People v. Greer CA2/8

Filed 7/9/21 P. v. Greer CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B305324

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA480624)
v.

NICHOLAS SEAN GREER,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of
Los Angeles County. Craig Richman, Judge. Affirmed in part,
reversed in part, and remanded for further proceedings.
Bess Stiffelman, 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 Eric J. Kohm,
Deputy Attorneys General, for Plaintiff and Respondent.
___________________________________
 A jury convicted appellant Nicholas Sean Greer of making a
criminal threat in violation of Penal Code section 422, subdivision
(a)1 and found true that appellant personally used a deadly and
dangerous weapon as alleged under section 12022, subdivision
(b)(1). The jury acquitted appellant of an assault with a deadly
weapon under section 245, subdivision (a)(1). In a bifurcated
proceeding to address prior conviction allegations, the trial court
found the strike prior alleged under sections 667, subdivision (d)
and 1170.12, subdivision (b), as well as the five-year prior under
section 667, subdivision (a), to be true. The trial court sentenced
appellant to the high term of three years, doubled because of the
strike prior, and added one year for the weapon allegation for an
aggregate term of seven years. Appellant filed a timely notice of
appeal.
On appeal, appellant contends: (1) the trial court
erroneously excluded relevant evidence critical to his defense in
violation of his state and federal constitutional right to present a
defense; (2) the trial court provided the jury with an instruction
on the weapon enhancement that contained a misstatement of
the law and failed to provide the necessary guidance to determine
if the object was a deadly or dangerous weapon; and (3) the trial
court’s imposition of $510 worth of punitive fines and fees
violated his right to due process. We find merit in appellant’s
second contention and reverse the true finding on the weapon
enhancement. The judgment is otherwise affirmed.

1 Unless otherwise indicated, all further section references
are to the Penal Code.

2
 FACTUAL AND PROCEDURAL BACKGROUND
Prosecution’s Case
Appellant and the victim, Edwin Kearney2 are half
brothers. On August 22, 2019, Edwin was at his parents’ one
bedroom apartment with his son, Elijah, who was playing a video
game when appellant walked in. According to Edwin, appellant
appeared to be “spaced out a little bit.” He wanted to use the
shower, and asked Edwin for a clean towel and hair clippers,
which Edwin provided. At this point, the conversation was
cordial, but Edwin felt uncomfortable.
After getting out of the bathroom, appellant began to ask
Edwin a series of family-related questions, such as whether their
mother was at work. Appellant’s tone became aggressive as the
conversation continued. Appellant asked Edwin whether Edwin
could make a copy of a key to their mother’s apartment. Edwin
told appellant that he did not have the right to do that since it
was not his apartment. Appellant became increasingly upset.
Edwin told his son, Elijah, to get behind him just in case
something occurred.
Appellant began cussing at Edwin, calling him a “faggot”
and a “bitch-ass nigger.” Edwin asked appellant to calm down –
that his son Elijah was there, and to leave in peace. Appellant
told Edwin that he was not going anywhere. Appellant took a
fighting stance, made a fist, and made threatening comments
about knocking him out and killing him. Edwin stood up and told
appellant he would defend himself. Appellant went to the

2 This case involves family members with the same last
name: Edwin Kearney, Elijah Price-Kearney, and Alisha
Kearney. To avoid confusion, we will refer to each by their first
name.

3
kitchen to grab a knife from the kitchen drawer. He came back
and stood about three feet from Edwin, holding the knife in his
right hand at chest level while in a fighting stance. Appellant
threatened to kill Edwin multiple times as he swung the knife
side to side as if he was toying with Edwin. Edwin felt afraid
based on: (1) prior assaultive encounters with appellant, (2) the
perceived credibility of the threat, and (3) a desire to protect his
son, Elijah, from appellant.
Edwin noticed the front door was ajar. He and Elijah ran
out the door to their neighbor’s apartment. Once inside, he
locked the door to keep appellant out. Appellant followed Edwin
and Elijah to their neighbor’s apartment and continued his
threatening comments from the other side of the door. Edwin
called his father and 9-1-1.
In the 9-1-1 call, Edwin told the operator that appellant
“tried to stab me.”
When Officer Lisa Ruiz of the Los Angeles Police
Department arrived at the apartment complex, she saw appellant
standing in the threshold of the door to the complex. Appellant
was argumentative and did not immediately comply with the
officer’s commands. Ultimately, he complied and was detained.
Edwin was interviewed by Officer Nodes in Officer Ruiz’s
presence. Officer Ruiz noted that Edwin was sad, crying, and
emotional. Elijah was interviewed by Officer Ruiz separately.
Both interviews were recorded. Officer Nodes accompanied
Edwin back to the apartment for further investigation. A
photograph of the knife was taken, but the knife was not
recovered as evidence.

4
Appellant’s Case
Appellant testified on his own behalf. He explained he does
not stay at his mother’s apartment but sleeps there on occasion,
keeps his property there, and uses the apartment as his address.
On August 22, 2019, appellant went to the apartment to see his
family and to take a shower.
After the shower, appellant and Edwin engaged in
conversation which escalated into an argument. Appellant could
not recall what the argument was about, but said it was not
about a key. Edwin was yelling. They were insulting each other.
Edwin stated, “There is guns all around the house. I have
somebody coming here to do something to you.” Appellant did not
feel afraid because Edwin “always lies.” As the argument
continued, Edwin said, “I got something for you. I’ll be back.”
Edwin and Elijah left together.
When appellant attempted to leave the apartment complex,
he was met by the officers from the Los Angeles Police
Department. The officers handcuffed and placed him in the
police vehicle. Appellant testified he never threatened to kill
Edwin nor did he confront him with a knife. He further denied
having physical confrontations with Edwin in the past.
During the ride from the apartment to the police station,
Officer Ryan Cadiz spoke with appellant. The conversation was
recorded. Appellant asked Officer Cadiz the reason for his arrest.
Officer Cadiz explained that he was being arrested for a “245”
and that he “was carrying a knife.” Appellant explained that he
was “in the kitchen picking up a knife to do something.”

5
 DISCUSSION
I. Exclusion of Alisha Kearny’s Potential Testimony
Appellant contends the trial court erroneously excluded
relevant evidence critical to his defense in violation of his state
and federal constitutional rights, requiring reversal of his
criminal threat conviction. We disagree.
A. Legal Principles
“In determining the admissibility of evidence, the trial
court has broad discretion. Thus, it is within the court’s
discretion whether or not to decide admissibility questions under
Evidence Code section 402, subdivision (b)[.] [Citation.]” (People
v. Williams (1997) 16 Cal.4th 153, 196.)
Under Evidence Code section 352, “[t]he court in its
discretion may exclude evidence if its probative value is
substantially outweighed by the probability that its admission
will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or
of misleading the jury.” (Evid. Code, § 352.)
“On appeal, a trial court’s decision to admit or not admit
evidence, whether made in limine or following a hearing
pursuant to Evidence Code section 402, is reviewed only for abuse
of discretion. [Citations.]” (People v. Williams, supra, 16 Cal.4th
at p. 197.) “In contrast to errors having a basis in the federal
Constitution, the so-called Watson standard applies generally to
all manner of trial errors occurring under California law,
precluding reversal unless the error resulted in a miscarriage of
justice. [Citation.]” (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th
780, 801.) “[A] ‘miscarriage of justice’ should be declared only
when the court, ‘after an examination of the entire cause,
including the evidence,’ is of the ‘opinion’ that it is reasonably

6
probable that a result more favorable to the appealing party
would have been reached in the absence of the error.” (People v.
Watson (1956) 46 Cal.2d 818, 836 (Watson).)
Issues involving constitutional rights of the accused are
generally reviewed independently. (People v. Cromer (2001) 24
Cal.4th 889, 894.) When it relates to the admission or exclusion
of evidence, the “ ‘[a]pplication of the ordinary rules of evidence
. . . does not impermissibly infringe on a defendant’s right to
present a defense.’ [Citations.]” (People v. Fudge (1994) 7
Cal.4th 1075, 1102-1103.) The California Supreme Court has
explained “that only evidentiary error amounting to a complete
preclusion of a defense violates a defendant’s federal
constitutional right to present a defense.” (People v. Bacon (2010)
50 Cal.4th 1082, 1104, fn. 4.)
The standard for assessing prejudice for federal
constitutional errors is the “harmless beyond a reasonable doubt”
test under Chapman v. California (1967) 386 U.S. 18, 24
(Chapman).) “Under Chapman, a federal constitutional error is
harmless when the reviewing court determines ‘beyond a
reasonable doubt that the error complained of did not contribute
to the verdict obtained.’ [Citation.] When there is ‘ “a reasonable
possibility” ’ that the error might have contributed to the verdict,
reversal is required. [Citation.]” (People v. Aranda (2012) 55
Cal.4th 342, 367.)
B. Relevant Proceedings
After concluding jury selection, the trial court took up
several in limine motions, among them, the issue we confront
here, whether to admit or exclude Alisha’s proposed testimony.
Alisha is Edwin’s sister who claims she was wrongly accused by

7
Edwin and falsely arrested several months prior to the incident
involving appellant.
In framing the issue to the trial court, the prosecutor noted,
“Basically the substance of her statement is that back in January
that victim in this case called the police on her because she
became violent with him at his mother’s house. And she was
arrested.” When asked by the court for its relevance, appellant’s
trial counsel indicated that Alisha’s testimony went to Edwin’s
“motivation.” Appellant’s trial counsel explained, “[I]t was a very
similar circumstance where he, at the same location, he made
similar statement. ¶ That the sister was homeless, on drugs,
came over, was violent. He was scared that she was going to stab
him. And, you know, she was making threats to him . . . ¶ Like,
. . . very identical situation where he made the same allegation
and had her arrested. And she basically indicates it was a lie and
he’s been doing this to different family members . . . ¶ We’re
indicating that he basically likes to falsely call the police on his
siblings to keep them away from the family home.”
During the hearing, the prosecutor and defense counsel
advised the trial court: (1) a police report was generated in
Alisha’s arrest, (2) Edwin did not claim Alisha had a knife when
she allegedly made the threats, (3) their mother was present
during the incident, (4) their mother did not witness the alleged
threat but saw that Alisha was “yelling and screaming and
punching things and hitting things[,]” (5) Edwin escorted Alisha
out of the apartment because of her disrespect for their mother
and threats made to him, and (6) once outside, Alisha banged on
the door, broke a window, and put a hole in the wall.
The prosecutor noted that if Alisha’s testimony was
admitted to show Edwin has a character trait of lying to get his

8
family members in trouble, the prosecutor would need to call
witnesses not relevant to the trial, such as their mother, who was
present when the incident with Alisha occurred. The prosecutor
also mentioned that Alisha’s testimony would open the door to
rebutting such evidence through presenting character evidence
against appellant. The trial court indicated it would make its
ruling after Edwin’s direct examination.
Once Edwin testified on direct examination, the trial court
again took up Alisha’s proposed testimony. The prosecutor
informed the trial court that the alleged threats happened after
Edwin had escorted Alisha into the hallway while the mother
remained inside but that the mother would corroborate Alisha’s
aggressive attitude inside the apartment. Additionally, the
prosecutor indicated the police observed some damage in the
hallway.
The trial court explained, “Although I would agree that
similar faults, complaints, accusations, would be relevant
because we have the mother, who would corroborate much of the
prior incident. ¶ Except for the threats and then we only have
two people who were privy to the threats; that would be Alisha
and Edwin Kearney. One says yes the other says no. ¶ As was
characterized the other day, it becomes a he said/she said,
literally, situation. And therefore a trial within a trial. ¶ So I’m
not inclined to allow it to come in at this point in time for that
reason. If the similar false accusations could be proved beyond
he said/she said, I would consider allowing it in.”
After hearing from appellant’s trial counsel, the trial court
ruled, “I’m not going to allow it to come in. And it would have a
tendency under [Evidence Code section] 352 to distract the jury
from the issues and take more time than I think it has value for.”

9
C. Analysis
Appellant claims the trial court violated his federal as well
as his state constitutional right of due process to present a
defense when it excluded Alisha’s proposed testimony. We
disagree.
At the motion in limine hearing, appellant explained
Alisha’s proposed testimony was admissible to show Edwin calls
the police and falsifies violence and threats that did not occur to
get his siblings out of his mother’s home. Such evidence falls
under Evidence Code section 1103, subdivision (a)(1) which
states, “In a criminal action, evidence of the character or a trait of
character (in the form of an opinion, evidence of reputation, or
evidence of specific instances of conduct) of the victim of the
crime for which the defendant is being prosecuted is not made
inadmissible by Section 1101 if the evidence is: [¶] (1) Offered by
the defendant to prove conduct of the victim in conformity with
the character or trait of character.” (Evid. Code, § 1103, subd.
(a)(1).)
Appellant’s overall defensive strategy was to undermine
Edwin and Elijah’s credibility. He attempted to do so by: (1)
highlighting inconsistencies between Edwin’s statement to the
police and trial testimony, (2) pointing out inconsistencies
between Edwin’s and Elijah’s testimony, and (3) pointing out the
lack of proof that appellant had attacked Edwin three years ago.
Excluding Alisha’s testimony did not amount to a complete
preclusion of appellant’s defense strategy and did not implicate
appellant’s federal constitutional due process right to present a
defense.
Appellant cites People v. Adams (1988) 198 Cal.App.3d 10,
and People v. Burrell-Hart (1987) 192 Cal.App.3d 593, as

10
examples where Courts of Appeal have held it was error for the
trial court to exclude testimony from a defense witness who made
prior false accusations of sexual misconduct against other people.
To counter these cases, the Attorney General cites People v.
Bittaker (1989) 48 Cal.3d 1046 (Bittaker) and People v. Miranda
(2011) 199 Cal.App.4th 1403, to show contrary appellate holdings
based on similar facts. Ultimately, the merit of each case must
be assessed on its own unique set of facts and the historical
record of legal proceedings that accompany it.
As we have determined that the trial court’s decision to
exclude Alisha’s testimony did not implicate appellant’s federal
constitutional right to due process because it did not completely
preclude appellant from presenting his defense strategy, we
review the trial court’s ruling under the abuse of discretion
standard.
“The abuse of discretion standard is used in many . . .
contexts and reflects the trial court’s superior ability to consider
and weigh the myriad factors that are relevant to the decision at
hand. A trial court will not be found to have abused its discretion
unless it ‘exercised its discretion in an arbitrary, capricious, or
patently absurd manner that results in a manifest miscarriage of
justice.’ [Citation.]” (People v. Roldan (2005) 35 Cal.4th 646,
688, disapproved on other grounds in People v. Doolin (2009)
45 Cal.4th 390.)
As argued by appellant’s trial counsel, Alisha’s proposed
testimony was material to show Edwin’s character trait for
falsifying police reports against family members.3 As the trial

3 Appellant claims the trial court misunderstood the
probative value of Alisha’s proposed testimony. According to
appellant, “[t]he jury need not determine who was telling the

11
court properly assessed, the probative value of Alisha’s testimony
hinged on appellant’s ability to prove that Edwin lied when he
called the police. Put differently, “[t]he value of the evidence as
impeachment depends upon proof that the prior [incident was]
false.” (Bittaker, supra, 48 Cal.3d at p. 1097.) As such, the trial
court’s focus on appellant’s ability to prove falsehood was proper.
The trial court’s analysis of Alisha’s proposed testimony as
a “he said/she said” scenario that would turn into a “trial within a
trial” shows it believed the testimony lacked strength on proving
falsity. The trial court was advised that Alisha’s mother, if called
as a witness by the prosecution, would, in all likelihood,
corroborate Edwin’s version of events inside the apartment.
Furthermore, the police report indicated officers observed
physical damage in the hallway suggesting, if an officer was
called, he or she would probably corroborate Edwin’s version that
Alisha was acting out in the hallway by hitting and banging on

truth about the prior allegation since it demonstrated the
brother’s knowledge of the consequences of the allegation, and
how it would aid in his efforts to exclude the siblings from the
family home, which was the motive, according to appellant, for
Edwin to fabricate.” We do not read the transcript in the same
way. While appellant’s trial counsel talked about “motivation,”
she concluded that the probative value of Alisha’s testimony was
to show Edwin “likes to falsely call the police on his siblings to
keep them away from the family home.” Despite having the
opportunity to do so in the hearing, trial counsel did not argue a
theory of admissibility separate from falsity. As a fundamental
rule of appellate procedure, “a reviewing court does not consider
arguments or theories that could have been but were not raised
below[.]” (In re Campbell (2017) 11 Cal.App.5th 742, 756.)

12
things. These facts, when combined, weakened the probative
value of Alisha’s proposed testimony.
Possessing this knowledge, the trial court weighed the
probative value of Alisha’s testimony against two factors
enumerated under Evidence Code section 352 – undue
consumption of time and confusion of issues. While the trial
court did not state on the record that it believed the probative
value was substantially outweighed by undue consumption of
time and confusion of issues, it did not need to do so. “In ruling
on an Evidence Code section 352 [motion], the trial court need
neither expressly weigh prejudicial effect against probative value
nor expressly announce compliance with the statute. [Citation.]”
(People v. Ybarra (2008) 166 Cal.App.4th 1069, 1080.) The trial
court’s ruling was neither arbitrary nor capricious. It was not an
abuse of discretion.
Although we hold the trial court did not abuse its
discretion, if error had occurred, there was no reasonable
possibility of a more favorable result. (Watson, supra, 46 Cal.2d
at p. 836.)
The evidence adduced at trial shows Edwin and Elijah’s
testimony concerning appellant’s actions were generally
consistent. According to Officer Ruiz, Edwin and Elijah were
separated when they gave their statements to the police. Their
statements were recorded and to a large extent corroborated one
another’s. Officer Ruiz also testified that Edwin was emotional –
he was sad and crying – further bolstering Edwin’s credibility.
Appellant contends the jury’s acquittal on the assault with
a deadly weapon charge shows this was a close credibility call
and that Alisha’s testimony would have tipped the scale in
appellant’s favor. We disagree.

13
 Our review of the record shows appellant’s trial counsel’s
closing argument focused on Edwin’s testimony about appellant’s
actions with the knife when the assault allegedly occurred.
Appellant’s trial counsel argued Edwin’s description of what
happened was not an assault since assault requires the ability to
apply force as an element. Based on Edwin’s testimony,
appellant’s trial counsel argued the actions described were
consistent with brandishing to scare Edwin. During the trial,
Edwin testified that appellant got to about three feet away from
him with the knife, and that, he was “swinging a little bit left to
right toying with me[.]” We see this not so much as a partial
rejection of Edwin’s credibility, but rather, as a verdict consistent
with Edwin’s own testimony and the appropriate trial tactics of
appellant’s trial counsel to point out the weakness in the
prosecution’s evidence. As such, from our review of the totality of
the record, there was no reasonable probability of a more
favorable result on the criminal threat conviction.
II. Instructional Error on the Weapon Enhancement
Appellant contends the trial court’s instruction on the
weapon enhancement contained a misstatement of law and failed
to provide the necessary guidance to determine if the object was a
deadly or dangerous weapon, thus requiring reversal of the
enhancement. We agree.
A. Legal Principles
“It is settled that in criminal cases, even when not
requested, the court must instruct on the general principles of
law relevant to the issues raised by the evidence. [Citations.]
The general principles of law governing the case are those
principles closely and openly connected with the facts before the
court, and which are necessary for the jury’s understanding of the

14
case. [Citations.]” (People v. Wilson (1967) 66 Cal.2d 749, 759,
fn. omitted.)
In Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi),
the United States Supreme Court held, “[o]ther than the fact of a
prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to
a jury, and proved beyond a reasonable doubt.” (Id. at p. 490.)
Picking up where Apprendi left off, the California Supreme
Court explained that, “[t]he [Apprendi] court treated a sentence
enhancement as the functional equivalent of a crime. [Citation].
To put it more accurately, Apprendi treated the crime together
with its sentence enhancement as the ‘functional equivalent’ of a
single ‘greater’ crime. [Citation.]” (People v. Sengpadychith
(2001) 26 Cal.4th 316, 326.) As such, a criminal defendant’s right
to a jury trial on a charged crime extends to enhancements. Trial
courts have a sua sponte duty to instruct on charged weapon
enhancements.
California law categorizes a deadly or a dangerous weapon
in two ways: (1) objects deemed “inherently deadly” as a matter
of law; and (2) objects that are determined to be deadly or
dangerous based on the manner of use. (People v. Stutelberg
(2018) 29 Cal.App.5th 314, 317-318.) “ ‘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.]’ ” (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.” (Ibid.)
When an object is not “inherently deadly” as a matter of
law, but the trial court nonetheless instructs the jury with both

15
theories to determine whether the object is deadly or dangerous –
“inherently deadly” or based on usage – the trial court commits
error. (Aledamat, supra, 8 Cal.5th at p. 7.) Such errors are
called “alternative-theory errors.” (Id. at p. 9.)
If a trial court instructs the jury on what constitutes an
“inherently deadly” weapon, the error is factual in nature. On
the contrary, the trial court commits a legal error when, having
provided the two alternate theories, it fails to further define what
the law determines to be an “inherently deadly” object.
(Aledamat, supra, 8 Cal.5th at p. 8.)
“A legal error is an incorrect statement of law, whereas a
factual error is an otherwise valid legal theory that is not
supported by the facts or evidence in a case. [Citation.] Between
the two, legal error requires a more stringent standard for
prejudice, for jurors are presumed to be less able to identify and
ignore an incorrect statement of law due to their lack of formal
legal training. [Citation.] Factual errors, on the other hand, are
less likely to be prejudicial because jurors are generally able to
evaluate the facts of a case and ignore factually inapplicable
theories. [Citation.]” (People v. Stutelberg, supra, 29 Cal.App.5th
at p. 318.)
As to prejudice, legal errors are subject to the Chapman
standard of review. (Aledamat, supra, 8 Cal.5th at p. 13.) “The
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.” (Ibid.)
B. Legal Proceedings
On the weapon enhancement, the trial court instructed the
jury with CALCRIM No. 3145:

16
 “If you find the defendant guilty of criminal threats, you
must then decide whether the People have proved the
additional allegation that the defendant personally used a
deadly or dangerous weapon during the commission of that
crime. [¶] 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. [¶] Great bodily injury means significant or
substantial physical injury. It is an injury that is greater
than minor or moderate harm. [¶] Someone personally
uses a deadly or dangerous weapon if he or she
intentionally displays the weapon in a menacing manner.
[¶] The People have the burden of proving each allegation
beyond a reasonable doubt. If the People have not met this
burden, you must find that the allegation has not been
proved.” (Second italics added.)
In providing this instruction to the jury, the trial court
deleted the following additional bracketed paragraphs on the
definition of what constitutes an “inherently deadly” object and
the factors the jury may consider in determining whether an
object is deadly or dangerous based on usage:
“[An object is inherently deadly if it is deadly or
dangerous in the ordinary use for which it was designed.]

“[In deciding whether an object is a deadly weapon,
consider all the surrounding circumstances, including when
and where the object was possessed[,] [and] [where the
person who possessed the object was going][,] [whether the
object was changed from its standard form][,] [and any

17
 other evidence that indicates whether the object
would be used for a dangerous, rather than a harmless,
purpose.]]” (CALCRIM No. 3145.)
C. Analysis
Based on the manner CALCRIM No. 3145 was given to the
jury, the Attorney General concedes that the trial court
committed error. However, he contends the error was harmless
beyond a reasonable doubt. We agree the error is legal in nature
because the trial court failed to instruct the jury on the definition
of an “inherently deadly” weapon triggering the Chapman
standard of review.
We thus address whether the legal error is harmless
beyond a reasonable doubt. Stated differently, we are required to
reverse if a juror – based on the manner in which the jury was
instructed – voted to find the weapon allegation true because he
or she believed the knife to be an “inherently deadly” object.
In Aledamat, the weapon allegation under section 12022,
subdivision (b) was a box cutter, not a knife. (Aledamat, supra, 8
Cal.5th at p. 6.) While not dispositive, a box cutter, by its own
name, suggests it is not an object manufactured to cut human
beings. As such, a reasonable juror would, it seems to us, look to
consider how the box cutter was used to determine whether the
item was a deadly or a dangerous weapon.
This is more difficult to say with a knife. Just as the trial
court and counsel appear to have failed to identify the issue, we
find it hard to fathom that a juror would not have entertained a
similar assumption about the dangerous and deadly nature of a
knife. Indeed, here, the trial court deleted the portion of
CALCRIM No. 3145 that provides jurors with guidance to
determine whether the object was used in a deadly or dangerous

18
way. The common assumption that a knife is a deadly
instrument, without considering the manner of use, is easily
arrived at without much reflection.
In Aledamat, one of the ways in which the court
determined that the error was harmless was by looking at the
verdict the jury rendered. (Aledamat, supra, 8 Cal.5th at p. 15.)
Just as in the instant case, the defendant in Aledamat was
charged with both an assault with a deadly weapon in violation of
section 245, subdivision (a)(1) and making a criminal threat in
violation of section 422, subdivision (a). On the section 422
count, the defendant was also charged with a personal use of a
deadly or dangerous weapon in violation of section 12022,
subdivision (b). The jury convicted the defendant on both counts
and found the weapon allegation true. (Aledamat, at p. 5.)
In this approach, “[t]he reviewing court examines what the
jury necessarily did find and asks whether it would be
impossible, on the evidence, for the jury to find that without also
finding the missing fact as well. [Citation.] Here, under the
[assault with a deadly weapon] instructions, the jury necessarily
found the following: (1) defendant 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)
defendant 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) defendant
had the present ability to apply force with a deadly weapon to a
person.” (Aledamat, supra, 8 Cal.5th at p. 15.)
The Aledamat court further reasoned that, while it was
possible the jury could have determined the box cutter to be an
“inherently deadly” object in the colloquial sense, because of the

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jury’s finding on the assault charge, they necessarily would have
considered that the defendant used it as a weapon. (Aledamat,
supra, 8 Cal.5th at p. 15.)
In the instant case, the direct opposite occurred. The jury
acquitted appellant on the assault with a deadly weapon charge.
We therefore cannot conclude, as in Aledamat, that the jury
necessarily would have considered that the knife was used as a
weapon rather than simply finding that the knife was an
“inherently dangerous” object in a colloquial sense. For the
foregoing reasons, we hold the instructional error was not
harmless beyond a reasonable doubt.
III. Punitive Fine and Fees
Appellant contends the imposition of $510 worth of
punitive fine and fees at sentencing violated his right to due
process. We disagree.
A. Relevant Proceedings
The jury rendered its verdict finding appellant guilty of
making a criminal threat and not guilty of assault with a deadly
weapon on November 27, 2019, after the publication of People v.
Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) on January 8, 2019.
The trial court rendered its judgment on February 26, 2020, and
sentenced appellant to a seven-year prison term. At that time,
the trial court imposed a total of $370 in fines and fees: (1) a
punitive restitution fine in the mandatory minimum amount of
$300 pursuant to section 1202.4, subdivision (b); (2) a parole
revocation restitution fine in the amount of $300 pursuant to
section 1202.45, which was stayed pending the completion of
parole; (3) a criminal conviction assessment in the amount of $30
pursuant to Government Code section 70373; and (4) a court

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operations assessment in the amount of $40 pursuant to section
1465.8, subdivision (a)(1).
When the trial court imposed the punitive fine and the two
assessments, appellant’s trial counsel did not object. Thereafter,
appellate counsel sent a letter pursuant to section 1237.2 (dated
October 15, 2020) to the trial court, asking that the fine and fees
be stayed pursuant to the holding in Dueñas. In the letter,
appellate counsel acknowledged that trial counsel had not
objected at the time the fine and fees were imposed.
B. Analysis
1. Section 1237.2 Issue
Appellant concedes his trial counsel failed to object to the
imposition of the fine and fees at the time of sentencing. Despite
this, he claims the issue is not forfeited because the trial court
considered appellate counsel’s letter request to stay the fine and
fees pursuant to section 1237.2.
“Section 1237.2 states:
An appeal may not be taken by the defendant from a
judgment of conviction on the ground of an error in the
imposition or calculation of fines, penalty assessments,
surcharges, fees, or costs unless the defendant first
presents the claim in the trial court at the time of
sentencing, or if the error is not discovered until after
sentencing, the defendant first makes a motion for
correction in the trial court, which may be made informally
in writing. The trial court retains jurisdiction after a notice
of appeal has been filed to correct any error in the
imposition or calculation of fines, penalty assessments,
surcharges, fees, or costs upon the defendant’s request for

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 correction. This section only applies in cases where the
erroneous imposition or calculation of fines, penalty
assessments, surcharges, fees, or costs are the sole issue on
appeal.”
Section 1237.2 makes clear its provisions apply “in cases
where the erroneous imposition or calculation of fines, penalty
assessments, surcharges, fees, or costs are the sole issue on
appeal.” (§ 1237.2.) The Legislature enacted this section to fix
correctable errors without the need to file a formal appeal – to
promote “judicial economy.” (People v. Torres (2020) 44
Cal.App.5th 1081, 1086.)
“Generally, once a judgment is rendered and execution of
the sentence has begun, the trial court does not have jurisdiction
to vacate or modify the sentence. [Citations.] If the trial court
does not have jurisdiction to rule on a motion to vacate or modify
a sentence, an order denying such a motion is nonappealable, and
any appeal from such an order must be dismissed. [Citations.]
. . . . [¶] There are exceptions to the general rule. A court may
recall a sentence and resentence a defendant under certain
circumstances within 120 days of the defendant’s custody
commitment. (§ 1170, subd. (d)(1).) Resentencing is also
authorized under the circumstances specified in sections
1170.126, 1170.18, and 1170.95. Courts may correct
computational and clerical errors at any time. [Citation.]
Unauthorized sentences and ‘ “ ‘obvious legal errors at sentencing
that are correctable without referring to factual findings in the
record or remanding for further findings’ ” ’ are correctable at any
time. [Citations.]” (People v. Torres, supra, 44 Cal.App.5th at pp.
1084-1085.)

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 People v. Jinkins (2020) 58 Cal.App.5th 707 (Jinkins) is
instructive. In Jinkins, the appellant there entered a plea for 17
years on an assault by means of force likely to produce great
bodily injury in violation of section 245, subdivision (a)(4) and
admitted two special allegations: personally inflicting great
bodily injury pursuant to section 12022.7, subdivision (a), and
committing the crime to benefit a gang pursuant to section
186.22, subdivision (b). At sentencing, the trial court imposed a
punitive restitution fine under section 1202.4, subdivision (b) in
the amount of $5,100. At the time of sentencing, the appellant
did not object. (Jinkins, at pp. 709-710.) Several years later after
Dueñas was published, the appellant filed a motion in superior
court to have his restitution fine reduced to $200, the amount he
claimed was the statutory minimum. (Id. at p. 710.)
The appellant argued “that the sentence was unauthorized
under Dueñas and section 1237 as an ‘order made after judgment
affecting the substantial rights of the party,’ and therefore
excepted from the general rule that the trial court lacked
jurisdiction to rule on his motion, which would require that the
appeal be dismissed.” (Jinkins, supra, 58 Cal.App.5th at p. 712.)
The Jinkins court disagreed and explained, “ ‘ “The
unauthorized sentence exception is ‘a narrow exception’ to the
waiver doctrine that normally applies where the sentence ‘could
not lawfully be imposed under any circumstance in the particular
case,’ for example, ‘where the court violates mandatory provisions
governing the length of confinement.’ [Citations.] The class of
nonwaivable claims includes ‘obvious legal errors at sentencing
that are correctable without referring to factual findings in the
record or remanding for further findings.’ ” [Citation.]’
[Citation.]” (Jinkins, supra, 58 Cal.App.5th at pp. 712-713.) The

23
Jinkins court held that “[the appellant’s] contention is based on
factual arguments concerning his ability to pay, and does not fall
within the exception carved out for unauthorized sentences. The
trial court therefore lacked discretion to review the motion.” (Id.
at p. 713.)
As in Jinkins, the trial court here lacked discretion to
review counsel’s letter. First, the trial court imposed judgment
on February 26, 2020. A notice of appeal was filed on the
following day. The 120-day time period for the trial court to
recall its own sentence pursuant to section 1170, subdivision (d)
to conduct resentencing passed on June 25, 2020. Second, section
1237.2 is inapplicable since the imposition of the fines and fees is
not the sole issue raised on this appeal. Third, as noted in
Jinkins, the alleged error here does not fall under the
unauthorized sentence exception since the request is not
correctible without referring to factual findings. Since the trial
court lacked jurisdiction to change its sentence, the denial of the
letter request was a legal nullity.4
2. Forfeiture
In People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-
1155, we previously held that the failure of trial counsel to object

4 People v. Alanis (2008) 158 Cal.App.4th 1467, 1472–1473
explains, “[b]ecause an appeal divests the trial court of subject
matter jurisdiction, the court lacks jurisdiction to vacate the
judgment or make any order affecting it. [Citations.] Thus,
action by the trial court while an appeal is pending is null and
void. [Citations.] Indeed, ‘[s]o complete is this loss of jurisdiction
effected by the appeal that even the consent of the parties has
been held ineffective to reinvest the trial court with jurisdiction
over the subject matter of the appeal and that an order based
upon such consent would be a nullity.’ [Citation.]”

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to the imposition of the restitution fine under section 1202.4,
subdivision (b), and the assessments under section 1465.8 and
Government Code section 70373 forfeits the claim on appeal.
“The concept of forfeiture for failure to raise ability to pay fines,
fees or assessments is well established in our case law prior to
Dueñas. Some of the cases include People v. Aguilar (2015) 60
Cal.4th 862, 864 [182 Cal.Rptr.3d 137, 340 P.3d 366]; People v.
Trujillo (2015) 60 Cal.4th 850, 853-854 [182 Cal.Rptr.3d 143, 340
P.3d 371]; People v. Nelson (2011) 51 Cal.4th 198, 227 [120
Cal.Rptr.3d 406, 246 P.3d 301]; and People v. Avila (2009) 46
Cal.4th 680, 729 [94 Cal.Rptr.3d 699, 208 P.3d 634].” (People v.
Keene (2019) 43 Cal.App.5th 861, 864.) Here, since appellant’s
trial counsel failed to object, the contention on the imposition of
the punitive fine and the two assessments is forfeited.
DISPOSITION
The true finding on the weapon enhancement pursuant to
section 12022, subdivision (b) is reversed. The matter is
remanded to the trial court for proceedings consistent with this
opinion. The judgment is otherwise affirmed.

OHTA, J.*
We concur:

GRIMES, Acting P. J. WILEY, J.

* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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