People v. Hasan CA2/4

Filed 3/22/21 P. v. Hasan CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR

THE PEOPLE, B302681

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA466399)
v.

JIBRAIL ABDULRAHM HASAN,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of
Los Angeles County, David V. Herriford, Judge. Remanded in
part and affirmed in part.
Nilou Panahpour, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Paul M. Roadarmel, Jr. and Michael Katz,
Deputy Attorneys General, for Plaintiff and Respondent.
 Defendant Jibrail Abdulrahm Hasan appeals from his
conviction for assault with a deadly weapon and assault by force
likely to produce great bodily injury, both stemming from an
incident with his former girlfriend. He contends the court erred
by failing to give requested jury instructions regarding self-
defense. He also argues that the jury was improperly instructed
that it could find appellant guilty of using a deadly weapon under
the theory that a knife is inherently deadly. Finally, he notes
that the trial court failed to make an oral pronouncement of the
sentence on count two, an error that respondent Attorney
General concedes requires remand. We conclude that appellant
has not established any prejudicial error with respect to the jury
instructions. We therefore affirm the convictions and remand for
resentencing on count two.
PROCEDURAL HISTORY
On May 2, 2018, appellant was charged by information
with one felony count of assault with a deadly weapon against his
ex-girlfriend, Makaila (Pen. Code, § 245, subd. (a)(1)).1 The
information further alleged defendant suffered two prior strike
convictions (§§ 667, subds. (b)-(j), 1170.12, subds. (a)-(d)) and one
prior serious felony conviction (§ 667, subd. (a)(1)). An amended
information filed on December 20, 2018 added a second count of
assault by means of force likely to produce great bodily injury
(§ 245, subd. (a)(4)), based on the same incident with Makaila.
Jury trial began on December 20, 2018. On January 14,
2019, the jury found appellant guilty on both counts. The court
held a bifurcated bench trial on the prior conviction allegations

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

2
and found those allegations to be true.
The court denied appellant’s motion for a new trial. The
court granted appellant’s Romero motion in part, striking one of
the prior strike convictions. The court sentenced defendant to a
total of 13 years in state prison, consisting of the upper term of
four years on count one, doubled based on the prior strike
(§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(j)), plus five years for
the prior felony conviction (§ 667, subd. (a)(1)). The court
imposed and stayed the sentence on count two pursuant to
section 654.2 Appellant timely appealed.
FACTUAL BACKGROUND
I. Prosecution Evidence
A. Makaila’s testimony
Makaila testified under subpoena. She dated appellant for
about three years and gave birth to their son on March 2, 2018,
when she was 20 years old. Makaila testified that she and
appellant broke up shortly before their son was born. At the time
of the incident on March 6, 2018, the baby was still in the
neonatal intensive care unit and Makaila had been released from
the hospital two days earlier. Makaila lived with appellant on
and off in his residence, located in the back of his tattoo shop.
The front of the building contained appellant’s tattoo business,
and the space behind that held appellant’s office and a living
area, which included a kitchen, living room, and bedrooms.
On March 6, 2018, around 7:30 p.m., Makaila went to

2As we detail further in Discussion Section III, the court
did not announce a sentence for count two on the record.
However, the minute order reflects that the court sentenced
appellant on count two, and stayed the sentence.

3
appellant’s tattoo shop to ask him for money to buy things for the
baby. Her mother, Lisa, drove her there; they were planning to
go to the hospital afterward to visit the baby. Makaila went into
the business and her mother waited outside in the car. Makaila
testified that appellant’s father, sister, and some employees were
in the tattoo shop. She found appellant toward the back of the
residence in the living room area. When she asked him for
money, he said he “didn’t have it anymore.” They started arguing
and Makaila testified that she yelled at him “what happened to
the money?” She started crying and told appellant if he was not
going to help, then she would take the baby’s things and leave.
According to Makaila, she then moved to the bedroom to
pack up some items. Appellant yelled at her that she was not
taking the baby’s things and started grabbing things out of her
hands. He continued to grab things from her as she tried to leave
the room. She testified that “the argument started to get more
serious when I made a comment and said that if he kept acting
like this then he wasn’t going to see” his son. Makaila stated
that appellant got angrier and was “in my face yelling, like,
telling me that I wasn’t going to take him anywhere.”
When Makaila tried to leave, appellant pushed her and she
pushed him back. She testified that appellant was “pushing me
and I was socking him,” hitting him on his chest. She started to
get scared because she could see he was getting angrier after she
told him he could not see the baby. After she hit him twice,
appellant pushed her backward onto the bed. He got on top of
her on the bed with his knee on her stomach. It “hurt a lot”
because she had just had the baby a few days before. She
continued to hit him as he pinned her down. Finally Amber, the
mother of another of appellant’s children, pulled appellant off

4
Makaila and told them both to stop. Makaila got up and she and
appellant continued to argue, with Amber between them.
Makaila testified that after they got off the bed, appellant
left the room and Amber told her to leave, so Makaila started to
walk back toward the front entrance. As she was leaving,
appellant began to follow her. She heard the door open, turned,
and saw him coming up behind her, holding a knife. Then
appellant pinned her against a wall with his left hand on her
neck, squeezing and choking her. Makaila testified that
appellant was holding a large kitchen knife in his right hand.
She stated that appellant was holding the blade of the knife to
her neck. She was not sure exactly how close the knife was to her
neck, just that “he had it up to my neck” but she couldn’t feel it
touching her. He was repeating that she was not going to “take
his child away from him.” Appellant also said “watch what’s
going to happen if you take the baby from me.”
After that, Makaila saw Lisa come to the gated entrance of
the shop. Lisa kicked the door and yelled for appellant to “get off
of her.” Appellant looked at Lisa, immediately put the knife
down to his side, and let Makaila go.3 Makaila then left the shop.
Lisa asked Makaila if she was ok, then called the police. Makaila
did not suffer any injuries, but her stomach hurt until the next
morning.
Officers from the Los Angeles Police Department (LAPD)
arrived about five minutes later. Makaila testified that she
spoke to police officers several times that night. She initially

3The parties stipulated that Makaila stated for the first
time at trial that when Lisa kicked the gate, appellant had a
surprised look and lowered the knife.

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spoke with responding LAPD officer Julio Aguilar and his
partner, as well as two emergency medical technicians (EMTs),
who examined her for injuries. Makaila spoke again with the
police officers when they escorted her into the tattoo shop to
gather her things. After leaving the scene to visit the baby at the
hospital, Makaila recalled speaking with someone who called her
mother’s phone, but she was not sure to whom she spoke.
Makaila also spoke to LAPD detective Robert Smey about a
week after the incident. She said she did not know if she should
tell the detective what happened because she was concerned
about getting appellant in trouble.
Makaila testified that appellant called her to apologize the
day after the incident. He said that he felt badly and “it wouldn’t
happen again.” After his arrest the following week, appellant
called her from jail up to 40 times and they also wrote letters to
each other. The calls made by appellant from jail were recorded,
and the prosecution played clips from some of the calls for the
jury. 4 During these calls, appellant told Makaila several times
that the only way to beat his case was if no one showed up to
court. He made it clear to Makaila that he did not want her to
testify against him and suggested ways to avoid getting served
with a subpoena. Appellant also told her that if she did testify,
she should not say anything or should claim she did not
remember.
B. Lisa’s testimony
Lisa testified that she drove Makaila to appellant’s tattoo
shop on March 6, on their way to the hospital. Lisa waited in the

4At least some of these calls violated a protective order
issued on March 19, 2018.

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car, but grew concerned after Makaila was inside the shop for
about fifteen minutes, so she walked to the front of the shop to
see what was going on. Lisa testified that she could not get
inside because the gate at the front of the shop was locked.
As she looked in the front window, Lisa saw appellant
standing close to Makaila against a wall inside the shop. Later
in her testimony, she stated that she first saw appellant dragging
Makaila from the back room and “[t]hey were entwined.” She
stated that appellant was being “very aggressive” and had his left
hand around her neck. Makaila was “pressed against” the wall.
When asked if she saw what appellant was doing with his right
hand, she said “It was on her. It was – whatever – . . . [¶] It
wasn’t in the air. It was a part of what was going on.” Lisa
testified, consistent with her prior statements, that she did not
see appellant holding a weapon. She said she felt that appellant
was hurting Makaila and so she “just started yelling” and kicking
the gate. Once she did, appellant immediately turned to look at
her and put his hands down. Makaila came out of the shop
crying and looking upset.
The prosecution played Lisa’s 911 call for the jury. In the
call, Lisa told the operator that appellant “picked [Makaila] up by
her neck” and started “choking her.” When asked if she needed a
paramedic, Lisa said “yes” because Makaila was “hurting, she’s
crying. He grabbed her by the neck.” Lisa reported that she did
not see any weapons, but that appellant was “choking [Makaila]
and hitting her.” After the operator directed Lisa to ask Makaila
about weapons, Lisa responded that the assailant “had a knife.”
At trial, Lisa confirmed that this was the moment she learned
from Makaila that there was a knife involved.

7
 Lisa testified that before trial, people had been calling her
attempting to dissuade her and Makaila from testifying against
appellant. Appellant also called Lisa “a lot” from jail after his
arrest.
During cross-examination, Lisa acknowledged that she had
testified at the preliminary hearing that appellant did not hit or
choke Makaila and it was “a big argument.” She also testified at
the preliminary hearing, contrary to her trial testimony, that she
saw Makaila and appellant come out of the back room together,
she did not see appellant come from behind or dragging Makaila,
and that Makaila was “fighting back.” Lisa also admitted that
she, Makaila, and appellant were together at the hospital with
the baby the next day.
C. Investigation
Officer Aguilar testified that he responded to the incident
with his partner around 7:45 p.m. on March 6, 2018. When they
arrived, he spoke to Lisa, who seemed anxious and concerned
about Makaila. They also saw appellant standing inside the door
of the shop. Makaila was sitting down outside, crying, and
seemed “fragile, nervous, agitated, and scared.”
Officer Aguilar’s interviews at the scene with Makaila and
Lisa were captured on his body worn video camera. Both parties
played excerpts of the video for the jury. The video showed Lisa
telling officer Aguilar that she saw appellant hitting Makaila and
choking her against a wall. Makaila told officer Aguilar that as
she was leaving the shop, appellant “got a knife and he was just
choking me against the wall.” When asked for further details,
she said that appellant had one hand holding a kitchen knife and
“one hand on my throat.” She said that appellant got the knife
“while I was running out. He came and got me.” Officer Aguilar

8
asked what appellant did with the knife while he was choking
her and whether he put it on her neck. Makaila responded: “He
put it against the wall by my face when he was holding me.”
When Makaila said appellant had a knife by her face by the wall,
she demonstrated with her right hand by her face, above her
head. Makaila also told police that her stomach hurt from
earlier, when appellant had his knee on her stomach and was
holding her down on the bed.
The video footage also showed a discussion between officer
Aguilar and the EMT who had spoken with Makaila. The EMT
reported that Makaila had no obvious bruising on her neck or
bleeding and did not want to be transported to the hospital. The
EMT also said that Makaila told him appellant punched her in
the face, but she did not say anything about a knife. Officer
Aguilar responded that he would speak with Makaila again.
Officer Aguilar and the EMT then confirmed with Makaila that
appellant choked her, and pulled out a knife, but did not stab her
with it. At trial, Makaila testified several times that she told the
officers that appellant “had me against the wall with the knife to
my neck.” However, she contended that the knife was not up by
her face and she did not recall telling the officers that. She also
confirmed that appellant punched her in the face.
In total, officer Aguilar testified that he spoke to Lisa and
Makaila between three and four times at the scene, trying to
“verify and confirm as much as I could of the events and exactly
how they had happened.” During one of the later interviews,
Makaila again gestured to show him how appellant had the knife.
She showed appellant’s left hand on her throat and his right
hand raised holding the knife.

9
 Officer Aguilar also spoke to appellant, who was standing
inside the locked front gate of his shop. Appellant refused the
officer’s request to unlock the door and to come outside. Appellant
then disappeared into the back of the shop. Sometime later, the
officers were able to get inside when someone else came out. The
officers searched the business but did not find appellant. Officer
Aguilar testified that he did not notice it at the time, but when he
later reviewed his body worn camera footage, he saw a knife on
the kitchen floor.
Officer Aguilar testified that he called Lisa and Makaila
twice later that night after he returned to the station, to provide
Makaila information about an emergency protective order (which
she declined) and a victim advocate. He also had some follow-up
questions about the incident and was trying to clarify what
appellant was “actually doing with the knife and if [Makaila]
remembers it.” Officer Aguilar acknowledged that he did not
document that he made these phone calls in his police report, but
that his report was a summary of all of his interviews, including
those at the scene and by phone.5 He noted that his report
erroneously stated that Lisa saw appellant with the knife in his
hand, but testified that the prosecutor told him she was going to
correct the error.
Detective Smey, the lead investigating officer on the case,
also interviewed Lisa and Makaila. When he spoke with Lisa
over the phone the day after the incident, she told him she saw
appellant dragging Makaila forward toward the front of the store.

The parties stipulated that Officer Aguilar told the
5

prosecutor about the phone calls to Makaila and Lisa for the first
time on January 3, 2019.

10
Appellant then pushed Makaila against the wall, and with one
hand grabbed her by the neck and pinned her against the wall.
She saw one of appellant’s hands on Makaila’s neck and the other
hand was up by her face, but did not see a knife. Detective Smey
spoke with Makaila in person on March 15, 2018. He testified
that she seemed reluctant to speak to him. According to detective
Smey, Makaila confirmed that appellant had pushed her, choked
her, and held a knife to her face. She said appellant came up
behind her as she was walking to the front, dragged her to the
front room and then pushed her up against the wall. Detective
Smey recounted that Makaila also said that appellant put a knee
up against her stomach and grabbed her neck with one hand.
Then she said that appellant pulled out a knife, brought the knife
“up towards her over her head with the knife pointed down, and
that he pulled it up and lowered it and held it in front of her
face.”
Makaila testified that she told the truth when she reported
to detective Smey that appellant squeezed her throat until she
felt pain and had difficulty breathing, although she had denied
throat pain or difficulty breathing in her original statements at
the scene. She also confirmed that she told detective Smey that
appellant had the knife raised over her head with the blade
pointing down at her. She claimed she did not remember if that
statement was the truth, but that she “wouldn’t make anything
up.” Similarly, she confirmed telling detective Smey that
appellant suddenly brought the knife downward toward her face,
and she did not remember if that was the truth, but “wouldn’t
lie.” She also told detective Smey that appellant suspended the
knife above her face in a threatening way. However, Makaila
denied saying that appellant brought the knife up and down in a

11
slashing motion. She estimated that the knife was 11 inches
long.
Appellant was arrested at his tattoo shop on March 15,
2018. When LAPD officers arrived, appellant was standing
outside, but he ran inside and locked the door. When the officers
entered pursuant to search and arrest warrants, they found
appellant hiding in a bedroom covered with clothes and blankets.
II. Defense Evidence
Appellant called two of his sisters as witnesses, both of
whom were in the tattoo shop at the time of the incident.
Maryam testified that she was watching TV in the front of the
shop that evening when she heard Makaila yelling from one of
the back rooms. The shop was open for business at the time and
there were several other people in the shop. Maryam walked
back and saw Makaila in a bedroom, yelling at appellant, who
was in his office. Appellant asked Makaila to leave. Then,
appellant walked away and Makaila followed him to the front of
the building, still yelling and “cussing at him.” After that, there
“continued to be a lot of yelling,” and employees and other people
in the shop began asking Makaila to leave. Maryam testified
that Makaila attempted to punch appellant, but he avoided it.
She did not see Makaila make any physical contact with
appellant. Makaila was “yelling about some clothes and saying
some very negative things” to appellant, including, “I’m going to
get somebody to F you up.” Maryam stated that Makaila
continued yelling for about five minutes, and then Makaila left
the shop. According to Maryam, appellant never grabbed
Makaila by the neck, was not holding a knife, and did not harm
Makaila during the incident.

12
 Jalilla, another of appellant’s sisters, testified that she was
in the shop at the time and noticed Makaila when Makaila
started yelling about the baby’s clothing. Jalilla stated that she
saw Makaila and appellant in the doorway near the office. When
Makaila started hitting appellant, he put his arms up defensively
to block the blows. Appellant yelled at Makaila to stop and to
leave. Finally, Jalilla testified that someone else walked up and
told Makaila: “‘You need to just leave. You guys are doing too
much right now, there’s customers in the shop.’” Then the other
person “kind of like wrapped her arm around [Makaila] and
walked her out the door.” Jalilla did not see appellant put his
hands on Makaila’s neck and did not see him holding a knife.
Some of Jalilla’s testimony at trial was impeached by the
defense investigator, called by the prosecution in rebuttal. The
investigator testified that he spoke with Jalilla a few months
after the incident, and she told him that appellant guided
Makaila out by “walking very close to her and directing her
towards the door.”
DISCUSSION
I. Self-Defense Instructions
Appellant contends the trial court erred in omitting the
element regarding self-defense in the simple assault instruction
(CALCRIM No. 915). He also argues that substantial evidence of
self-defense required the court to give the general self-defense
instruction, CALCRIM No. 3470, and the instruction regarding
mutual combat, CALCRIM No. 3471. We conclude that there
6

6CALCRIM No. 3470 provides, in pertinent part, “The
defendant is not guilty of [the charged crimes] if [he] used force
against the other person in lawful [self-defense]. The defendant

13
was insufficient evidence to support a self-defense instruction
and thus there was no error.
A. Background
The trial court instructed the jury with CALCRIM No. 875
on the elements of assault with a deadly weapon (for count one)
or by means of force likely to produce great bodily injury (for
count two).7 The court also instructed on the lesser included
offense of simple assault (CALCRIM No. 915), but omitted the
element to be given when instructing on self-defense, which
required the prosecutor to prove that “[t]he defendant did not act
(in self-defense).”
Defense counsel requested that the court include the self-

acted in lawful [self-defense] if: [¶] 1. The defendant reasonably
believed that [he] was in imminent danger of suffering bodily
injury (or was in imminent danger of being touched unlawfully);
[¶] 2. The defendant reasonably believed that the immediate use
of force was necessary to defend against that danger; [¶] AND [¶]
3. The defendant used no more force than was reasonably
necessary to defend against that danger.” CALCRIM No. 3471
states: “A person who (engages in mutual combat/ [or who] starts
a fight) has a right to self-defense only if: [¶] 1. [He] actually and
in good faith tried to stop fighting; [¶] [AND] [¶] 2. [He] indicated,
by word or by conduct, to [his] opponent, in a way that a
reasonable person would understand, that [he] wanted to stop
fighting and that [he] had stopped fighting(;/.) [¶] [AND] [in cases
of mutual combat] [¶] 3. [He] gave [his] opponent a chance to stop
fighting.] [¶] If the defendant meets these requirements, [he]
then had a right to self-defense if the opponent continued to
fight.”
7As the prosecutor explained during her closing argument,

both counts were based on appellant’s conduct when he grabbed
her neck, pinned her to the wall, and held up the knife.

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defense element of CALCRIM No. 915, arguing that a self-
defense instruction was warranted given the testimony of the
defense witnesses “regarding Makaila assaulting and/or
attempting to assault Mr. Hasan at various times during the
incident.” The court denied the request, stating: “Basically both
[defense] witnesses testified that your client didn’t do anything.
So if it’s not a self-defense situation, it either happened or it
didn’t happen.” Defense counsel renewed his request after the
close of evidence, arguing that “Jalilla’s testimony . . . included
mention of the defendant defending himself.” The court again
denied the request.
B. Legal framework
“It is well settled that a defendant has a right to have the
trial court, on its own initiative, give a jury instruction on any
affirmative defense for which the record contains substantial
evidence [citation]—evidence sufficient for a reasonable jury to
find in favor of the defendant [citation]—unless the defense is
inconsistent with the defendant’s theory of the case.” (People v.
Salas (2006) 37 Cal.4th 967, 982.) “‘[A] trial judge must only give
those instructions which are supported by substantial evidence,’
and ‘has the authority to refuse requested instructions on a
defense theory for which there is no supporting evidence.’”
(People v. Larsen (2012) 205 Cal.App.4th 810, 823; see also People
v. Nguyen (2015) 61 Cal.4th 1015, 1048–1049 [“‘[J]ust as with
perfect self-defense or any defense, “[a] trial court need give a
requested instruction concerning a defense only if there is
substantial evidence to support the defense.”’”].)
In this context, substantial evidence to support a defense
instruction is “evidence sufficient to ‘deserve consideration by the
jury,’ not ‘whenever any evidence is presented, no matter how

15
weak.’” (People v. Williams (1992) 4 Cal.4th 354, 361, italics
omitted; People v. Lewis (2001) 26 Cal.4th 334, 369.) “In
determining whether the evidence is sufficient to warrant a jury
instruction, the trial court does not determine the credibility of
the defense evidence, but only whether ‘there was evidence
which, if believed by the jury, was sufficient to raise a reasonable
doubt.’” (People v. Salas, supra, 37 Cal.4th at pp. 982-983.)
“‘“‘“The fact that the evidence may not be of a character to inspire
belief does not authorize the refusal of an instruction based
thereon.”’” [Citation.] As an obvious corollary, if the evidence is
minimal and insubstantial the court need not instruct on its
effects.’” (People v. Larsen, supra, 205 Cal.App.4th at pp. 823–
824.) The court is not obliged to instruct on theories that have no
evidentiary support. (Id. at p. 824.)
On appeal, we review de novo whether the trial court had
an obligation to give the requested instructions. (See People v.
Guiuan (1998) 18 Cal.4th 558, 569; People v. Sinclair (1998) 64
Cal.App.4th 1012, 1017.)
C. Analysis
“‘To justify an act of self-defense . . ., the defendant must
have an honest and reasonable belief that bodily injury is about
to be inflicted on him.’ The threat of bodily injury must be
imminent, and ‘... any right of self-defense is limited to the use of
such force as is reasonable under the circumstances.’” (People v.
Minifie (1996) 13 Cal.4th 1055, 1064–1065.) Appellant contends
there was substantial evidence supporting the conclusion that he
engaged in self-defense, citing evidence “from at least four
witnesses to the incident,” Makaila, Lisa, Maryam, and Jalilla,
that Makaila and appellant “were engaged in a physical fight and
that she ‘socked’” appellant. We disagree. Appellant

16
inaccurately summarizes the evidence at trial and focuses largely
on evidence of the first incident between the parties in the
bedroom, which was not the basis of the charged offenses.
Rather, both charges were based on the second incident in
the tattoo shop in which appellant pinned Makaila to the wall by
her throat. We do not find substantial evidence that at the time
of that incident, appellant reasonably believed he faced imminent
bodily injury. Notably, both defense witnesses, Maryam and
Jalilla, testified that appellant did not touch Makaila at all and
never held her against the wall. Maryam stated that Makaila
attempted to hit appellant, but he avoided her. Jalilla testified
that Makaila managed to strike appellant, but that appellant
responded only by holding up his arms in a defensive posture. If
the jury believed this evidence, there would be no basis for a
conviction regardless of a self-defense instruction.
On the other hand, while Makaila admitted getting into a
physical altercation with appellant in the bedroom, once they
were separated, she testified that she walked toward the front of
the shop to leave. At that point, she stated that appellant came
up behind her, grabbed her, and pinned her to the wall. She did
not state that she hit or otherwise confronted appellant leading
up to that conduct. Similarly, Lisa, the fourth witness to the
incident whose testimony appellant largely ignores, did not
provide evidence that Makaila hit appellant before he grabbed
her. She testified that she saw appellant dragging Makaila into
the front room and then pinning Makaila to the wall with his
hand around her neck. As such, none of the evidence presented
supported an instruction on self-defense related to the charged
conduct.

17
 Appellant’s citation to People v. Villanueva (2008) 169
Cal.App.4th 41 (Villanueva) is unavailing. In Villanueva, the
defendant and the victim got into a physical altercation in a
parking lot. (Id. at p. 45.) Later that night, they encountered
each other again in the same lot and the defendant told the
victim to leave. (Id. at pp. 46-47.) The victim drove his car in
reverse toward the defendant, then attempted to shift into gear to
drive forward and leave, at which point the defendant shot him.
(Ibid.) The defendant testified that he thought the victim was
trying to hit him, but did not assert that he fired in self-defense.
Instead, he claimed that he stepped back quickly and the gun
accidentally discharged. (Id. at p. 47.) The trial court refused to
give an instruction on self-defense, noting the absence of evidence
that the defendant intentionally fired in self-defense. (Id. at p.
48.) The court of appeal reversed, citing evidence that the victim
had threatened to kill the defendant and defendant thought the
victim had armed himself upon returning to the parking lot.
Thus, despite the defendant’s assertion that the shooting was
accidental, “[t]he jury could have concluded that defendant,
fearing that he would be hit by [the victim’s] van, intentionally
shot [the victim] in self-defense. As there was sufficient evidence
of self-defense, and defendant requested the instruction, the trial
court was required to give the instruction.” (Id. at p. 52.)
Appellant also cites similar cases in which the defendant’s
theory of accidental shooting was inconsistent with self-defense,
but there was other substantial evidence from which the jury
could have found the defendant acted intentionally and in self-
defense. (See People v. Barton (1995) 12 Cal.4th 186, 202–203
[finding sufficient evidence of intentional shooting in imperfect
self-defense despite the defendant's assertion that the shooting

18
was accidental]; People v. Elize (1999) 71 Cal.App.4th 605, 610
[“A jury ... could disbelieve defendant’s testimony that the firing
was accidental, and decide instead that he had fired
intentionally.”]; People v. Mayweather (1968) 259 Cal.App.2d 752,
756 [jury could have found shooting in self-defense despite
defendant’s assertion of accident].)
These cases are distinguishable. Each one involves
circumstances in which there was substantial evidence from
which the jury could find that the defendant acted in self-defense,
despite his or her own testimony to the contrary. Here, as we
have discussed, there was no such evidence.8 Thus, the court did
not err in refusing to instruct the jury on self-defense.
II. Deadly Weapon
The jury found appellant guilty in count one of assault with
a deadly weapon under section 245, subdivision (a)(1). The court
instructed the jury that the weapon—the kitchen knife—could be
either inherently deadly or deadly in the way appellant used it.
Appellant contends this was error, as a knife is not inherently
deadly. Respondent concedes the error, but argues that it was not
prejudicial. We agree with respondent that under the
circumstances, the error was harmless beyond a reasonable
doubt.
A. Erroneous instruction
The jury was instructed using CALCRIM No. 875 for count

8Appellant’s suggestion that the jury was left with an “all
or nothing choice” between convicting him of the charged offenses
or acquitting him of all charges lacks merit. The court instructed
the jury on the lesser included offense of simple assault.
Appellant’s references to the requirements for instruction on
lesser included offenses are therefore inapplicable.

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one, assault with a deadly weapon as follows: “To prove that the
defendant is guilty of this crime, the People must prove that: [¶]
1. The defendant did an act with a deadly weapon other than a
firearm that by its nature would directly and probably result in
the application of force to a person; [¶] 2. The defendant did that
act willfully; [¶] 3. When the defendant acted, he was aware of
facts that would lead a reasonable person to realize that his act
by its nature would directly and probably result in the
application of force to someone; [¶] AND [¶] 4. When the
defendant acted, he had the present ability to apply force with a
deadly weapon other than a firearm to a person.” The instruction
further stated that “[t]he People are not required to prove that
the defendant actually touched someone,” or that “the defendant
actually intended to use force against someone when he acted.”
The instruction defined “great bodily injury” as “significant
or substantial physical injury. . . . It is an injury that is greater
than minor or moderate harm.” In the provision at issue here,
the instruction defined “deadly weapon other than a firearm” as
“any object, instrument, or weapon that is inherently deadly or
one that is used in such a way that it is capable of causing and
likely to cause death or great bodily injury.”
In her closing argument, the prosecutor addressed this
element as follows: “You have a weapon. There’s no dispute. A
knife. Of course it can be a deadly weapon. Something as sharp
as this doesn’t do well with skin. You can cut someone. You can
injure them. You can maim them. You can kill them with one
artery. So this of course is a deadly weapon. [¶] But, look, just
having a knife is not a weapon, right - - it’s not a crime, right?
People have kitchen knives all the time. Nothing wrong with
that, it’s what you do with the kitchen knife. [¶] When you take a

20
knife and when you’re holding somebody by the neck pinning
them on a wall and if you hold the knife up to their head or their
face or their neck and you’re pushing against them and you’re
threatening them, in that moment, that can constitute an assault
with a deadly weapon. . . . [¶] Why? Because you are seconds
away from stabbing them in the face.” The prosecutor also
argued that the first element of assault meant: “[D]id the
defendant do an act with the knife that would result in some type
of a harmful or offensive touching? . . . When you hold a knife
above someone, even if you just hold it inches within their face,
right, of course that can result in harmful touching.”
B. Legal standards
“‘As used in section 245, subdivision (a)(1), a “deadly
weapon” is “any object, instrument, or weapon which is used in
such a manner as to be capable of producing and likely to
produce, death or great bodily injury.” [Citation.] Some few
objects, such as dirks and blackjacks, have been held to be deadly
weapons as a matter of law; the ordinary use for which they are
designed establishes their character as such. [Citation.] Other
objects, while not deadly per se, may be used, under certain
circumstances, in a manner likely to produce death or great
bodily injury.’” (People v. Aledamat (2019) 8 Cal.5th 1, 6
(Aledamat).) “Because a knife can be, and usually is, used for
innocent purposes, it is not among the few objects that are
inherently deadly weapons. ‘While a knife is not an inherently
dangerous or deadly instrument as a matter of law, it may
assume such characteristics, depending upon the manner in
which it was used.’” (Ibid., quoting People v. McCoy (1944) 25
Cal.2d 177, 188, [153 P.2d 315].) Thus, in Aledamat, our
Supreme Court found that “the trial court erred in presenting the

21
jury with two theories by which it could find the box cutter [a
kind of knife] a deadly weapon: (1) inherently or (2) as used. The
first theory (inherently) is incorrect, but the second theory (as
used) is correct.” (Aledamat, supra, 8 Cal.5th at p. 7.)
The Aledamat court then examined the standard for
determining prejudice where the trial court instructs on a legally
inadequate theory. It explained that when the “theory is legally
erroneous—i.e., of a kind the jury is not equipped to detect—a
higher standard must be met for the error to be found harmless.”
(Aledamat, supra, 8 Cal.5th at p. 7.) This test “reflect[s] the view
that jurors are ‘well equipped’ to sort factually valid from invalid
theories, but ill equipped to sort legally valid from invalid
theories.” (Ibid., quoting People v. Guiton (1993) 4 Cal.4th 1116,
1126.) The court concluded that, when a legally incorrect jury
instruction on an alternative theory of guilt is at issue, “[t]he
reviewing court must reverse the conviction unless, after
examining the entire cause, including the evidence, and
considering all relevant circumstances, it determines the error
was harmless beyond a reasonable doubt.” (Aledamat, supra, 8
Cal.5th at p. 13, applying Chapman v. California (1967) 386 U.S.
18, 24.)
C. Analysis
The parties agree that under Aledamat, CALCRIM No. 875
was erroneous to the extent it defined a deadly weapon, here the
knife, as any object, instrument, or weapon that is inherently
deadly. Appellant contends the error was prejudicial. We
disagree.
Appellant argues that “the evidence about Mr. Hasan’s use
of a knife was anything [but] clear,” citing the different testimony
from Makaila, officer Aguilar, and detective Smey regarding what

22
exactly appellant did with the knife. All of this evidence
stemmed from statements made, through testimony or prior
statements, by Makaila. But under any version of the testimony,
it is clear the error was harmless. Makaila testified at trial that
appellant held the blade of the knife within inches of her neck as
he threatened, “watch what’s going to happen if you take the
baby from me.” She also stated that she told police officers the
same thing. As reflected on the body worn camera footage, she
told officer Aguilar at the scene that appellant had the knife by
her face by the wall. In addition, she demonstrated what
appellant did in the video by bringing her right hand by her face,
above her head. Lisa also stated that she saw appellant’s hand
by Makaila’s face, although she did not see a knife. Both officer
Aguilar and detective Smey testified that Makaila told them
appellant raised the knife over her head with the blade pointing
toward her. Even assuming the jury discounted the statements
by officer Aguilar and detective Smey, as appellant argued they
were exaggerated and falsified, Makaila’s testimony that
appellant held an 11-inch knife next to her neck or her face
established defendant’s use of the weapon in a manner likely to
cause great bodily injury. The jury necessarily rejected
appellant’s argument that he did not use the knife in a way that
would probably result in the application of force when it found
him guilty of assault. (See Aledamat, supra, 8 Cal.5th at p. 14.)
Under those circumstances, we conclude the jury necessarily
found that appellant used the knife in a deadly manner.
The closing arguments by the prosecutor do not compel a
different result. Although she stated that a knife “of course is a
deadly weapon,” she then immediately explained that “just
having a knife is not a weapon, right - - it’s not a crime, right?

23
People have kitchen knives all the time. Nothing wrong with
that, it’s what you do with the kitchen knife.” She also
repeatedly argued that it was appellant’s conduct with the
knife—holding it above Makaila’s head and next to her face and
neck—that met the elements of the assault charge. As such,
appellant’s contention that the prosecutor argued “that just
holding a knife was enough to convict” is not supported by the
record.
We also reject appellant’s reliance on People v. Stutelberg
(2018) 29 Cal.App.5th 314, in which the court found prejudicial
error on one of the assault charges. There, the victim was
unharmed after the defendant “swung” at him but missed. (Id. at
p. 322.) The court noted it was unclear whether the defendant
was holding a box cutter in the same hand. (Ibid.) Further,
although a witness testified that the defendant “jabbed a box
cutter at both [the victim] and him in a manner likely to cause
great bodily injury, the jury apparently disbelieved his testimony,
acquitting [the defendant] of assault with a deadly weapon
against [that witness].” (Ibid.) As such, the court found that
“[t]he exact manner in which [the defendant] used the box cutter
against [the victim] is thus unclear. The jury could reasonably
conclude that his ‘flicking’ motion was more of a threat, as
opposed to an act likely to cause death or great bodily injury.
Under these circumstances, we cannot say that the court’s error
in instructing the jury regarding an inherently dangerous
weapon was harmless beyond a reasonable doubt.” (Ibid.)
Here, on the other hand, Makaila testified that appellant
held the knife close to her neck and/or her face. There was no
evidence from which the jury could have found that appellant
assaulted Makaila with the knife without also concluding that he

24
used the knife in a deadly manner. As such, the inclusion of the
erroneous instruction was harmless beyond a reasonable doubt.
III. Sentencing
Appellant contends the matter must be remanded for
sentencing because the court failed to make an oral
pronouncement of the sentence on count two on the record.
Respondent agrees.
The minute order from the sentencing hearing states that
the court imposed a four year term on count two, doubled for the
prior strike conviction, stayed pursuant to section 654. However,
the transcript of the hearing does not reflect that the court orally
pronounced a sentence on count two. “The record of the oral
pronouncement of the court controls over the clerk’s minute
order.” (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2; see also
People v. Zackery (2007) 147 Cal.App.4th 380, 387–388 [“The
clerk cannot supplement the judgment the court actually
pronounced by adding a provision to the minute order and the
abstract of judgment.”].)
“The failure to pronounce sentence on a count is an
unauthorized sentence and subject to correction on remand.”
(People v. Price (1986) 184 Cal.App.3d 1405, 1411, fn. 6.) We
therefore remand the matter for resentencing on count two.

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 DISPOSITION
The matter is remanded for resentencing on count two.
The judgment of the trial court is affirmed in all other respects.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

MANELLA, P. J.

CURREY, J.

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