Sufficient evidence supported defendant’s convictions for assault with a deadly weapon where he accelerated his vehicle towards another occupied car with the intent to frighten its occupants. After ingesting methamphetamine and alcohol, defendant led police on a car chase during which he targeted another car in an intersection, running the red light and accelerating as though intending to hit the other vehicle. The other driver braked, defendant swerved, and no collision occurred. He maintained on appeal that because he only intended to “freak out” the passengers in the other car, his conviction for using his car to commit an assault with a deadly weapon could not be sustained. Held: Affirmed, but remanded for resentencing. The test for assault is whether a reasonable person, viewing the facts as known to the defendant, would find that the act in question would directly, naturally, and probably result in the application of force to another person. (People v. Williams (2001) 26 Cal.4th 779.) Defendant’s attempt by physical menace to put others in fear of imminent serious bodily injury comes within this test and is an assault.
The court did not abuse its discretion in denying defendant’s request under Pitchess for personnel records where the defendant did not demonstrate that the records would support a defense to the pending charges. Bipialaka also argued the trial court abused its discretion by denying a Pitchess motion requesting personnel records of two deputies. The Court of Appeal disagreed. To show good cause for the requested discovery, a declaration in support of a Pitchess motion must propose a defense or defenses to the pending charges. According to trial counsel’s declaration, one deputy falsely testified that Bipialaka drove in “donuts” in an intersection, and both deputies falsely testified that Bipialaka yelled at other cars while holding a knife or shiny object out his window. Even if the deputies fabricated the testimony, the testimony had nothing to do with the alleged assault on a police officer (count 1), the fabricated actions took place after fleeing a peace officer while driving recklessly (count 2), and the testimony did not relate to the alleged assault with a deadly weapon (counts 3 and 4). Therefore, Bipialaka’s motion did not demonstrate good cause for an in camera review of the deputies’ personnel records.
The case must be remanded to allow the trial court to decide whether to strike defendant’s prior serious felony enhancement. Senate Bill No. 1393 amended Penal Code section 1385 to give trial courts the discretion to strike prior serious felony enhancements under Penal Code section 667, subdivision (a). Because defendant’s case was not yet final when the law took effect on January 1, 2019, the case was remanded for the trial court’s discretion as to the felony enhancement.
Defendant’s challenge to his fines and fees based on People v. Duenas (2019) 30 Cal.App.5th 1157, was forfeited due to the lack of an objection. In a supplemental brief, defendant challenged the fines and fees imposed pursuant to the Duenas case. Defendant conceded he did not object in the trial court. The court concluded this issue was forfeited due to the lack of an objection, citing People v. Frandsen (2019) 33 Cal.App.5th 1126.
The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/B285656.PDF