People v. Marsh

Filed 7/15/19

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D074053

Plaintiff and Respondent,

v. (Super. Ct. No. SCD273759)

SPENCER ALAN MARSH,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Albert T.

Harutunian III, Judge. Affirmed.

Red Adam Williams, under appointment by the Court of Appeal, for Defendant

and Appellant.

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

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V.

Acosta, Deputy Attorneys General, for Plaintiff and Respondent.
 A jury convicted defendant Spencer Alan Marsh of assault with a deadly weapon

(Pen. Code, 1 § 245, subd. (a)(1), count 1) and vandalism (§ 594, subd. (a)(b)(1), count 2).

The jury also found true the allegations in connection with count 1, that the deadly

weapon used to commit this offense was a vehicle (Veh. Code, § 13351.5), and that

defendant personally used this dangerous and deadly weapon (§ 1192.7, subd. (c)(23));

and in connection with count 2, that the amount of property damage was $400 or more.

The court sentenced defendant to the midterm of three years in prison on count 1, and

stayed under section 654, subdivision (a) a two-year midterm sentence on count 2.

On appeal, defendant contends that there is insufficient record evidence to support

his conviction of assault with a deadly weapon; that the court prejudicially erred in

instructing the jury on the meaning of the phrase "deadly weapon"; and that defense

counsel violated his constitutional rights by allegedly conceding during closing argument

that defendant was guilty of the vandalism charge in count 2. As we explain, we disagree

with these contentions and affirm the judgment.

FACTUAL OVERVIEW

Alex P., a Navy SEAL, testified he drove a Jeep Grand Cherokee to a fitness club

located in Pacific Beach at about 7:00 a.m. on June 21, 2017. Alex parked his vehicle in

the back of the fitness club, near a few other vehicles including a white van. As he

parked, Alex noticed a man was sitting inside the van. Alex and his wife had acquired

this vehicle just a few months earlier. After validating his parking ticket inside the club,

1 Unless noted otherwise, all further statutory references are to the Penal Code.
2
Alex went back outside and placed the ticket on the dashboard. As he did so, Alex

noticed the man was still sitting in the van.

A little over an hour later, Alex left the club. As he approached his vehicle, Alex

saw "two puddles" near the front tires, which he found "strange" because his car had been

parked while he exercised inside the club. As part of his SEAL training, Alex testified

they sometimes "introduce[d] malfunctions" into various vehicles in order to learn how to

spot and/or repair them. One such malfunction involved the "brake lines" of a vehicle.

Because it was sunny that day, Alex saw a "sheen" under the vehicle caused by the

puddles.

On investigation, Alex found an "oily" liquid that was inconsistent with just water.

While on the ground under the vehicle, he looked up near the tire on the driver's side and

found the brake fluid line and the antilock brake system sensor had both been "cut" or

"severed" at the "same spot." Concerned that this was not an accident, Alex stood up,

looked around, and noticed the same man was still sitting in the driver's seat of the white

van parked near his vehicle.

Alex contacted the man, hoping to find out what had happened to his vehicle.

That man was defendant, who Alex identified in court. Until that day, Alex had never

seen or met defendant. Alex approached the man and stated, "Hey, man. Who cut my

brake lines?" Alex testified he then was "pretty upset" by what had happened, as he was

concerned not only for his safety, but the safety of his wife and their "baby."

Alex testified the man's demeanor was "standoffish" as the man responded, "I

don't know what you're talking about." Alex became even more upset as a result of the

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man's response, inasmuch as the man had been sitting in his van before Alex went inside

to exercise and was still sitting in his van over an hour later. Alex testified, "And I told

him that, and . . . said, 'Hey, man. You were here the whole time. You' — 'Somebody

had blatantly went under my car and did this. Either you did it, or you know who did it.

So what's up with my car? Why is it like that?' " According to Alex, the man gave the

same response as before, claiming he was just living in his van. Alex estimated he was

about three or four feet from the driver's door while they were having this exchange.

After again imploring the man to tell him what had happened to his vehicle, Alex

said, "All right, man. I'm just going to call the police." The man in the van appeared

unfazed. Alex next used his phone to take a picture of the van's license plate. He then

checked the rest of his vehicle and found the brake lines on the passenger side also had

been severed in the "same linear fashion" as the driver's side. Once he got to his feet,

Alex noticed a "bunch" of surveillance cameras in the area, including one facing the

parking lot. Alex went back inside the club and contacted a manager, seeking help in

determining who had intentionally damaged his vehicle.

Alex went back outside and called police on the nonemergency number. Alex

testified he was "pretty heated" when reporting the incident to police. Shortly thereafter,

the man in the white van drove away, ostensibly because the man overheard Alex

reporting the crime.

Alex then tested his brakes by pushing on the vehicle's brake pedal. Alex found

there "was a little bit of pressure or pushback, which is what you want in a brake, but

there wasn't a whole lot." He then got out of the car and again checked the brakes lines.

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Unlike before, this time "fluid was actively leaving the brake lines," which indicated to

him there were "definitely brake lines issues." Alex testified the vehicle would still start

even if the brakes could not stop the car once it was moving. Alex tested the brake pedal

again and found he was able to get the pedal "all the way down" to the floorboard of the

vehicle.

The police responded to the scene about 10 or 15 minutes after Alex's call. Alex

gave a statement. The vehicle was towed to a dealership for repair, as Alex did not want

to risk driving the vehicle and experiencing "possible catastrophic brake failure."

During Alex's testimony, the jury was shown a portion of the surveillance video

from the parking lot camera. The video showed the white van described by Alex; Alex

pulling into the lot in the Cherokee; Alex getting out of the vehicle, going inside to get

his parking validated, and coming back outside to put the parking ticket on the dashboard

of his vehicle; and Alex exiting the fitness club about an hour later, and shortly thereafter,

engaging the man in the white van.

Hope Rubin, the manager of the fitness club, testified fitness members could park

in the back of the club, obtain a parking pass that they would place inside their car, and

then use the club facilities. She further testified the fitness club had a surveillance

camera overlooking the entire back parking lot; a camera at each club entrance, allowing

the club to see who is entering and exiting the club; and a camera at the front desk, where

members check in, among other cameras inside the club. Rubin testified that video

footage from the cameras streams into a computer located in her office; that she can

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simultaneously view the video from four different cameras on her computer; that the

times and dates on the videos are accurate; and that the fitness club maintains the videos.

Regarding the instant case, Rubin stated sometime in September 2017 a detective

from the San Diego Police Department inquired about video footage from June 21 in

connection with "someone tampering with some[one] else's car." Rubin watched the

parking lot video from June 21 and then contacted another individual "who actually pulls

the video and burns it to send to the detective."

Rubin testified that when she watched the video she saw "an individual slide under

a car . . . like shimmy under the car on both sides"; that video from inside the fitness club

showed this same individual entered the club and checked in; that the individual who

"went under the car had the same physique and body type and was also wearing the same

clothes as the individual who walked in the facility"; that in response to information

provided by the detective, Rubin generated a "check-in record" and determined this

individual was a club member; and that this member's name was "Spencer Marsh." Prior

to the incident, Rubin had never seen or met either defendant or Alex.

The records from the fitness club showed defendant checked in at the club at "7:05

and 13 seconds in the morning." Additional video from the fitness club's surveillance

system was shown to the jury. Rubin testified the video of a man at the front desk

"holding [a] coffee cup" was the same "individual with the same clothes and the same

frame as the individual who went under the car"; that video from the outdoor surveillance

camera showed this same individual "go under somebody else's car"; and that thereafter

this individual just sat in his car for about 38 more minutes until Alex returned to his car.

6
 Jose Luis Perez testified he worked at a car dealership and assisted Alex with the

repair of the Cherokee. Perez recalled that the vehicle was towed to the dealership, that it

"replaced two brake lines that were — that were cut"; that even if the brake lines of this

particular vehicle model were cut, the vehicle would still start and the vehicle could be

driven; but that "stopping the vehicle would be an issue" because "[i]t will not brake."

When asked to explain his answer, Perez testified, "The hydraulics of it will not apply,

and the pressure to the brake rotors will not be there."

Perez testified that if the brake pedal went to the floorboard with no resistance, it

would be a "dead-given" that the brakes were not functioning properly. Perez further

testified the vehicle model driven by Alex also had a "cable-actuated emergency brake"

that is activated by a brake pedal on the floorboard that connects to the rear brakes of the

vehicle. Perez testified no repairs were made to the rear emergency brake of Alex's

vehicle. Perez also testified that, in a hypothetical situation, if the brake lines of Alex's

vehicle model were cut, there would "probably" be enough "pressure buildup on the

brake system" to allow the brake pedal to be depressed in order to start the car, unless

"every last bit of that fluid is drained out."

Detective Christopher Luce testified he was assigned to investigate the June 21

incident. He conducted a computer check of the license plate of the white van and found

the van was registered to an individual named Spencer Marsh. Next, he examined this

individual's driver's license photo and found it "closely resembled, by age, weight, and

height, the suspect as described by the victim in the initial [police] report"; that using this

information, he created a photographic lineup that was used to identify the individual as

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defendant; and that he also obtained video footage from a surveillance camera located in

the parking lot behind the fitness club. After reviewing that footage, Detective Luce saw

the individual exit the white van and go inside the club. Detective Luce contacted the

manager at the fitness club a second time and confirmed that an individual named

Spencer Marsh was a member of the club and that defendant had in fact checked in at the

club on the morning of the incident.

Detective Luce described what he saw on the video footage from the camera

overlooking the parking lot: "From the video, I — I saw a van parked in one of the stalls

right in the middle of the screen. There was a person that was sitting in it and — in the

driver seat, and he was occasionally getting out of the vehicle, walking around, and doing

odd things just around the vehicle. The victim's vehicle, a Jeep Cherokee, pulled up two

stalls down. And the victim, [Alex], exited his car, walked into the gym for a couple

minutes before coming back to his car to collect something else, like a gym bag or

something, and then he went back into the gym for approximately an hour.

"During that hour period where [Alex] was away from his car, I saw the person

that was sitting in the van, Mr. Marsh's van, get out of the driver seat. He walked around

. . . [Alex's] car a couple times. He stood between the two vehicles facing the direction of

the gym, and he kind of paced back and forth over about a ten-, fifteen-minute period.

The gentleman then went to his vehicle, went to the van, gathered what looked like a

blanket, and placed it under the . . . the front driver side tire of [Alex's] vehicle, laid down

on it, and seemed to be laying on his back and doing something underneath the vehicle.

The male then got up, went around to the front passenger side wheel, went behind that

8
wheel, laid the blanket down, and then did something under that side of the vehicle

before getting back up, going to his — the — back to the van and sitting in the van."

Detective Luce estimated that defendant sat in his van for about 35 or 40 more

minutes until Alex returned to his vehicle. Detective Luce noted when he initially

interviewed Alex as part of the investigation, Alex stated there had been no issue between

him and defendant before Alex went inside the club. Alex also told the detective that

after seeing the pool of fluid under this car, he got inside, turned the car to the "on"

position, and immediately saw the brake light from the dashboard illuminated, suggesting

there was a problem with the brakes. According to Detective Luce, Alex then pressed on

the brake pedal and found the pedal went "all the way to the floor[board]."

DISCUSSION

I

Assault with a Deadly Weapon

A. Additional Background

Here, the court instructed the jury as follows with a modified version of

CALCRIM No. 875: "The defendant is charged in Count 1 with assault with a deadly

weapon other than a firearm in violation of Penal Code section 245. [¶] 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;

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 "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.

"Someone commits an act willfully when he or she does it willingly or on purpose.

It is not required that he or she intend to break the law, hurt someone else, or gain any

advantage. [¶] The terms application of force and apply force mean to touch in a harmful

or offensive manner. The slightest touching can be enough if it is done in a rude or angry

way. Making contact with another person, including through his or her clothing, is

enough. The touching does not have to cause pain or injury of any kind. [¶] The touching

can be done indirectly by causing an object or someone else to touch the other person.

"The People are not required to prove that the defendant actually touched

someone. [¶] The People are not required to prove that the defendant actually intended to

use force against someone when he acted. [¶] No one needs to actually have been injured

by defendant's act. But if someone was injured, you may consider that fact, along with

all the other evidence, in deciding whether the defendant committed an assault.

"Great bodily injury means significant or substantial physical injury. It is an

injury that is greater than minor or moderate harm.

"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.

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 "Present ability means that, at the time of the act which by its nature would

probably and directly result in the application of physical force upon the person of

another, the perpetrator of the act must have the physical means to accomplish that result.

If there is this ability, present ability exists even if there is no injury. Present ability

refers to the ability of the person committing the unlawful assault and not to the external

circumstances beyond his or her control which might prevent injury and thus frustrate the

defendant's intent."

The court also instructed the jury that, if it was to find defendant guilty of assault

with a deadly weapon, it should then consider whether the prosecution had proved the

additional allegation that he used a deadly or dangerous weapon (i.e., a vehicle) in the

commission of the crime. In this context, the court instructed the jury under CALCRIM

No. 3145 in part as follows: "A deadly or dangerous weapon is any object, instrument,

or weapon that is inherently deadly or dangerous 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 deciding whether an object is a deadly weapon, consider all the surrounding

circumstances, including when and where the object was possessed, where the person

who possessed the object was going, and any other evidence that indicates whether the

object would be used for a dangerous, rather than a harmless, purpose."

As noted, defendant argues he did not commit an assault with a deadly weapon

within the meaning of sections 245, subdivision (a)(1) (245(a)(1)) and 1192.7,

subdivision (c)(23) (1192.7(c)(23)) because he did not "use" Alex's vehicle "in a manner

capable of producing and likely to produce death or great bodily injury." Specifically,

11
defendant argues that Alex's vehicle with the severed brake lines did not qualify as a

"deadly weapon" under sections 245(a)(1) and 1192.7(c)(23) because Alex fortunately

discovered the damage and never drove his vehicle—assuming it would even start—in

that condition.

B. Guiding Principles

In determining claims of insufficient evidence, we review the entire record in the

light most favorable to the prosecution "to determine whether it contains evidence that is

reasonable, credible, and of solid value, from which a rational trier of fact could find the

defendant guilty beyond a reasonable doubt." (People v. Silva (2001) 25 Cal.4th 345,

368.) "We do not resolve credibility issues or evidentiary conflicts. Instead, we presume

in support of the judgment the existence of every fact the jury could reasonably have

deduced from the evidence. (People v. Boyer (2006) 38 Cal.4th 412, 480.)" (People v.

Aznavoleh (2012) 210 Cal.App.4th 1181, 1186.) "The test is whether substantial

evidence supports the decision, not whether the evidence proves guilt beyond a

reasonable doubt. [Citations.]" (People v. Mincey (1992) 2 Cal.4th 408, 432.)

Section 245(a)(1) punishes assaults committed "with a deadly weapon or

instrument other than a firearm." 2 Whether or not the victim is injured is immaterial

because the statute focuses on use of a deadly weapon or instrument. (People v. Aguilar

2 Section 254(a)(1) provides in full: "Any person who commits an assault upon the
person of another with a deadly weapon or instrument other than a firearm shall be
punished by imprisonment in the state prison for two, three, or four years, or in a county
jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000),
or by both the fine and imprisonment."
12
(1997) 16 Cal.4th 1023, 1028 (Aguilar); see People v. Rocha (1971) 3 Cal.3d 893, 899

[noting that assault with a deadly weapon is a general intent crime and the "intent to

cause any particular injury [citation], to severely injure another, or to injure in the sense

of inflicting bodily harm is not necessary" (fns. omitted)].) A " 'deadly weapon' " within

the meaning of section 245(a)(1) 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.' " (Aguilar, at pp. 1028–1029.)

"[F]or an object to qualify as a deadly weapon based on how it was used, the

defendant must have used the object in a manner not only capable of producing but also

likely to produce death or great bodily injury." (In re B.M. (2018) 6 Cal.5th 528, 530

(B.M.).) "Analysis of whether the defendant's manner of using the object was likely to

produce death or great bodily injury necessarily calls for an assessment of potential harm

in light of the evidence. . . . . [A] mere possibility of serious injury is not enough. But

the evidence may show that serious injury was likely, even if it did not come to pass."

(Id. at p. 535.)

Whether an object is a deadly weapon is a question of fact. (People v. Moran

(1973) 33 Cal.App.3d 724, 730.) "In determining whether an object not inherently

deadly or dangerous is used as such, the trier of fact may consider the nature of the

object, the manner in which it is used, and all other facts relevant to the issue." (Aguilar,

supra, 16 Cal.4th at p. 1029.)

Our analysis on this issue is guided by our high court's recent decision of B.M.,

supra, 6 Cal.5th 528. There, 17-year-old B.M. found herself locked out of her family's

13
home. B.M. entered the home through a window and angrily confronted her sister Sophia

about why the locks had been changed. At some point, B.M. grabbed a "butter knife" 3

from the kitchen and went to Sophia's bedroom. When she saw B.M. approach with the

butter knife, Sophia covered herself with a blanket. From a distance of about three feet

B.M. made several downward slicing motions with the butter knife near Sophia's legs.

Although the butter knife hit Sophia's legs a few times, it did not pierce the blanket and

she suffered no injury. (Id. at p. 531.)

The juvenile court found that B.M.'s use of the butter knife violated section

245(a)(1), which finding was affirmed on appeal. In reversing, our high court determined

there was insufficient evidence to sustain the finding that the butter knife was used as a

deadly weapon. (B.M., supra, 6 Cal.5th at p. 530.) In so doing, the B.M. court

recognized that, for an "object to qualify as a deadly weapon based on how it was used,

the defendant must have used the object in a manner not only capable of producing but

also likely to produce death or great bodily injury. The extent of any damage done to the

object and the extent of any bodily injuries caused by the object are appropriate

considerations in the fact-specific inquiry required by section 245(a)(1). But speculation

without record support as to how the object could have been used or what injury might

have been inflicted if the object had been used differently is not appropriate." (B.M., at

p. 530.)

3 Both B.M. and Sophia described the knife, which was about six inches long with a
three-inch blade, a dull tip, and a slightly serrated edge, as a "butter knife." (B.M., supra,
6 Cal.5th at pp. 530–531.)
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 B.M. thus teaches that the "object alleged to be a deadly weapon must be used in a

manner that is not only 'capable of producing' but also ' "likely to produce death or great

bodily injury" ' " (B.M., supra, 6 Cal.5th at p. 533); that "likely" in this context "refers to

situations in which ' " 'the probability of serious injury is great' " ' " (ibid); that "[a]n

increase in likelihood from impossible to unlikely, for example, does not show that the

object was likely to cause serious harm" (id. at p. 534); and that the "use of an object in a

manner 'likely to produce' death or great bodily injury [citation] requires more than a

mere possibility that serious injury could have resulted from the way the object was used"

(ibid.).

B.M. also teaches that the "determination of whether an object is a deadly weapon

under section 245(a)(1) must rest on evidence of how the defendant actually 'used' the

object" rather than on conjecture as to how the object could have been used (B.M., supra,

6 Cal.5th at p. 534); and that, while a " 'conviction for assault with a deadly weapon does

not require proof of an injury or even physical contact' [citation]" (ibid), a "limited injury

or lack of injury may suggest that the nature of the object or the way it was used was not

capable of producing or likely to produce death or serious harm" (ibid.).

C. Analysis

We conclude a jury could reasonable conclude that defendant's willful act of

cutting the brake lines on Alex's vehicle was one that, by its nature, was not only

" 'capable of producing' but also 'likely to produce death or great bodily injury' " (see

B.M., supra, 6 Cal.5th at p. 533), inasmuch as driving a vehicle without the ability to stop

it creates a situation in which " ' " 'the probability of serious injury is great.' " ' " (Ibid.)

15
That Alex discovered the severed brake lines before he drove the vehicle, and thus was

not injured by defendant's act, is of no consequence for purposes of the offense of assault

with a deadly weapon. (See also People v. Williams (2001) 26 Cal.4th 779, 787

(Williams) [noting "assault criminalizes conduct based on what might have happened —

and not what actually happened"]; People v. White (2015) 241 Cal.App.4th 881, 884

[citing Williams in noting that an assault does not "require a specific intent to injure the

victims or a substantial certainty that an application of physical force will result"]; People

v. Craig (1991) 227 Cal.App.3d 644 (Craig) [finding the defendant was properly

convicted under (former) section 245(a)(1) of assault with a deadly weapon or by means

of force likely to produce great bodily injury as a result of his cutting the brake lines of

the victim's car, even though the victim, like Alex here, never started or drove the car

because she realized its brakes were not working properly]; People v. Valdez (1985) 175

Cal.App.3d 103, 108 [finding that shooting a firearm at a victim who is protected by

bulletproof glass constitutes assault with a deadly weapon].)

Defendant nonetheless argues that a vehicle with severed brake lines is not a

deadly weapon because he neither drove the car at Alex or, "more importantly, [he] did

not use the car as a deadly weapon." We disagree. That defendant did not control or

possess Alex's vehicle does not mean the vehicle was not a dangerous weapon under

section 245(a)(1). The case of People v. Russell (2005) 129 Cal.App.4th 776 (Russell)

informs our analysis on this issue.

In Russell, the court decided an issue of first impression when it ruled that a

defendant who willfully pushed another person into the path of an oncoming vehicle had

16
"used" that vehicle as a deadly weapon for purposes of (former) section 245(a)(1).

(Russell, supra, 129 Cal.App.4th at p. 778.) The defendant in Russell argued he did not

" 'use' the oncoming car as an instrument to cause great bodily injury to the victim

because he did not have any control or operational use of the car at the time of the

incident." (Id. at p. 782.)

In rejecting this argument, the Russell court declined to "distinguish between the

actions of one who, while driving or controlling a car, intentionally runs down a victim,

and one who opportunistically utilizes, for the purpose of injuring a victim, the force of a

moving car driven by an unwitting third party." (Russell, supra, 129 Cal.App.4th at p.

782.) The court analyzed the issue in part as follows:

"Several jurisdictions have addressed the issue of whether a defendant can be

charged for assault with a deadly weapon when the defendant did not possess or control

the instrumentality at the time of the assault. Often this situation arises when a defendant

intentionally strikes a part of the victim's body against a stationary object such as a wall

or building fixture, or when an assailant adds to his human strength by utilizing the force

of another object. We find these cases helpful because they involve an assailant

intentionally 'taking advantage' of an object's intrinsic qualities in a way likely to cause

the victim great bodily harm, but without taking possession or control of that object."

(Russell, supra, 129 Cal.App.4th at pp. 782–783.)

After reviewing several cases in which a defendant had "used" an instrumentality

to commit offenses despite the fact such instrumentalities were not under the defendants'

direct control, the Russell court stated, "We agree with the above rulings, and fail to see a

17
relevant difference between one who wields a dangerous object and one who

intentionally utilizes the deadly properties of a stationary or moving object for purposes

of committing an assault under [former] section [245(a)(1)]." (Russell, supra, 129

Cal.App.4th at p. 785.) The court thus went on to find that pushing a victim into the path

of an oncoming motor vehicle represented the " 'use' of a deadly weapon" (ibid), noting

an "automobile weighing several thousand pounds and underway on a street is capable of

seriously injuring and often killing any person it strikes." (Ibid.)

Similarly, defendant in the instant case "used" Alex's own vehicle as a deadly

weapon when defendant purposely severed both of its brake lines. Like the Russell court,

we decline to distinguish between one who controls or drives a vehicle in such a manner

that the vehicle constitutes a deadly weapon for purposes of section 245(a)(1), and one

who "intentionally utilizes" a vehicle's potential deadly properties in a way likely to cause

the victim great bodily harm, despite not taking possession or control of the vehicle him-

or herself. (See Russell, supra, 129 Cal.App.4th at pp. 782–785.) Clearly, a moving

vehicle weighing "several thousand pounds and underway on a street" (id., at p. 785),

which is unable to stop because of an intentional act caused by a defendant, constitutes a

"deadly weapon" within the meaning of sections 245(a)(1) and 1192.7(c)(23) that is "

' "likely to produce death or great bodily injury" ' " to the driver. (See B.M., supra, 6

Cal.5th at p. 533.)

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 II

Instructional Error

Defendant next contends his conviction for assault with a deadly weapon must be

reversed because CALCRIM No. 875 and/or CALCRIM No. 3145 included two

alternatives for establishing a deadly weapon. Specifically, he contends that it was

reversible error for the court in this case to include in these instructions that a "deadly

weapon other than a firearm" could be an object that is "inherently deadly," as opposed to

one that "is used in such a way that it is capable of causing [and] likely to cause death or

great bodily injury," because it provided jurors with two legal theories, one of which was

valid (the latter) and one of which was not (the former).

We review an assertion of instructional error de novo. (People v. Hernandez

(2013) 217 Cal.App.4th 559, 568.) Unlike our respected colleague, we conclude that a

vehicle with severed break lines, such as Alex's Cherokee in the instant case, is not an

inherently deadly weapon; thus, while the court's instructions were correct statements of

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

inclusion of reference to an inherently deadly weapon was error. At issue is whether the

error is legal in nature or factual in nature and what prejudice standard applies.

An instruction contains a legal error if it includes an incorrect statement of law; a

factual error exists if an otherwise valid legal theory is not supported by the facts or

evidence in a case. (People v. Guiton (1993) 4 Cal.4th 1116, 1125.) An object may be

either inherently deadly or deadly as used. (Velasquez, supra, 211 Cal.App.4th at p.

1176.) Some objects, like dirks and blackjacks, have been found inherently deadly as a

19
matter of law. (Aguilar, supra, 16 Cal.4th at p. 1029.) Other objects, like knives and box

cutters, have been found not inherently dangerous as a matter of law. (People v. Kersey

(1957) 154 Cal.App.2d 364, 366 [knives]; People v. McCoy (1944) 25 Cal.2d 177, 188

[box cutters] (McCoy).) Because a motor vehicle is an object "commonly used for a

nonviolent purpose" (see People v. King (2006) 38 Cal.4th 617, 624) that could qualify as

dangerous when the surrounding circumstances indicate the possessor "used" it in such a

manner that it was likely to cause death or great bodily injury (B.M., supra, 6 Cal.5th at

p. 533), it did not qualify as inherently deadly weapon. (See People v. Perez (2018) 4

Cal.5th 1055, 1065.) Thus, the inclusion of both alternatives was legal, not factual, error.

(See, e.g., People v. Stutelberg (2018) 29 Cal.App.5th 314, 318 (Stutelberg); People v.

Aledamat (2018) 20 Cal.App.5th 1149, 1154, review granted Jul. 5, 2018, S248105

(Aledamat).) 4

Although the portion of the jury instructions referencing inherently deadly objects

was erroneous, we conclude that error was not prejudicial under the circumstances of the

instant case. In so finding, we decline defendant's invitation to adopt the standard for

harmlessness employed in Aledamat, which requires reversal when "there is no basis in

the record for concluding that the jury relied on the alternative definition of 'deadly

4 Our high court granted review in Aledamat to address the standard for evaluating
prejudice resulting from a legal error. While we agree with Aledamat that this type of
error is legal in nature, as noted, we disagree on the appropriate standard for prejudice,
and we cite Aledamat solely for its persuasive value. (Cal. Rules of Court, rule
8.1115(e)(1).)
20
weapon' (that is, the definition looking to how a noninherently dangerous weapon was

actually used)." (Aledamat, supra, 20 Cal.App.5th at p. 1154, rev. granted.)

Our high court recently found that an error in instructions on the elements of a

crime is harmless "so long as the error does not vitiate all of the jury's findings" (People

v. Merritt (2017) 2 Cal.5th 819, 829, 831), meaning it would be harmless error if it were

"clear beyond a reasonable doubt that a rational jury would have rendered the same

verdict absent the error." (Ibid.) It also found that offering an instruction on an invalid

legal theory may be harmless when " 'other aspects of the verdict or the evidence leave no

reasonable doubt that the jury made findings necessary' " to convict the defendant under

the alternative, valid legal theory. (In re Martinez (2017) 3 Cal.5th 1216, 1226, quoting

People v. Chun (2009) 45 Cal.4th 1172, 1205.) Thus, "we apply the Chapman [v.

California (1967) 386 U.S. 18 (Chapman)] standard to evaluate an instruction that

improperly defines an element of a charged offense." (Stutelberg, supra, 29 Cal.App.5th

at p. 319; Chapman, at p. 24.) Under that standard, an instructional error must result in

reversal unless it appears beyond a reasonable doubt that the error did not contribute to

the verdict. (Stutelberg, at p. 319.)

Turning to the instant case, we have carefully reviewed the record including the

closing arguments of counsel. It shows the prosecutor only presented the theory that

Alex's vehicle was a deadly weapon due to its manner of "use," namely defendant's

21
intentional act of severing the vehicle's brake lines. 5 Because we have concluded that a

motor vehicle that has had its brake lines severed qualifies as a "deadly weapon other

than a firearm"; and because neither the evidence nor the prosecutor's argument invited

the jury to reach a guilty verdict on the theory that the motor vehicle, in that condition,

was inherently dangerous, we conclude it is clear beyond a reasonable doubt that the jury

would have reached the same verdict absent the legal error. (See Chapman, supra, 386

U.S. at p. 24.) 6

III

Counsel's Alleged Concession of Guilt on Count 2

Finally, defendant contends his conviction on count 2 must be reversed because

his counsel's concession at the beginning of closing argument that defendant was guilty

of this vandalism charge was tantamount to a guilty plea on that count. In support of this

contention, defendant relies almost exclusively on People v. Lopez (2018) 28 Cal.App.5th

758 (Lopez I). Following briefing in the instant case, the court vacated Lopez I, after

granting the respondent's petition for rehearing and after receiving additional briefing on

the issue and found on "reexamination of this issue . . . defense counsel's statements

5 In stark contrast to the instant case, in Aledamat the prosecutor argued the weapon,
a box cutter, was both inherently dangerous, contrary to case law (see McCoy, supra, 25
Cal.2d at p. 188), and deadly because it was used in a way capable of and likely to cause
great bodily injury. (Aledamat, supra, 20 Cal.App.5th at p. 1152, rev. granted.)

6 In light of our decision, we deem it unnecessary to reach the People's alternate
contention that defendant on appeal forfeited this claim of error by failing to request a
pinpoint instruction on the "proper legal characterization of the vehicle or to define the
phrase 'inherently deadly.' "
22
during argument were not tantamount to a guilty plea." (See People v. Lopez (2019) 31

Cal.App.5th 55, 58 (Lopez II).

As correctly noted by the Lopez II court (31 Cal.App.5th at p. 63), our high court

has rejected the nearly identical argument the defendant made in Lopez I and our

defendant makes in the instant case—that a partial concession of guilt was the equivalent

of a guilty plea. (See People v. Cain (1995) 10 Cal.4th 1, 39 (Cain), overruled on another

ground as stated in People v. Moon (2005) 37 Cal.4th 1, 17.)

Lopez II discussed the issue as follows: "In Cain, defense counsel told the jury

during argument that the defendant was guilty of burglary and multiple felony murder.

([Cain, supra, 10 Cal.4th] at pp. 29–30.) On appeal, the defendant argued that these

statements were the equivalent of a guilty plea on those charges, and therefore that the

trial court was required to obtain a plea waiver. (Id. at p. 30.) The court rejected this

argument, holding that 'trial counsel's decision not to contest, and even expressly to

concede, guilt on one or more charges at the guilt phase of a capital trial is not

tantamount to a guilty plea.' (Ibid.) The Supreme Court has reiterated this holding in

numerous cases. [Citations.]" (Lopez II, supra, 31 Cal.App.5th at pp. 63–64 7; compare

People v. Farwell (2018) 5 Cal.5th 295, 299 [noting a stipulation of the parties entered

into during the defendant's trial, in which the defendant admitted all the elements of a

misdemeanor charge for driving with a suspended license while still facing the more

7 Although noting these supreme court cases were capital cases, the Lopez II court
found "no basis to limit the holding to capital cases, nor has appellant suggested any."
(Lopez II, supra, 31 Cal.App.5th at p. 64, fn. 7.)
23
serious gross vehicular manslaughter charge, was invalid to establish guilt on the

misdemeanor because the court neither advised the defendant of the constitutional rights

implicated by the stipulation nor sought a "personal waiver" of such rights from the

defendant].)

Here, as was the case in Lopez II, there was no stipulation admitting the elements

of count 2 "as an evidentiary matter. Instead, the jury was instructed that the prosecution

had to prove guilt on all counts beyond a reasonable doubt and that statements by counsel

were not evidence. Thus, the prosecution was still required to present 'competent,

admissible evidence establishing the essential elements' of each charge. (Florida v.

Nixon (2004) 543 U.S. 175, 188.)." (Lopez II, supra, 31 Cal.App.5th at p. 64.) Thus,

defense counsel's alleged concession of guilt on count 2 did not change the prosecutor's

burden of proof, or otherwise "limit the scope of the jury's role" in the instant case. (See

ibid.)

DISPOSITION

The judgment is affirmed.

BENKE, Acting P. J.

I CONCUR:

NARES, J.

24
Aaron, J., Concurring.

Marsh intentionally severed the brake lines of the intended victim's vehicle, with

the apparent intention that the victim drive the vehicle in that condition. Marsh contends

that there is insufficient evidence to support his conviction for assault with a deadly

weapon because there is no substantial evidence that he used the vehicle in a manner

likely to produce great bodily injury, and that the trial court erred in instructing the jury

on the meaning of the phrase "deadly weapon" by telling the jury that a "deadly weapon

other than a firearm" could be an object that is "inherently deadly" (as opposed to one

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

bodily injury"). The majority concludes that there is sufficient evidence to support

Marsh's conviction for assault with a deadly weapon because, as in People v. Russell

(2005) 129 Cal.App.4th 776, in which the defendant pushed another person into the path

of an oncoming vehicle, Marsh used the victim's vehicle as a deadly weapon. The

majority further concludes that because vehicles are not inherently deadly, the trial court

erred in instructing the jury that a "deadly weapon" could be an object that is "inherently

deadly," but deems this instructional error harmless.

I would conclude instead that an automobile that has had its brake lines severed

constitutes an inherently deadly weapon and, on that basis, I would reject Marsh's

contentions on appeal. 1

1 I specifically disagree with the majority's rejection of the standard of harmlessness
set forth in People v. Aledamat (2018) 20 Cal.App.5th 1149, 1154, review granted July 5,
2018, S248105, which requires reversal when "there is no basis in the record for
 I therefore concur in parts I and III of the majority opinion, and I concur in the

result in part II.

AARON, J.

concluding that the jury relied on the alternative definition of 'deadly weapon' (that is, the
definition looking to how a noninherently dangerous weapon was actually used)."
However, that standard would have no application in a situation in which, because of its
condition, the vehicle was inherently dangerous.
2