People v. Nguyen, G052484

On Jan 5, 2014 officers Raney and Olivo responded to a report that defendant Bac Tieng Nguyen was threatening people while armed with a large knife/samurai sword.
Nguyen stood about 10–15 feet inside the open front door; officers were a couple feet outside the threshold. Officers ordered him to show his hands; he revealed a 12–15 inch knife, raised it to his throat, and said “shoot me.”
Officers unsuccessfully ordered Nguyen to drop the knife and approach; he pointed the knife at them and took a step toward them. Officer Olivo shot Nguyen three times; Nguyen was later charged with aggravated assault on a peace officer (Pen. Code § 245(c)) and resisting an officer (§ 69).
Defendant filed Pitchess motions seeking disclosure from the officers’ personnel files; the trial court conducted in camera review and found nothing discoverable.
A jury convicted Nguyen on both counts; he appeals arguing (1) the trial court erred in its Pitchess handling and (2) as a matter of law he lacked the “present ability” to commit a battery at the 10–15 foot distance.
The Court of Appeal independently reviewed the sealed in camera transcript and denied Pitchess relief, and held as a matter of law that distance did not preclude a finding of present ability; the judgment was affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Pitchess disclosure procedure	People: trial court properly performed in camera review and followed Mooc; no discoverable records exist	Nguyen: appellate court should independently review the actual documents reviewed in camera to determine error	Court: independent review of sealed in camera transcript and motions shows no abuse of discretion; no disclosure required
"Present ability" for assault under §245(c)	People: defendant’s positioning, weapon display, and step toward officers sufficed to show present ability even at 10–15 ft	Nguyen: 10–15 ft distance as a matter of law precludes present ability to commit battery with a knife	Court: distance is a factual question; present ability may exist despite steps remaining — conviction upheld

Pitchess v. Superior Court, 11 Cal.3d 531 (trial court in camera review procedure for officer personnel records) (Pitchess)
People v. Mooc, 26 Cal.4th 1216 (procedural requirements and appellate preservation for Pitchess review)
People v. Chance, 44 Cal.4th 1164 (definition of "present ability" — immediacy not required)
People v. Yslas, 27 Cal. 630 (assault sustained where defendant approached with raised hatchet despite victim escaping)
People v. Ranson, 40 Cal.App.3d 317 (assault upheld where additional steps were required before weapon could be used)
People v. Williams, 26 Cal.4th 779 (factfinder determines whether act will probably and directly result in application of force)
People v. Myles, 53 Cal.4th 1181 (discussion of appellate record sufficiency for Pitchess review)
People v. Byers, 6 Cal.App.5th 856 (appellate review of Pitchess determinations)