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Name: People v. Ngyuen
Case #: G052484
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 05/30/2017

Defendant holding large knife had “present ability” to inflict injury on police officers who were standing 10 to 15 feet away. Police responding to a 911 call approached the open door of defendant’s father’s residence and saw defendant inside. Defendant was approximately 10 to 15 feet away and had a large knife in one hand, which he refused to drop. After defendant pointed the knife in the direction of the officers and took a step towards them, the officers shot him. Defendant was convicted of aggravated assault on a police officer (Pen. Code, § 245, subd. (c)) and resisting an executive officer (Pen. Code, § 69). On appeal, defendant argued that as a matter of law he could not be found guilty of aggravated assault because he did not have the “present ability” to strike the officers with the knife, as he was standing too far away. Held: Affirmed. Aggravated assault on a peace officer requires proof that the defendant had the present ability to commit a violent injury. (Pen. Code, §§ 245, subd. (c), 240.) Immediacy is not required. Rather, “when a defendant equips and positions himself to carry out a battery, he has the ‘present ability’ required . . . if he is capable of inflicting injury on the given occasion, even if some steps remain to be taken, and even if the victim or the surrounding circumstances thwart the infliction of injury.” (People v. Chance (2008) 44 Cal.4th 1164, 1172.) The court disagreed with defendant’s argument that the rule in Chance is limited to cases involving loaded guns. The issue in Chance concerned the meaning of the phrase “present ability” as applied to assaults generally, not as to any particular weapon. The California Supreme Court also cited cases discussing other types of weapons, such as swords and hatchets, with approval. (See People v. Yslas (1865) 27 Cal. 630.) The court here declined to hold that a person in defendant’s situation will never, as a matter of law, have the present ability to commit a battery.

Trial court did not abuse its discretion in finding that there were no discoverable documents responsive to defendant’s Pitchess motions. Prior to trial, defendant filed two Pitchess motions seeking discovery of certain records from the two police officers’ personnel files. The trial court conducted an in camera review of the records and found there was nothing to disclose. On appeal, defendant requested that the Court of Appeal independently review the documents reviewed in camera by the trial court in conjunction with his Pitchess motions to determine whether the trial court erred. The Court of Appeal concluded there was no error. “In order to preserve a defendant’s ability to obtain appellate review of the denial of a Pitchess motion, the trial court should make a record of the documents it reviewed in camera, either by photocopying the documents, preparing a written list of the documents reviewed, and/or stating on the record the documents it reviewed.” (People v. Mooc (2001) 26 Cal.4th 1216, 1218.) Here, the trial court described the documents it reviewed on the record. The Court of Appeal independently reviewed the sealed reporter’s transcript of the in camera proceedings as well as the sealed unredacted version of the defendant’s motions and determined the court did not abuse its discretion in determining there was no information to disclose. [Editor’s Note: Justice Bedsworth filed a concurring opinion expressing concern that California law seems to provide appellate review of the procedures followed during an in camera Pitchess hearing, but not the merits of the trial court’s decision, and urging trial courts to provide copies of the documents reviewed during in camera Pitchess hearings rather than a list or description of the documents.]

The full opinion is available on the court’s website here: