California, United States of America
The following excerpt is from People v. Garcia, B293737 (Cal. App. 2020):
We appointed counsel to represent defendant on appeal. Defendant's appointed appellate counsel filed an opening brief in accordance with People v. Wende (1979) 25 Cal.3d 436 requesting that we independently review the entire record to determine if there are any arguable issues. On August 22, 2019, we notified defendant that appointed appellate counsel had failed to find any arguable issues and defendant had 30 days within which to independently brief any grounds for appeal, contentions, or arguments he wanted us to consider. Defendant did not file a brief.
On November 15, 2019, after our initial review of the record as required by People v. Wende, supra, 25 Cal.3d 436, we ordered counsel for defendant to serve and file a supplemental opening brief that addressed the following issue: "Whether the trial court erred in instructing the jury on count two . . . that '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
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great bodily injury.' (People v. Aledamat (2019) 8 Cal.5th 1, 6-7 ['[b]ecause a knife can be, and usually is, used for innocent purposes, it is not among the few objects that are inherently deadly weapons' and a trial court thus errs 'in presenting the jury with two theories by which it could find [the knife] a deadly weapon: (1) inherently or (2) as used. The first theory (inherently) is incorrect, but the second theory (as used) is correct'].) Further, if the trial court erred, was defendant prejudiced by the error? (Id.[ ]at p. 13 [conviction must be reversed unless a court determines that the error was harmless beyond a reasonable doubt . . .].)" We invited the Attorney General to file a response within 30 days after the filing of the supplemental opening brief.
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