this implied the jury 

believed it was a close case or it has some question about whom to believe." (People v. 

Tamborrino (1989) 215 Cal.App.3d 575, 587.)

V

Ramirez contends the court erred by not instructing the jury sua sponte on the 

defense of necessity. "A trial court has a sua sponte duty to instruct regarding a defense 

if there is substantial evidence to support the defense and it is not inconsistent with the 

defendant's theory of the case. [Citation.] In deciding whether there is substantial 

evidence, '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. Saavedra (2007) 156 Cal.App.4th 561, 567.) "On 

review, we determine independently whether substantial evidence to support a defense 

existed." (People v. Shelmire (2005) 130 Cal.App.4th 1044, 1055.)

"To justify an instruction on the defense of necessity, there must be evidence 

sufficient to establish that defendant violated the law (1) to prevent a significant evil, 

(2) with no adequate alternative, (3) without creating a greater danger than the one 

avoided, (4) with a good faith belief in the necessity, (5) with such belief being 
16

objectively reasonable, and (6) under circumstances in which he did not substantially 

contribute to the emergency." (People v. Pepper (1996) 41 Cal.App.4th 1029, 1035.)

Ramirez contends the evidence supports an instruction on the defense of necessity 

to both the assault charge and the robbery charge. Ramirez argues that he was compelled 

by necessity to grab the knife when it fell from German's backpack. We disagree. Even 

assuming the other elements are supported by substantial evidence, Ramirez has not 

shown that substantial evidence supports the proposition that Ramirez had an objectively 

reasonable belief that he was preventing a significant evil by taking German's knife and 

assaulting him with it.

Given German's version of the events (on which Ramirez appears to rely for 

purposes of this defense), when the knife fell out of the backpack, any reasonable person 

in Ramirez's position would have realized the knife (and thus likely the backpack) was 

not his. German's mere act of picking up his own knife did not pose the threat of 

significant evil that needed to be prevented. When German attempted to grab the knife, 

any reasonable person would have seen this action as an attempt to regain his own 

property, not a prelude to offensive violence. Under these circumstances, a reasonable 

person would not have believed it was necessary to grab German's knife and wield it 

against him to prevent a significant evil. Any reasonable person would have viewed 

retreat, or some other means of de-escalating the situation, as a reasonable alternative. 

Under Ramirez's version of the events, any belief in necessity was even more 

unreasonable. Ramirez told police he asked German whether he could look inside the 

backpack. German refused, and the knife fell out. While German may have grabbed for 
17

the knife at that point, there was no indication he sought to use it offensively. Under 

these circumstances as well, a reasonable person would not have believed it was 

necessary to grab German's knife and wield it against him to prevent a significant evil.

We conclude there was no substantial evidence supporting a defense of necessity. 

The court did not err by not instructing the jury on such a defense. (See People v. 

Saavedra, supra, 156 Cal.App.4th at p. 567.)

DISPOSITION

The judgment is affirmed.

BENKE, Acting P. J.

WE CONCUR:

HALLER, J.

AARON, J.