Opinion by Justice Chin (joined by Chief Justice Cantil-Sakauye and Justices Corrigan and Kruger). Justice Liu filed a concurring and dissenting opinion. Justice Cuéllar also filed a concurring and dissenting opinion, in which Justice Groban concurred.

When a trial court instructs a jury on two theories of guilt and one of the theories is legally incorrect (alternative-theory error), the more general harmless beyond a reasonable doubt standard applies. Defendant approached the owner of a food truck, made crude comments about his wife, and jabbed a box cutter towards him from three to four feet away, without making contact. He was convicted by a jury of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), specifically a box cutter, and making a criminal threat (Pen. Code, § 422). As to the threat charge, the jury found defendant personally used a deadly and dangerous weapon (Pen. Code, § 12022, subd. (b)(1)). The Court of Appeal reversed the conviction of assault with a deadly weapon and the true finding on the weapon allegation, concluding the trial court committed prejudicial instructional error. The California Supreme Court granted review. Held: Reversed. A few objects are inherently deadly weapons. Others, including a box cutter, are deadly weapons only if used in a way that makes them deadly weapons. Here, the trial court presented the jury with two possible theories of guilt: (1) that the box cutter was inherently deadly, and (2) that defendant used the box cutter in a deadly way. The first theory was erroneous because a box cutter is, as a matter of law, not inherently deadly. The second theory was correct. This “alternative-theory error” was legal error, as the jury was not equipped to know that a box cutter cannot be inherently deadly as a matter of law. Like instances where the trial court misdescribes the elements of an offense, alternative-theory error is subject to the usual “beyond a reasonable doubt” standard of review established in Chapman v. California (1967) 386 U.S. 18, 24, not a higher standard of review. In determining whether the error was harmless, the reviewing court is not limited to a review of the verdict itself, although examination of the actual verdict may be sufficient to demonstrate harmlessness (disapproving People v. Green (1980) 27 Cal.3d 1).

The trial court’s error in presenting the jury with a legally incorrect theory (that a box cutter may be an inherently dangerous weapon) and a correct legal theory was harmless beyond a reasonable doubt. Here, the instruction referred to an object 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.” This juxtaposition indicates what the “inherently deadly” language was driving at, and the jury was further instructed to consider all of the surrounding circumstances, including when and where the object was possessed, and any other evidence indicating whether the object would be used for a dangerous rather than harmless purpose. “Given this additional instruction, it seems unlikely the jury would simply view the box cutter as inherently deadly without considering the circumstances, including how defendant used it.” Moreover, defense counsel did not contest the point that the box cutter was a deadly weapon, and even if he had, such an argument would have been futile based on the evidence in this case. Under the instructions, the jury necessarily found defendant: (1) did an act with a deadly weapon (either inherently or as used) that by its nature would directly and probably result in the application of force; (2) 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 (3) had the present ability to apply force with a deadly weapon to a person. Even if the jury applied the common understanding of the term “inherently deadly,” it would necessarily find the box cutter deadly in the colloquial sense of the term (i.e. readily capable of inflicting deadly harm) and that defendant used it as a weapon. Because “no reasonable jury that made all of these findings could have failed to find that defendant used the box cutter in a way that is capable of causing or likely to cause death or great bodily injury,” the error was harmless beyond a reasonable doubt.

In future cases, the “inherently deadly” language in the standard jury instructions on assault with a deadly weapon and use of a deadly and dangerous weapon (CALCRIM Nos. 875, 3145) should be modified or deleted. The court cautioned that in most cases, the standard instructions on assault with a deadly weapon and use of a deadly and dangerous weapon are problematic (see CALCRIM Nos. 875, 3145) because they do not define an “inherently deadly weapon” and because they provide the jury with an inherently deadly theory even where the weapon is not inherently deadly as a matter of law. Also, because most objects are not inherently deadly even if they may be used in a way that makes them deadly, the “inherently deadly” language is usually unnecessary and could simply be deleted from the instructions. If the prosecution believes the weapon used in a given case is inherently deadly (such as a dirk or blackjack), “and it believes modifying the instruction would be useful, it may request the court to add that theory of the case to the instructions. On such a request, the court should consider whether the evidence would support a finding that the weapon is inherently deadly. If so, the court would have discretion to instruct on that theory. If it does so, however, it should also define what is meant by inherently deadly, i.e., an object that is designed for use as a deadly weapon.” [Editor’s Note: In a footnote, the court asked whether a policy exists for treating inherently deadly weapons differently from other objects capable of being used as a deadly weapon, particularly since the distinction is not reflected in the text of section 245. The court did not answer this question, however, because it was not presented by the facts and arguments of this case.]

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/S248105.PDF