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Name: People v. Russell
Case #: B171492
Court: CA Court of Appeal
District 2 DCA
Division: 7
Opinion Date: 05/23/2005
Subsequent History: rvw. den. 9/7/05

A defendant who intentionally pushes another person into the path of an oncoming vehicle has used that vehicle as a deadly weapon within the meaning of Penal Code section 245(a)(1). The defendant argued on appeal that insufficient evidence supported his conviction on the theory of assault with a deadly weapon because he did not “use” the car as a weapon, meaning that he did not have control or operational use of the car at the time. The appellate court rejected this argument, citing case law holding that forcefully pushing a victim into the path of a moving object constitutes “using” that object as a weapon. Defendant also argued that the prosecution failed to prove the intent element of aggravated assault beyond a reasonable doubt, because the evidence was insufficient to show that defendant knew a car was approaching. The Court of Appeal rejected this argument, noting that the evidence established that the car that hit the victim was an older diesel Mercedes, known to be exceptionally noisy, and thus the jury could have reasonably concluded that defendant had heard the vehicle approaching even though he was not facing in its direction at the time that he pushed the victim into the street. Finally, the court rejected the argument that the evidence was insufficient to establish a violation of section 245(a)(1) under the theory that the act was likely to result in great bodily injury, noting that the street was a four-lane street in a busy commercial area.