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The People v. Bert Aynbinder

July 20, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
BERT AYNBINDER, DEFENDANT AND APPELLANT.



(Super. Ct. No. LF011460A)

The opinion of the court was delivered by: Nicholson , Acting P. J.

P. v. Aynbinder

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

This is a troubling case. Defendant Bert Aynbinder was charged with three counts of assault with a deadly weapon and by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)),*fn1 and single counts of felony reckless driving (Veh. Code, § 23105, subd. (a)) and hit and run with an injury (Veh. Code, § 20001), along with enhancements for personally inflicting great bodily injury (§ 12022.7, subds. (a), (d)). Following a jury trial, defendant was convicted of misdemeanor reckless driving (Veh. Code, § 23103) as a lesser included offense of the felony reckless driving count, and acquitted on all other counts, in spite of considerable evidence supporting defendant's guilt on all charges. The trial court sentenced defendant to 90 days in jail, with credit for time served, and imposed various fines and fees which were offset by defendant's excess presentence credits.

On appeal, defendant contends the trial court violated his statutory and constitutional rights to a speedy trial, there is insufficient evidence to support his conviction, and ineffective assistance of counsel. We affirm.

FACTS

On June 28, 2009, Sindy Mendoza was driving back to Sacramento from Lodi in her 1998 Honda Civic with her boyfriend Flacao Vazquez and her four-year-old daughter Brianna. Mendoza noticed a black Chevrolet HHR tailgating her as she drove in the fast lane of Interstate 5. At Vazquez's suggestion, she tapped her brakes to let the driver know he was too close. The HHR braked suddenly but did not back off, so Mendoza motioned for it to pass her, after which she pulled over into the right lane. The HHR pulled into the right lane, so Mendoza returned to the fast lane.

Mendoza lost sight of the HHR for a few minutes, but then came up to the HHR, which was now ahead of her. The HHR slowed down and waited for Mendoza to catch up with it; when the cars were side by side, Mendoza could see the driver, defendant, looking to her, smiling, and making an obscene gesture at her. Defendant's HHR then swerved towards Mendoza without touching her Civic, causing her to swerve away. When Mendoza got back to the center of her lane, Vazquez suggested she drive close to the car ahead of her to make it harder for the HHR to swerve at her.

Defendant's HHR came next to Mendoza's Civic a second time, where he again swerved at her. As a result, Mendoza swerved into the right lane to avoid the car in front of her, and then back into the fast lane, and eventually to the median, where she lost control of her car. The brakes did not seem to work, so she stepped hard on them, causing her steering wheel to lock. After the car slid and went into a circle, Vazquez pulled on the emergency brake. The Civic crossed into oncoming traffic; two cars drove by, but Mendoza's car was then hit by a semitruck.

Mendoza, Vazquez, and Brianna escaped from the Civic, which then caught fire. Brianna seemed lifeless, so Vazquez administered CPR to her. Brianna came around, but she sustained a severe injury to her intestine and pancreatic duct. As a result of her injuries, Brianna no longer feels full after she eats. Vazquez was uninjured, and Mendoza sustained cuts to her hands and pain in her back and right knee.

Mendoza estimated she drove at speeds between 55 to 70 miles an hour during the incident. Her car was in good working condition before the incident, and she did not have a blowout.

Lawrence Giovanetti was driving nearby at the time. Prior to the crash, he saw defendant's HHR swerving back and forth so violently he thought it might roll over. At the time of the crash, he told his daughter, "Holy cow, that car just got pushed off the road." Giovanetti then followed defendant's vehicle to get its license plate number.

Jeffrey Brown saw the HHR move to the right lane and the Civic come alongside it. The HHR then appeared to veer towards the Civic, but did not cross the line. The HHR repeated this 15 to 20 seconds later, this time slightly crossing the line. The Civic then slowed down.

Brown sped up and passed the HHR; he did not want it near him. The Civic was less than half a car length behind Brown. As Brown and the Civic started to pass the HHR, the HHR veered into the left lane towards the Civic. The Civic braked, traveled across the right lane into the shoulder, back into the left lane, and then into the median.

Brown identified defendant as the driver of the HHR. After defendant passed him, Brown followed to get the license plate number.

Defendant testified that the Civic cut him off. He signaled his intention to pass to the Civic by flashing his headlights; the Civic slowed sharply and moved, so defendant went to pass. Defendant then noticed the Civic's left front tire was flat, so he slowed down, activated his emergency flashers, flashed his headlights, and straddled the broken line between the fast and slow lanes. He then turned off his emergency flashers and pulled alongside the Civic to notify them about the tire. Next, defendant pulled in front of the Civic and again activated his emergency ...


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