People v. Aledamat (2019) 8 Cal.5th 1 a divided court held that the same standard of prejudice which applies to the misdescription or omission of elements of the charge applies to alternate theory error: i.e., instruction on both a correct and incorrect theory of guilt: “the same Chapman analysis of harmless error applies to alternative-theory error as applies to other kinds of misdescription of the elements.” (Id. at 11.)
Notwithstanding the fact that cases like Martinez and Chiu focused on what the jury “actually did … [they] were only a specific application of the more general reasonable doubt test stated in cases like Neder [Neder v. United States (1999) 527 U.S. 1, 17-18] and Merritt. [People v. Merritt (2017) 2 Cal.5th 819, 830-32.]” (Aledamat at 12.)
Thus, the majority opinion does not conflict with the dissenting opinion’s view that:
Like the United States Supreme Court, to date we’ve found instructional error harmless only when we can conclude “beyond a reasonable doubt” either that the jury necessarily relied on a valid legal theory [Citation] or that the element omitted or misdescribed “was uncontested and supported by overwhelming evidence , such that the jury verdict would have been the same absent the error” [Citing and quoting Neder, Merritt [finding error harmless where the defense expressly conceded a robbery occurred and there was overwhelming video evidence of the only contested issue]; People v. Canizales (2019) 7 Cal.5th 591, 616 [examining both the “strong” and the “conflicting evidence” on a contested issue and noting “both the prosecutor’s closing argument and the attempted murder instruction” had “the potential to cause confusion”]; People v. Mil (2012) 53 Cal.4th 400, 417 [reversing burglary and robbery special circumstances because the defendant “contested whether he acted with reckless indifference to human life” and “the record support[ed] a reasonable doubt as to that element”].)
In fact, the majority ultimately finds harmless error by utilizing the Neder/Merritt analysis; i.e., whether the erroneous theory was contested and supported by overwhelming evidence:
“…the prosecutor stated that the box cutter was inherently deadly because “you wouldn’t want your children playing with” it, without further explaining the term. But no one ever suggested to the jury that there were two separate ways it could decide whether the box cutter was a deadly weapon. Defense counsel … never argued that, if [the defendant] did assault the victim with the box cutter, the box cutter was not a deadly weapon. Although defense counsel did not expressly concede that the box cutter was a deadly weapon, he did not contest the point.”[Emphasis added.] [Para] Contesting the point would have been futile based on the record here. A box cutter is not inherently deadly because it is not designed for that purpose. But if used to assault someone, i.e., used as a weapon, a box cutter is potentially deadly even if not designed for that purpose. [Citation.] … Counsel could readily believe it would be pointless for him to argue that even if (contrary to the argument counsel did make) the jury found defendant assaulted the victim with the box cutter, it was not a deadly weapon. This is particularly so in light of defendant’s statement, ‘I’ll kill you.’ ” established that the jury would not have sided with the defendant even if he had contested it. (Aledamat, 8 Cal.5th at 14.)
The above is textbook Neder/Merritt analysis — the error was harmless beyond a reasonable doubt because the erroneous theory was not contested by the defense overwhelming evidence. As the Court of Appeal put it: “[The Neder] test would certainly be satisfied here, where defendant never disputed that the box cutter was being used as a deadly weapon and where the evidence of such use is overwhelming.” (Aledamat Court of Appeal Opn. 20 Cal.App.5th at p. 1154.)
In sum, even though the Aledamat majority rejected the stricter standard argued for by the defendant, it did not move away from the Neder/Merritt standard either.