APPEAL from a judgment of the Superior Court of Los Angeles County, Leslie A. Swain, Judge. (Los Angeles County Super. Ct. No. BA379547)
The opinion of the court was delivered by: Perluss, P. J.
CERTIFIED FOR PUBLICATION
Quamie Brown was convicted following a jury trial of two counts of assault with a deadly weapon. On appeal Brown contends the guilty verdicts for aggravated assault, as opposed to the lesser included offense of simple assault, are not supported by substantial evidence and the court committed prejudicial error in instructing the jury with the erroneous definition of "deadly weapon" contained in CALCRIM No. 875. Although we agree CALCRIM No. 875's definition of "deadly weapon," which includes objects that are inherently "dangerous" as well as inherently "deadly," is, at best, ambiguous and, at worst, overbroad, any instructional error was harmless; and Brown's two convictions are amply supported by the record. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Brown was charged in an amended information with six counts of assault with a deadly weapon, "to wit, [a] BB gun" (Pen. Code, § 245, subd. (a)(1)).*fn1 As to each count it was also specially alleged the offense was committed to benefit a criminal street gang (§ 186.22, subd. (b)(1)(C)). Brown pleaded not guilty and denied the special gang allegation.
Brown was tried along with co-defendants Brian Eric Speight and Virgeon Leeton Mayberry. According to the evidence at trial, Gerardo Calderon and Jesus Castro were standing on the sidewalk near a parked car when Brown, accompanied by Speight and Mayberry, drove up alongside them in a white Cadillac and stopped the car approximately five feet from Calderon and Castro. Brown called Castro over to the car and through his open driver's side window said, "What the fuck you guys doing here? Get the fuck out of our neighborhood." Castro told Calderon, "Let's get out of here." At that moment Castro and Calderon saw Brown holding a black handgun. Castro shouted, "They're going to shoot at us," and the two men dove to the ground for cover. Calderon was hit in the foot with pellets from the BB gun. Castro was shot two times in the back. Although both Castro and Calderon had red welts on their bodies, neither man went to the hospital or sought medical attention for his injuries.
The People also presented evidence that, the day before Castro and Calderon were shot, three other people in the same neighborhood were shot with a BB gun by a driver of a white sedan. None of those victims (the subjects of the remaining counts) was able to identify Brown or his co-defendants as the men in the white sedan.
Los Angeles Police Detective Eric Mendoza testified Brown was a member of the Black P-Stones criminal street gang and the shooting had occurred in territory claimed by the gang. Mendoza opined the shootings were committed for the benefit of, or in association with, a criminal street gang.
3. The Jury Instructions, Verdict and Sentence
The jury was instructed on the elements of assault with a deadly weapon and on simple assault as a lesser included offense. Pursuant to CALCRIM No. 875, the jury was instructed a "deadly weapon" under section 245 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."
The jury found Brown guilty of two counts of assault with a deadly weapon on Castro and Calderon (counts 1 and 2) and found the gang enhancement allegation as to each of those counts ...