In People v. Aledamat (2019) 8 Cal.5th 1, 15-16 the CSC cautioned judges regarding use of the term “inherently deadly weapon” with regard to the substantive offense of assault with a deadly weapon and enhancement allegations regarding deadly weapons:
As this case demonstrates, the standard instructions on assault with a deadly weapon and use of a deadly and dangerous weapon are problematic. (See CALCRIM Nos. 875, 3145.) They do not define what is an inherently deadly weapon. Worse, without modification, they provide the jury with the “inherently deadly” theory even in those cases (i.e., most of them) in which the weapon is not inherently deadly as a matter of law. We suggest the instructions be modified to avoid these problems in the future.
In most cases, the inherently deadly language is inapplicable, for most objects are not inherently deadly even if they may be used in a way that makes them deadly. The inherently deadly language is also generally unnecessary. For the most part, those objects that are designed for use as a deadly weapon will be also used in a way that makes them deadly weapons. Accordingly, the standard instruction might be improved by simply deleting any reference in the usual case to inherently deadly weapons.
But because, under current law, some objects, such as dirks and blackjacks, are inherently deadly, instructing on that theory might be appropriate in some cases. (But see fn. 5.) If the prosecution believes the weapon used in a given case is inherently deadly, and it believes modifying the instruction would be useful, it may request the court to add that theory of the case to the instructions. On such a request, the court should consider whether the evidence would support a finding that the weapon is inherently deadly. If so, the court would have discretion to instruct on that theory. If it does so, however, it should also define what is meant by inherently deadly, i.e., an object that is designed for use as a deadly weapon. [Citation.]
CALCRIM Bench Notes for CC 875 and 1345 do not cite Aledamat but CALCRIM made modifications in light of People v. Perez (2018) 4 Cal.5th 1055, 1065 which states:
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. 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. [Citations.]”
The Bench Notes also state:
Give the bracketed phrase “inherently deadly” and give the bracketed definition of inherently deadly only if the object is a deadly weapon as a matter of law. (People v. Stutelberg (2018) 29 Cal.App.5th 314, 317–318.)
However, CALCRIM has not responded to a passage in Aedamat that questioned the need to ever instruct on inherently dangerous weapons:
For the most part, those objects that are designed for use as a deadly weapon will be also used in a way that makes them deadly weapons…. [Footnote 5.] In light of this, it may be asked whether a policy exists for treating inherently deadly weapons differently from other objects capable of being used as a deadly weapon, particularly since the distinction is not reflected in the text of section 245. Because the facts and arguments of this case do not present the question, we leave it for another day.
People v. Aledamat (2019) 8 Cal.5th 1, 16 fn. 5