Marsh

*477 A jury convicted defendant Spencer Alan Marsh of assault with a deadly weapon ( Pen. Code, 1 § 245, subd. (a)(1), count 1) and vandalism (§ 594, subd. (a)(b)(1), count 2). The jury also found true the allegations in connection with count 1, that the deadly weapon used to commit this offense was a vehicle ( Veh. Code, § 13351.5 ), and that defendant personally used this dangerous and deadly weapon (§ 1192.7, subd. (c)(23)); and in connection with count 2, that the amount of property damage was $400 or more. The court sentenced defendant to the midterm of three years in prison on count 1, and stayed under section 654, subdivision (a) a two-year midterm sentence on count 2.

On appeal, defendant contends that there is insufficient record evidence to support his conviction of assault with a deadly weapon; that the court *478 prejudicially erred in instructing the jury on the meaning of the phrase "deadly weapon"; and that defense counsel violated his constitutional rights by allegedly conceding during closing argument that defendant was guilty of the vandalism charge in count 2. As we explain, we disagree with these contentions and affirm the judgment.

FACTUAL OVERVIEW

Alex P.,…

*765 Marsh intentionally severed the brake lines of the intended victim's vehicle, with the apparent intention that the victim drive the vehicle in that condition. Marsh contends that there is insufficient evidence to support his conviction for assault with a deadly weapon because there is no substantial evidence that he used the vehicle in a manner likely to produce great bodily injury, and that the trial court erred in instructing the jury on the meaning of the phrase "deadly weapon" by telling the jury that a "deadly weapon other than a firearm" could be an object that is "inherently deadly" (as opposed to one that "is used in such a way that it is capable of causing and likely to cause death or great bodily injury"). The majority concludes that there is sufficient evidence to support Marsh's conviction for assault with a deadly weapon because, as in People v. Russell (2005) 129 Cal.App.4th 776 , 28 Cal.Rptr.3d 862 , in which the defendant pushed another person into the path of an oncoming vehicle, Marsh used the victim's vehicle as a deadly weapon. The majority further concludes that because vehicles are not inherently deadly, the trial court erred in instructing the jury that…