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Name: People v. Golde
Case #: C053632
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 05/22/2008
Summary

Substantial evidence supported appellant’s conviction for violation of Penal Code section 245, subdivision (a)(1). Golde was convicted of multiple crimes against the victim, his girlfriend, including assault by means likely to produce g.b.i. for attempting to hit her with his car. On appeal, he argued that the evidence was insufficient to support a conviction for felony assault because no reasonable juror could conclude under the facts that he intended for the vehicle to strike the victim. The appellate court rejected the argument. Three witnesses testified that they saw the car accelerating towards the victim, and that the driver looked enraged. There was evidence that Golde drove the car toward the victim and repositioned the car toward the victim as she tried to move out of the way. No substantial evidence supoprted the trial court’s finding that Golde suffered a prior serious felony strike conviction for violation of section 246.3 because there was no evidence in the record that he personally used a firearm. Golde also contended that the trial court erred when it concluded that his prior 1990 conviction for negligent discharge of a firearm was a “strike” under sections 667 and 1170.12. The appellate court agreed, finding that because Golde admitted the prior conviction, and there was no admission or evidence that his prior conviction was based on personal discharge of a firearm (as opposed to being an aider and abettor). Remand was required in order to allow the prosecution an opportunity for retrial. The trial court did not err by failing to give instructions on the lesser included offense of simple assault. Golde also argued, as an alternative to his substantial evidence argument, that the trial court should have instructed the jury sua sponte on simple assault as a lesser included offense. The appellate court rejected the argument, finding that the record did not support an instruction on simple assault. It is “ludicrous” to suggest on this record that Golde committed only simple assault when he drove a motor vehicle toward the 83 pound victim and repositioned it when she tried to get out of the way. The trial court did not err by giving the following CALCRIM jury instructions: 101, 102, 104, 200, 220, 223, 225, 226, 300, 302, 315, 316, 318, 333, 355, and 875.