How has the jury been instructed on the crime of assault with a deadly weapon?

Furthermore, the court properly instructed the jury on the crime of assault with a deadly weapon by instructing on the elements of the crime. The trial court did not abuse its discretion in merely telling the jury, in response to jury question No. 4, that it was for the jury to decide whether defendant could be found guilty of assault with a deadly weapon by use of a weapon other than a bat. The court was not required to instruct regarding the possibility of finding defendant used a deadly weapon other than a bat or giving a unanimity instruction, because such instructions are normally required only if supported by substantial evidence. Instructions on unsupported theories should not be given to the jury. (People v. Marshall (1997) 15 Cal.4th 1, 39-40.) The general rule is

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that in a criminal case the trial court must instruct on the "'principles of law relevant to the issues raised by the evidence [citations] and has the correlative duty "to refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues." [Citation.]'" (People v. Barker (2001) 91 Cal.App.4th 1166, 1172; People v. Saddler (1979) 24 Cal.3d 671, 681.)

Here, the record shows the trial court and counsel gave jury question No. 4 serious consideration and reasonably agreed that, instead of risking inappropriately influencing the jury's factual findings, it would be best for the trial court to tell the jury that it was for the jury to decide whether defendant could be found guilty of assault with a deadly weapon by using something other than a bat. The response was not misleading, unresponsive, or legally incorrect. (United States v. Frega (9th Cir. 1999) 179 F.3d 793, 810.) The jury instructions as a whole provided the jury with sufficient direction on deciding count 1 and additional instruction was not necessary. The trial court was not required to respond to jury question No. 4 by telling the jury it was limited to considering only a bat as the deadly weapon, particularly when the evidence and argument made clear that this was the prosecution's sole theory, and there was no evidence supporting a finding anything other than a bat was used as the deadly weapon during the assault.