(Santa Clara County Super. Ct. No. CC760264)
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Rene Joseph Rioux was convicted after court trial of two counts of assault with a deadly weapon (Pen. Code, § 254, subd. (a)(1)).*fn1 The court also found true allegations that defendant personally used a deadly and dangerous weapon in the commission of the offenses. (§§ 667, 1192.7.) The court dismissed a misdemeanor count of disturbing the peace (§ 415) and a misdemeanor count of public intoxication (§ 647, subd. (f)), and found defendant not guilty of child endangerment (§ 273a, subd. (a)). Defendant filed a motion for a new trial alleging that he received ineffective assistance of trial counsel and that his waiver of his right to a jury trial was not knowing or voluntary. After denying defendant's motion for a new trial, the court suspended imposition of sentence and placed defendant on probation for three years with various terms and conditions.
On appeal, defendant contends that the court abused its discretion when it denied his motion for a new trial. As we find no abuse of discretion, we will affirm the judgment.
Defendant was charged by consolidated information with two counts of assault with a deadly weapon with personal use of a deadly weapon, an SUV (§§ 245, subd. (a)(1), 667, 1192.7; counts 1 & 2); and one count each of child endangerment (§ 273a, subd. (a); count 3), misdemeanor disturbing the peace (§ 415, count 4), and misdemeanor public intoxication (§ 647, subd. (f); count 5.) On December 8, 2008, defendant appeared with retained counsel Jamie Harley before Judge Griffin Bonini, who granted the prosecutor's motion for the consolidation. Defendant then appeared with Harley before Judge Philip Pennypacker. He was arraigned on the consolidated information, he pleaded not guilty to all charges, and he waived his right to a jury trial.*fn2 The matter was continued to the following day, when Harley appeared before Judge Pennypacker without defendant and the matter was set for court trial on December 22, 2008.
On December 22, 2008, defendant appeared with counsel Jacklyn Bentley. The parties and the court agreed to have the defense case continued to January 7, 2009. The court ordered three defense witnesses to return on that date and defendant confirmed that he had waived his right to jury trial. Three witnesses then testified for the prosecution.
San Jose Police Officer Maria Solomon testified that she responded to an apartment on Camden Avenue on January 21, 2007, due to a report by Stacey*fn3 that her estranged husband would not leave and threatened to kick in the door. As the officer was looking for the apartment, she saw defendant coming out of the bushes nearby. He had a strong odor of alcohol, an unsteady gait, slurred speech, and a dry mouth. The officer questioned defendant about his alcohol consumption and he became agitated, so she placed him in handcuffs. Defendant said that he had been waiting over an hour and a half to pick up his son and that he had been drinking in his truck and in the bushes. The officer found 24 empty bottles of beer in defendant's pickup truck. The officer arrested defendant for being drunk in public and for trespassing.
Stacey testified that she and defendant had been married for 15 years and they have two children together: James, age 10, and Emily, age 15. Stacey also has an older daughter, Kayla, who is not defendant's child. Defendant has been physically and verbally abusive towards Stacey since before their marriage. He hit her about 10 or 15 times, and choked her about three times. She sustained some bruises here and there, but nothing severe. One time defendant served time in jail for domestic violence, but otherwise Stacey did not report the abuse because she did not want to disrupt her family. Stacey and defendant separated in December 2006. Stacey took James and Emily with her and they lived with Stacey's girlfriend, but Kayla stayed with defendant. Stacey and defendant had a verbal agreement to share custody of James and Emily.
Around 8:00 p.m. on January 21, 2007, Stacey was at her girlfriend's apartment on Camden Avenue when defendant called Stacey's cell phone. He said that he was there and he demanded that she bring James outside. He said that if she did not do so, he would kick the door in. Stacey did not tell defendant which apartment she was in, but she did tell defendant that she would not bring James outside because defendant was not waiting in the parking lot as she had asked him to. Defendant paced up and down looking for the apartment. About one hour later, Kayla called Stacey from outside the apartment and said that defendant told her to get out of his truck when she would not tell him which apartment Stacey was in. Stacey said that she would call the police if defendant did not leave. Defendant did not leave so she called the police. When officers arrived, Stacey saw defendant come out of the bushes, the officers speak to him, and arrest him.
Around 5:00 p.m. on March 14, 2007, Stacey drove to defendant's house, which is in the middle of a cul-de-sac, in order to drop off James and pick up Kayla. As James was getting out of the car, defendant came up to it, commented that Stacey was not wearing her wedding ring, and kicked the passenger side of the car. Stacey grabbed James and sped away. She let James out at the intersection and then turned and parked her car. Kayla called her to tell her that defendant had left and to ask her to come back to pick up James and her. Stacey returned to defendant's house and double-parked facing traffic and the intersection so that she could leave quickly. Kayla got into the front passenger seat, but James was still outside the car when defendant's car hit Stacey's car head on. Kayla's airbag deployed. Stacey hit the steering wheel and sustained an abrasion on her chest and a bruise on her leg. Defendant backed up, parked, and got out. Stacey grabbed her cell phone to call 911 and ran and hid. Eventually the police came and she told them what happened. Her car had to be towed and was considered totaled. Defendant has never apologized to her about the incident or told her that it was an accident.
Kayla testified that she is 19 years old and that defendant is her stepfather. She never saw Stacey and defendant hit each other; they did not argue in front of their children. On January 21, 2007, defendant drove her to the apartment where her mother was staying but her mother would not open the door because defendant was there. Stacey did not want defendant to know where she was staying. Kayla waited outside for about one-half hour while defendant talked to Stacey on the phone about James. Kayla did not see defendant drinking ...