P. v. Novinger

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Filed 3/28/19 P. v. Novinger CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
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THE PEOPLE,
Plaintiff and Respondent,
v.
STEPHEN ALAN NOVINGER,
Defendant and Appellant.
C084518
(Super. Ct. Nos.
STK-CR-FE-2015-0006113,
LOD-CR-FE-2016-0015677)
Defendant Stephen Alan Novinger appeals his convictions for robbery, making
criminal threats, assault with a deadly weapon, possession of ammunition by a felon,
being a felon in possession of a firearm, and carrying a concealed firearm in a vehicle.
Defendant contends the trial court erred in failing to give a sua sponte unanimity
instruction, failing to give a self-defense instruction, and failing to stay the sentence on
possession of ammunition by a felon.

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After briefing was completed in this case, the Court of Appeal, Second Appellate
District, Division Two, issued its decision in People v. Aledamat (2018) 20 Cal.App.5th
1149, review granted July 5, 2018, S248105 (Aledamat), holding the trial court
prejudicially erred in instructing the jury with CALCRIM No. 875, that a box cutter could
be an inherently deadly weapon. We granted defendant’s request for supplemental
briefing based on this new authority.
We will stay the sentence on the possession of ammunition by a felon. In all other
respects, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On November 22, 2016, Crystal Gonzalez was working as a cashier at a Chevron
gas station convenience store on Kettleman Lane. Muhammad Khan was also a clerk for
Chevron. Although he worked at a different station, he was at the Kettleman Lane store
that morning, bringing them coffee filters.
Defendant came into the Kettleman store, acting shaky and erratic. He asked if
they had portable cell phone chargers. Gonzalez informed him they did not. Defendant
looked at a bin of cell phone chargers, and Gonzalez saw him take one. He then went
over to a display of chargers by a cash register, ripped one off the display, and returned to
Gonzalez’s register. He asked if it was a portable charger, she said it was not, and he
handed it back to her. Khan came into the Kettleman store while defendant was looking
at the chargers, and was behind the counter.
As defendant went to leave the store, Gonzalez asked if he was going to pay for
the charger he took. Defendant denied taking the charger. He was angry, and he started
yelling and cussing. Gonzalez told Khan defendant had stolen a charger. Defendant
walked out of the store and Khan followed him to see what kind of car he was driving
and to get a license plate number. Defendant saw Khan and started saying things, then he

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threw a traffic cone at Khan. When Gonzalez saw defendant throw the cone at Khan, she
called the police.
Khan was hit with the cone, Kahn “told him something” and then defendant came
toward him, cussing at him, wielding a knife. Defendant said, “I’m going to stab you”
and repeatedly said, “I’m going to get you.” Khan ran and hid. Defendant continued
searching for Khan, yelling, screaming, and cussing, “Come here, you motherfucker,
where you at?” Khan called 911. Khan was frightened and believed defendant would
stab him.
Officer Richard Dunfee arrived within a few minutes. He detained defendant and
in a pat search, found a folding knife in his pocket. Dunfee also searched defendant’s
car. Inside the car, Dunfee found pieces to two shotguns, and a third shotgun barrel. The
pieces could be assembled into a working shotgun. The shotgun pieces were in plain
sight on the floorboard, and could be seen from outside the car. The extra shotgun barrel
had two rounds of ammunition in it. Dunfee also found a handgun in the front console of
the car. The handgun had a live round in the chamber and eight rounds in the magazine.
Dunfee also found a knife and phone charger in the car.
Defendant testified he did not intend to steal the charger. He put it in his pocket
while he went to get a soda. The clerk accused him of trying to steal it, an accusation he
denied, and he gave it back to her. When he was walking to his car, Khan came out and
said, “I’m going to stab you, motherfucker.” Defendant turned around and said, “Okay.
You got a problem?” They argued. Defendant felt threatened by Khan’s statement. He
denied threatening Khan. He also denied knowing the guns were in his car.
A December 15, 2016 information charged defendant with second degree robbery
(Pen. Code, § 211—count 1),1 criminal threats (§ 422, subd. (a)—count 2), assault with a
1 Undesignated statutory references are to the Penal Code.

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deadly weapon (§ 245, subd. (a)(1)—count 3), possession of ammunition by a felon
(§ 30305, subd. (a)(1)—count 4), felon in possession of a firearm (§ 29800, subd.
(a)(1)—count 5), and carrying a concealed firearm in a vehicle (§ 25400, subd. (a)(1)—
count 6). The People also alleged defendant violated probation in a prior case by
committing these offenses.
A jury found defendant guilty on all counts and the trial court found defendant had
violated probation in his earlier case. The trial court sentenced him to an aggregate term
of four years four months, as follows: count 1, the middle term of three years in state
prison; count 2, the middle term of two years in prison, concurrent to count 1; count 3,
the middle term of three years in prison stayed pursuant to section 654; count 4, the
middle term of two years in prison, concurrent to count 1; count 5, one-third the middle
term of eight months in prison, consecutive to count 1; count 6, time served; and, eight
months consecutive on the prior case.
DISCUSSION
1.0 Unanimity Instruction
Defendant contends his robbery conviction must be reversed as the trial court
erred in failing to give a sua sponte unanimity instruction. He contends that in closing
argument the prosecution argued that both Khan and Gonzalez were the victims of the
robbery, and there was only one robbery charge; therefore, the trial court was required to
give a unanimity instruction as to whether Khan or Gonzalez was the victim of the
robbery.
A criminal defendant is constitutionally “entitled to a verdict in which all 12 jurors
concur, beyond a reasonable doubt, as to each count charged.” (People v. Jones (1990)
51 Cal.3d 294, 305.) Accordingly, when a defendant is charged with a single criminal act
but the evidence reveals more than one such act, “either the prosecution must elect

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among the crimes or the court must require the jury to agree on the same criminal act.”
(People v. Russo (2001) 25 Cal.4th 1124, 1132.) “This is the so-called ‘either/or’ rule,”
“under which the trial court may meet its sua sponte obligations with either an election or
an instruction . . . .” (People v. Salvato (1991) 234 Cal.App.3d 872, 880, 878.) Thus, if
the prosecutor elects the specific act relied upon to prove the charge, the court has no
duty to instruct the jury that it must agree on the same criminal act. (Id. at p. 880.) To be
effective, the prosecution’s election must be clearly communicated to the jury. (People v.
Hawkins (2002) 98 Cal.App.4th 1428, 1455.) The prosecution can do so by “tying each
specific count to specific criminal acts elicited from the victims’ testimony”—typically in
opening or closing argument. (People v. Diaz (1987) 195 Cal.App.3d 1375, 1382.)
Here, in closing argument, the prosecution argued the phone charger was taken
from the “immediate presence” of both Gonzalez and Khan. The prosecutor also stated,
“Force or fear was used when taking the property. Now, in this situation—well, the law
says I have to prove beyond a reasonable doubt that he used force or fear. In this case, he
did both, as we know. He yelled and made threatening gestures toward [Gonzales]. He
threw a cone at [Khan] while he was trying to get his license plate number. He pulled a
knife on [Khan]. Chased him into the car lot, and then verbally threatened him. Again,
using the weapons that he had on him, the cone and the knife.” Defendant claims based
on this argument, there were two possible victims of the robbery and the jury should have
been given a unanimity instruction.
Defendant’s claim disregards the rest of the record, which vitiated any need for a
unanimity instruction. In addition to the arguments defendant recites above, the
prosecutor also made clear in argument, “This was a robbery. A petty theft instruction is
going to say he took something, he left the store, and that’s it. That went out the window
when the violence started. That’s when it became a robbery, when he threw the cone,
when he threatened [Khan], when he pulled out the knife. That’s when the robbery

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happened. That’s the force and fear. Okay?” In rebuttal closing argument, the
prosecution restated, “It’s a robbery. It is very clearly a robbery. There is no doubt to
that at all. This is not a petty theft. Again, that went out the window the minute he threw
the cone and was yelling and screaming and pulling knives and threatening. The petty
theft went out the window at that point.” The conduct described here elevating the
offense from a petty theft to a robbery only occurred as to Khan, and the prosecutor made
that clear.
Despite these arguments, apparently, trial counsel interpreted closing argument in
the same way as appellate counsel does. Thus, after closing argument, she requested the
verdict forms be amended to explicitly name Khan as the victim of the robbery “so that
there’s no confusion to the jurors.” The trial court agreed “to be safe.” Accordingly, the
prosecution prepared new verdict forms to give to the jury, explicitly naming Khan as the
victim of the robbery. In addition to the jury verdict forms, the information named Khan
as the victim of the robbery. The information was read to the jury. By naming Khan as
the victim in both the information and the verdict forms, the People expressly elected to
proceed on the theory that he was the victim to ensure a unanimous verdict as
constitutionally required. That election was directly communicated to the jury. (See
People v. Mayer (2003) 108 Cal.App.4th 403, 418-419; People v. Melhado (1998)
60 Cal.App.4th 1529, 1539.)
Furthermore, in this case, even if we assume a unanimity instruction was required,
the error is harmless even under the Chapman standard of beyond a reasonable doubt.
(People v. Hernandez (2013) 217 Cal.App.4th 559, 576-577 [noting split of authority as
to whether Chapman or Watson standard applies to erroneous omission of unanimity
instruction (Hernandez, at p. 568, fns. 6 & 7)].)2 Here, the jury returned the verdict
2 Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705]; People v. Watson (1956)
46 Cal.2d 818.

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forms, naming Khan as the victim of the robbery. The clerk read the verdict aloud in
open court, naming Khan as the victim of the robbery, and each juror confirmed this was
his or her verdict. The purpose of a unanimity instruction is to ensure the jury agrees on
a particular crime having been committed. In this case, it would have been unacceptable
for some jurors to believe defendant committed a robbery of Gonzalez and others to
believe defendant was guilty of a robbery of Khan. (People v. Russo, supra, 25 Cal.4th at
p. 1134.) We can think of no more compelling demonstration that there was no
disagreement as to who was the victim of the robbery than the jury’s unanimously finding
and confirming its verdict in open court, explicitly stating that Khan was the victim of the
robbery. Logically, when a jury verdict form sets forth a particular factual theory, the
jury must be presumed to have limited its finding of guilt to that particular factual theory.
Accordingly, even if there was error, it was harmless beyond a reasonable doubt.
2.0 Self-defense Instruction
Defendant contends the trial court erred in failing to instruct the jury on self-
defense. He contends his testimony that Khan came out of the store and yelled he was
going to stab defendant, which made him feel threatened, justified an instruction on self-
defense.3
2.1 Background
In conference on instructions relating to assault with a deadly weapon, which
includes a reference to defendant’s acting in self-defense, the court asked defense counsel
if she was “requesting self-defense.” She stated, “Not at this point.” Accordingly, the
trial court deleted that provision from the instruction. Later, in discussions prior to
closing argument, the prosecution asked, “On the [section] 245 [assault with a deadly
3 Defendant does not indicate to which offense he would have offered a self-defense
theory. The only offense to which such a theory would apply is the assault with a deadly
weapon charge. Our analysis proceeds accordingly.

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weapon] you’re not going [to] mention anything about self-defense, even though that’s
one of the elements, not done in self-defense?” The trial court answered, “They only get
that if they’re asking for self-defense.”
Defense counsel made a motion for acquittal (§ 1118) on the robbery charge. The
trial court denied the motion, finding there was enough evidence for the jury to determine
the robbery count. The court then continued, “I wanted to put on the record—I asked if
the defense was going to be requesting a self-defense, and they said they were not. And
even were they to request the self-defense, I don’t think that there would be substantial
evidence to support it. [¶] So it was not requested, but even if it was, I want the record to
be clear that I don’t think that there’s enough to substantiate giving the self-defense
instruction in this case.”4
2.2 Analysis
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 defendant [citation]—unless the defense is inconsistent with the defendant’s theory of
the case [citation]. 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 (2006) 37 Cal.4th 967, 982.) But if the
evidence of the purported defense is minimal or insubstantial there is no duty to instruct.
(People v. Barnett (1998) 17 Cal.4th 1044, 1145.) The doctrine of invited error will
operate to preclude a defendant from gaining reversal on appeal because of such an error
4 Contrary to defendant’s claim, this was not a “ruling” by the trial court “refusing” to
give the self-defense instruction. Defense counsel never made a request for the self-
defense instruction.

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made by the trial court at the defendant’s behest. (See People v. Sedeno (1974) 10 Cal.3d
703, 716; People v. Wickersham (1982) 32 Cal.3d 307, 330; People v. Cooper (1991)
53 Cal.3d 771, 827.) The doctrine of invited error will apply, if defense counsel suggests,
or accedes, to the instructional error, only if there is a deliberate tactical choice between
having the instruction and not having it, even if such a choice was based on a
misunderstanding of the law. (See People v. Graham (1969) 71 Cal.2d 303, 319; People
v. Cooper, supra, 53 Cal.3d at p. 831; People v. Duncan (1991) 53 Cal.3d 955, 969-970.)
As above, defense counsel explicitly informed the court she was not requesting a self-
defense instruction.
Even in the absence of defense counsel’s “inviting error,” “[a]s to defenses, such
as self-defense, the court must instruct sua sponte only if there is substantial evidence of
the defense and the defense is not ‘inconsistent with defendant’s theory of the case.’
(People v. Breverman [(1998)] 19 Cal.4th 142[, 157], quoting from Sedeno.) . . . [I]n the
event that there is substantial evidence of a defense inconsistent with the defense
advanced by the defendant, the court should ascertain whether the defendant wants
instructions on the alternate theory.” (People v. Elize (1999) 71 Cal.App.4th 605, 615.)
In this case, there was no error in failing to give the self-defense instruction,
because it was inconsistent with the defense theory. The defense theory on the assault
with a deadly weapon charge was that defendant was too far away from Khan for it to
constitute an assault, i.e., “an unlawful attempt, coupled with a present ability, to commit
a violent injury on the person of another.” (§ 240.) Defense counsel argued, “I would
like to discuss the [section] 245. In this case, the distance matters on whether or not it’s a
[violation of section] 245. Mr. Khan says he saw a knife come out of a pocket, but he
sees this knife 20 feet away. He described—I got to be very clear. [Defendant] had
walked out. There’s a handicapped space. There was a truck parked here, and there was

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a car, which he says was [defendant’s], and [defendant] was there. He was on the
opposite side at least 20 feet away when he felt a cone either go by him or hit him.
“And he turned around at that point. At least 20 feet away is when he alleges he
saw a knife. And he kept going like this at his side. The law requires for both a [section]
245 and a [section] 240 that any actions that [defendant] would have taken probably
would result—if I’m standing 20 feet away from this person and I’m holding it here, I’m
not probably going to use it. That’s not assault with a deadly weapon.
“You know what it is? It is actually exhibiting a weapon in a rude or angry
manner. That’s what he did.” Later she again argued the distance between Khan and
defendant prevented it from being an assault. “The government charged him with assault
with a deadly weapon, and that’s not what this case is. Distance matters. I cannot stab
somebody 20 feet away. I am not assaulting them with a deadly weapon. I’m being rude.
I might be exhibiting it in a rude, angry manner. It’s not what he’s charged with. And it
matters. [¶] Your job, you have to methodically go through. There is no—when it says
that this act, pulling it out and standing 20 feet away, would directly and probably
result—no. If I was two feet away and I pulled it out in a rude and angry manner, that’s a
difference. I could directly and probably have injured somebody. I can apply force when
someone’s here, not 20 feet away.” And she concluded her argument with, “It’s to the
[section] 245, assault with a deadly weapon. There’s no assault. He has to be close
enough to actually probably be able to carry that out. He wasn’t able to.”
A claim of self-defense requires the defendant to reasonably believe that he was in
imminent danger of suffering bodily injury and the immediate use of force was necessary
to defend against that danger. (CALCRIM No. 3470.) If defendant was too far away
from Khan to have a present ability to commit a violent injury, logic dictates Khan was
too far away from defendant to have made him reasonably fear he was in imminent
danger of suffering bodily injury. Thus, the theories were inconsistent. Because self-

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defense was inconsistent with the defense theory of the case, there was no error in failing
to instruct on self-defense.
3.0 Section 654
Defendant contends, and the People concede, that the trial court erred in failing to
stay the sentence on unlawful possession of ammunition in count 4, because that
ammunition was found in the firearms he was convicted of unlawfully possessing in
counts 5 and 6. “To allow multiple punishment for possessing ammunition in a firearm
would, in our judgment, parse the objectives too finely. While there may be instances
when multiple punishment is lawful for possession of a firearm and ammunition, the
instant case is not one of them. Where, as here, all of the ammunition is loaded into the
firearm, an ‘indivisible course of conduct’ is present and section 654 precludes multiple
punishment.” (People v. Lopez (2004) 119 Cal.App.4th 132, 138.) Accordingly, we will
order the sentence for count 4 stayed under section 654.
4.0 CALCRIM No. 875
Defendant contends the trial court erred in instructing the jury with CALCRIM
No. 875 that a folding knife could be an inherently deadly weapon. He argues this was
an invalid legal theory and, relying on Aledamat, supra, 20 Cal.App.5th 1149, review
granted, contends the error was prejudicial as there is no basis for concluding the jury
relied on the alternative, correct legal theory defining a deadly weapon.
4.1 Background
The trial court instructed the jury with CALCRIM No. 875 delineating the
elements of assault with a deadly weapon other than a firearm. The instruction defines a
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.”

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In closing argument, the People did not mention the concept of an inherently
deadly weapon. The People argued, “defendant did an act with a deadly weapon that by
its nature would directly and probably result in the application of force to a person. [¶]
Defendant acted willfully. [¶] And when he acted, he was aware of facts that would lead
a reasonable person to realize his act, by its nature, would directly and probably result in
the application of force to someone. When he acted, he had the present ability to apply
that force. [¶] Element number one, defendant did an act with a deadly weapon that by
its nature would directly and probably result in the application of force on [Khan]. [¶]
Defendant pulled the knife on him, he chased him with the knife, threatened him with the
knife. His actions suggested his intent to harm [Khan], and [Khan] took it that way.”
“Defendant pulled the knife on [Khan] and chased him. He acted willfully. And when he
acted, he knew his actions conveyed to [Khan] the threat of being stabbed. He had the
ability to stab him. He’s guilty of count 3, assault with a deadly weapon.”
Nor did defendant argue the folding knife was not an inherently deadly weapon.
Counsel argued, as noted above, “I would like to discuss [section] 245. In this case, the
distance matters on whether or not it's a [section] 245. Mr. Khan says he saw a knife
come out of a pocket, but he sees this knife 20 feet away. He described—I got to be very
clear. [Defendant] had walked out. There's a handicapped space. There was a truck
parked here, and there was a car, which he says was [defendant’s], and [defendant] was
there. He was on the opposite side at least 20 feet away when he felt a cone either go by
him or hit him. [¶] And he turned around at that point. At least 20 feet away is when he
alleges he saw a knife. And he kept going like this at his side. The law requires for both
a [section] 245 and a [section] 240 that any actions that [defendant] would have taken
probably would result—if I'm standing 20 feet away from this person and I'm holding it
here, I'm not probably going to use it. That's not assault with a deadly weapon.” “It's to

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the [section] 245, assault with a deadly weapon. There's no assault. He has to be close
enough to actually probably be able to carry that out. He wasn't able to.”
In rebuttal, the People responded to defendant’s argument about the distance, but
still did not argue the knife was an inherently deadly weapon. “With regard to the assault
with a deadly weapon. Mr. Khan told you that the defendant was 20 feet away when he
threw the cone, and by the time he turned around, the defendant was running at him with
the knife. ‘Charging at him,’ I believe [were] the words he used. Coming at him with a
knife. [¶] If Mr. Khan is standing still and [defendant’s] running, that gap gets filled
really quick; 20 feet is nothing. Of course he had the present ability to stab him with the
knife. [¶] Of course distance matters, but it's what Mr. Khan felt was going to happen to
him. And of course he felt like he was going to be stabbed. He ran for his life. He ran,
he hid, he zigzagged. He did everything he could to get away from [defendant]. Of
course he was assaulted with a deadly weapon.”
4.2 Analysis
Initially, the People contend the claim is forfeited by defendant’s failure to object
in the trial court. “The trial court must instruct even without request on the general
principles of law relevant to and governing the case. [Citation.] That obligation includes
instructions on all of the elements of a charged offense.” (People v. Cummings (1993)
4 Cal.4th 1233, 1311, abrogated on another ground in People v. Merritt (2017) 2 Cal.5th
819, 831 (Merritt).) The claim here relates to an element of the offense—the definition
of a deadly weapon. Accordingly, it is not forfeited. (§ 1259; People v. Gerber (2011)
196 Cal.App.4th 368, 390.)
The standard version of CALCRIM No. 875, as given, suggests to the jury that a
folding knife is an inherently deadly weapon. This was error because, as a matter of law,
it is not. (People v. McCoy (1944) 25 Cal.2d 177, 188.) The parties do not dispute that
the inclusion of language regarding an “inherently deadly weapon” in CALCRIM

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No. 875 was instructional error. They disagree, however, on whether the error was
prejudicial. Relying on Aledamat, defendant contends the instructional error represents a
legally invalid theory and the conviction must be reversed under a heightened Chapman
standard; that is, that the record must affirmatively show the jury actually relied on the
alternative, correct, definition of a deadly weapon. (Aledamat, supra, 20 Cal.App.5th at
pp. 1153-1154, review granted.) The People argue the instructional error represents a
factually invalid theory, which should be affirmed, or alternatively if it is a legally invalid
theory, the conviction should be found harmless under the Chapman standard.
An invalid legal theory involves an incorrect statement of law. An invalid factual
theory involves a legally correct statement of law, but one which does not apply to the
case as it is not supported by the facts of the evidence. (People v. Guiton (1993)
4 Cal.4th 1116, 1125 (Guiton), citing Griffin v. United States (1991) 502 U.S. 46, 59
[116 L.Ed.2d 371].) “Inherently deadly weapon” is a term of art describing objects that
are deadly in “the ordinary use for which they are designed”; that is, weapons that have
no practical nondeadly purpose. (People v. Perez (2018) 4 Cal.5th 1055, 1065.) The
jurors were not instructed with this definition. Based on the common understanding and
usage of the phrase “deadly weapon,” they could have understood the phrase to include a
folding knife, which can be used for cutting and stabbing. Because of the variance
between common understanding and the legal definition of “deadly weapon,” the error
here was legal, rather than factual. As in Aledamat, “[t]here was no failure of proof—that
is, a failure to show through evidence that the [folding knife] is an ‘inherently dangerous’
weapon. Instead, [a folding knife] cannot be an inherently deadly weapon ‘as a matter of
law.’ [Citation.] 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.” (Aledamat, supra, 20 Cal.App.5th at p. 1154, review

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granted.) The instructional error presented an invalid legal theory to the jury, not an
invalid factual theory. We agree with Aledamat on this point. (Ibid.)
We disagree, however, with Aledamat on its analysis of the correct standard of
prejudice to be applied to this error. Aledamat applied a “heightened” version of the
Chapman standard, stating that when a jury has been presented 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
valid ground.’ ([Guiton, supra,] 4 Cal.4th [at pp.] 1122, 1129.) That basis exists only
when the jury has ‘actually’ relied upon the valid theory ([People v.] Aguilar [(1997)]
16 Cal.4th [1023], 1034, italics added; see 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.)” (Aledamat, supra, 20 Cal.App.5th at p. 1153, review granted.) Aledamat went on
to acknowledge that the standard of prejudice it was utilizing was “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
pp. 821-822, 830-832; see Neder v. United States (1999) 527 U.S. 1, 17-18, [144 L.Ed.2d
35].)” (Aledamat, supra, at p. 1154, review granted.) But, the Aledamat court claimed
the California Supreme Court’s decision in Guiton was on point and mandated this result.
Aledamat left it to our Supreme Court to revisit or reconsider this case law. (Ibid.)
Guiton determined the standard of review in the case of the jury being instructed
with a factually inadequate theory. It explicitly did not determine the standard of
prejudice where the jury was instructed with a legally inadequate theory. “Since we
ultimately conclude that this case is governed by Griffin, supra, 502 U.S. 46 [factually
inadequate theory], we need not decide the exact standard of review of cases governed by

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[People v.] Green [(1980)] 27 Cal.3d 1 [legally inadequate theory].” (Guiton, supra,
4 Cal.4th at pp. 1130-1131.) Guiton stated that although the general rule was to reverse
such a conviction because the appellate court could not determine which theory served as
the basis for the verdict, there were various ways in which to determine from other
portions of the verdict that the jury necessarily found the defendant guilty under the
proper theory. (Guiton, supra, 4 Cal.4th at p. 1131.) And, Guiton went on to
acknowledge “[t]here may be additional ways by which a court can determine that error
in the Green situation is harmless. We leave the question to future cases.” (Ibid.; see
People v. Chun (2009) 45 Cal.45th 1172, 1203.)
Since Guiton, some of those “future cases” have been decided, and they indicate
that the standard of prejudice to be applied in this case is the Chapman standard, not a
version which requires affirmative proof of the jury’s reliance on a legally valid theory.
Since Guiton and Green the California Supreme Court has stated, “An instruction on an
invalid theory may be found harmless when ‘other aspects of the verdict or the evidence
leave no reasonable doubt that the jury made the findings necessary’ under a legally valid
theory. (People v. Chun[, supra,] 45 Cal.4th [at p.] 1205.)” (In re Martinez (2017)
3 Cal.5th 1216, 1226.) In a related context—the omission of an element of the offense in
the jury instructions—the Supreme Court explained, “[A] demonstration of harmless
error does not require proof that a particular jury ‘actually rested its verdict on the proper
ground [citation], but rather on proof beyond a reasonable doubt that a rational jury
would have found the defendant guilty absent the error [citation].” (People v. Gonzalez
(2012) 54 Cal.4th 643, 666.) In making this determination, we may review whether other
aspects of the verdict leave no reasonable doubt that the jury made the findings necessary
for the valid theory (People v. Chun, supra, 45 Cal.4th at p. 1205); evaluate the evidence
to determine whether the element was uncontested and supported by overwhelming

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evidence (Merritt, supra, 2 Cal.5th at p. 832); and consider the prosecutor’s closing
argument (In re Martinez, supra, 3 Cal.5th at pp. 1226-1227).
This standard is consistent with the traditional Chapman harmless error test
applied to cases in which the error amounts to a misinstruction on the elements of an
offense, and we believe it is the correct standard in this case. (People v. Stutelberg
(2018) 29 Cal.App.5th 314, 320.) That test is “whether it appears ‘beyond a reasonable
doubt that the error complained of did not contribute to the verdict obtained.’ ” (People
v. Harris (1994) 9 Cal.4th 407, 424.) “ ‘To say that an error did not contribute to the
verdict’ . . . ‘is . . . to find that error unimportant in relation to everything else the jury
considered on the issue in question, as revealed in the record.’ ” (People v. Harris,
supra, 9 Cal.4th at p. 430, quoting Yates v. Evatt (1991) 500 U.S. 391, 403 [114 L.Ed.2d
432; see Merritt, supra, 2 Cal.5th at pp. 827-828 [an instruction omitting elements of the
offense may be harmless where omitted elements were undisputed, the defense was able
to contest the omitted elements, and overwhelming evidence supports the omitted
element].)
Defendant did not dispute that a folding knife can constitute a deadly weapon if
used in such a way that it is capable of causing and is likely to cause death or great bodily
injury. The evidence showed defendant used the knife in such a manner as he threatened
to stab Khan with the knife and repeatedly said he was going “to get” Khan. When Khan
ran and hid, defendant continued searching for him, wielding the knife, and angrily
pursuing Khan. Khan was frightened and thought defendant was going to stab him.
Defendant did not contest that this use was capable of causing great bodily injury or
death. Rather, defendant argued the act of pulling the knife out and chasing Khan was
not an act that “by its nature would directly and probably result in the application of force
to a person” (CALCRIM No. 875), as he was 20 feet away from Khan. Nor did the
People argue that the knife was an inherently deadly weapon. The People also focused

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on the nature of defendant’s act, chasing and threatening Khan with the knife, and
whether that act would directly and probably result in the application of force to a person;
rather than whether the weapon was inherently dangerous. Given the weight of the
evidence and testimony focusing on how defendant actually used the knife, the arguments
of both counsel, and the fact the People did not even mention the invalid theory (Guiton,
supra, 4 Cal.4th at p. 1130), any error in not omitting the language concerning
“inherently deadly or dangerous” weapons when defining “deadly weapon” was harmless
beyond a reasonable doubt. We are persuaded beyond a reasonable doubt the error in
CALCRIM No. 875 was unimportant in relation to everything else the jury considered.
(People v. Brown (2012) 210 Cal.App.4th 1, 13-14.)
DISPOSITION
The sentence for count 4, possession of ammunition by a felon, is stayed under
section 654. The trial court is directed to prepare an amended abstract of judgment and
forward a certified copy to the Department of Corrections and Rehabilitation. In all other
respects, the judgment is affirmed.
BUTZ , Acting P. J.
We concur:
HOCH , J.
RENNER , J.

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