12 Cal. App. 5th 44
Cal. Ct. App. 5th2017Background
- On Jan 5, 2014, Garden Grove officers responded to a call that defendant Bac Tieng Nguyen was inside his home armed with a large knife/sword and making threats.
- Officers stood a couple feet outside the open front door; defendant stood about 10–15 feet inside, revealed a 12–15 inch knife, and said "shoot me."
- After officers ordered him to drop the knife and he pointed the blade and stepped toward them, Officer Olivo fired three rounds, wounding defendant.
- Defendant was charged with aggravated assault on a peace officer (Pen. Code § 245(c)) and resisting an executive officer (§ 69); convicted by a jury and sentenced to three years.
- Pretrial, defendant filed Pitchess motions seeking disclosure of officers’ personnel records; the trial court conducted in camera review and found nothing discoverable.
- Defendant appealed both the Pitchess ruling and the sufficiency of the evidence on the "present ability" element of assault; the Court of Appeal affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of appellate review of in camera Pitchess proceedings | Prosecution: trial court followed proper Pitchess procedure; record supports denial | Nguyen: requests independent review of documents to show error in denying disclosure | Court: reviewed sealed in camera transcript and unredacted motions; found no abuse of discretion in withholding records |
| Whether defendant had the "present ability" to commit battery from 10–15 ft (aggravated assault) | Prosecution: defendant’s display, positioning, step toward officers and wielding of knife gave capability to inflict injury | Nguyen: at 10–15 ft he lacked the required present ability as a matter of law | Court: "present ability" need not be instantaneous; positioning and steps taken can satisfy element; distance (10–15 ft) is a factual issue for jury, not a legal bar; conviction affirmed |
Key Cases Cited
- People v. Mooc, 26 Cal.4th 1216 (trial court should create a record of documents reviewed in camera in Pitchess proceedings)
- People v. Chance, 44 Cal.4th 1164 ("present ability" means capability to inflict injury on the occasion even if additional steps remain)
- People v. Yslas, 27 Cal. 630 (approaching within several feet with raised hatchet supported assault conviction despite no physical contact)
- People v. Myles, 53 Cal.4th 1181 (discusses scope of appellate review of Pitchess in camera proceedings)