(Monterey County Super. Ct. No. SS082887A)
The opinion of the court was delivered by: Bamattre-manoukian, Acting P.J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Isaac Scott was convicted after court trial of misdemeanor assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)),*fn1 and misdemeanor reckless driving (Veh. Code, § 23103, subd. (a)). On February 1, 2010, the court suspended imposition of sentence and placed defendant on probation for three years with various terms and conditions, including that he serve a 40-day jail term with six actual days credit. Defendant's sole contention on appeal is that he is entitled to additional custody credits under the version of section 4019 in effect on his date of sentencing. In response to our request for supplemental briefing, defendant informed us that he had requested and been granted the presentence credits he sought by the trial court. We will therefore dismiss the appeal as moot.
Defendant was arrested for felony assault with a deadly weapon (§ 245, subd. (a)(1)) on November 28, 2008, and remained in custody until he made bail on December 3, 2008. He was charged by information filed April 8, 2009, with one count of felony assault with a deadly weapon, a vehicle. On June 4, 2009, the information was orally amended to charge a misdemeanor assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)) in count 1 and to add a charge of misdemeanor reckless driving (Veh. Code, § 23103, subd. (a)) in count 2. Defendant then waived his right to a jury trial. The court trial was held on January 28, 2010.
In the early afternoon of Friday, November 28, 2008, Robert Meadows was driving north on Highway 101 when he witnessed a two-vehicle collision north of Salinas. One of the vehicles involved in the collision was a Ford Explorer that Meadows had followed since King City. About five miles south of the collision, a black Volvo erratically came up behind Meadows and stayed close to his rear bumper while he was in the left lane. After Meadows passed a car that was in the right lane, the Volvo sped up, swerved into the right lane a few feet in front of the passed car, and passed both Meadows and the Explorer on the right. The Volvo then returned to the left lane and its brake lights came on. The Explorer's brake lights also came on, and it moved over to the right lane. Meadows dropped back. The Volvo accelerated and pulled away from the Explorer and Meadows until it was slowed by a silver car in front of it. The Explorer caught up to and passed the Volvo on the right. The silver car moved over into the right lane and the Explorer's turn signal came on. When the Explorer was halfway into the left lane, the Volvo sped up, veered to the left over the line, then swerved back to the right and hit the rear quarter panel of the Explorer. The Explorer went into a spin, hit the center barrier, and spun around in a circle two times.
California Highway Patrol (CHP) Officer Jason Ivy investigated the November 2008 collision. The Volvo sustained right front fender damage and the Explorer sustained left rear damage. Defendant was the driver of the Volvo. A Mr. Brown was the driver of the Explorer. Defendant appeared to be enraged when the officer spoke to him. When defendant was asked if he purposefully steered his car into the Explorer, defendant said, "I did." After Officer Ivy spoke to Brown, he placed Brown under arrest for driving under the influence of alcohol.
William Carneal, a traffic accident reconstructionist, testified on behalf of defendant that he visited the scene of the accident on December 4, 2008. Based on Carneal's investigation, he determined that the area of impact between the Volvo and the Explorer was in the left lane when the Explorer was approximately three or four feet over the lane dividing line. Carneal also determined that the Explorer was moving faster than the Volvo and to the left at the time of the collision. After the collision, the Explorer skidded out of control to the left. The Volvo sustained damage to its right front quarter panel consistent with it having been side-swiped by the Explorer. Thus, in Carneal's opinion, the physical evidence does not corroborate Meadows's version of the collision.
Defendant testified in his own defense that he was driving a Volvo northbound on Highway 101 around 2:45 p.m. on November 28, 2008. He was in the right lane when he passed a car that was behind the Explorer. As he tried to pass the Explorer, he caught up to within six feet of the car in front of him and had to slow down. When he did, the Explorer also slowed down. Defendant accelerated, turned on his turn signal, moved over in front of the Explorer and pulled away. The Explorer then accelerated, moved over to the right lane, and started to pass defendant. A car that had been in the left lane in front of defendant moved over into the right lane. The Explorer did not slow down, but swerved into the left lane. Defendant stepped on the brake and turned to the right in an attempt to avoid hitting either defendant or the center divider. He has no recollection of swerving left before turning to the right. He did not intend to hit the ...