California Court of Appeals, Fourth District, Third Division
from a judgment of the Superior Court of Orange County No.
14WF0032, Cheri T. Pham, Judge. Affirmed.
Christopher Love, under appointment by the Court of Appeal,
for Defendant and Appellant.
D. Harris, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, Meagan J. Beale and Kelley Johnson, Deputy
Attorneys General, for Plaintiff and Respondent.
Bac Tieng Nguyen appeals following his conviction for
aggravated assault on a police officer (Pen. Code, §
245, subd. (c)) based on a situation in which he wielded a
large knife and took a step toward police officers after the
officers ordered him to put the knife down. He argues
that the “present ability” element of the crime
was missing, as a matter of law, given the 10- to 15-foot
distance between him and the officers at the time of the
incident. He also requests that we independently review the
documents reviewed in camera by the trial court in
conjunction with a Pitchess motion he filed,
which sought to obtain information from confidential police
officer personnel records. Our independent review reveals no
error, and, thus, we affirm the judgment.
January 5, 2014, defendant's father called 9-1-1 to
report that there was a man at his house who was making
threats while carrying a large knife or samurai sword. Garden
Grove Police Officers John Raney and Joshua Olivo responded
to the scene, and learned upon their arrival that the
sword-wielding man was defendant. Defendant's father, who
was standing in the front yard when the officers arrived,
appeared stressed and nervous. He told the officers that
defendant was inside the house and was “loco.”
Raney and Olivo approached the wide-open front door of the
residence and stopped a couple of feet away from the
threshold. Defendant came around a corner inside the house
and stood approximately 10 to 15 feet away from the officers,
in the area located straight inside the front door. Because
defendant was facing in such a way that the officers could
only see his right side, Officer Olivo told defendant to show
both his hands “or [he was] going to shoot
[defendant].” Defendant lifted his left hand to reveal
a knife that he was carrying which was about 12 to 15 inches
in length. He raised the knife to his throat and said to the
officers, “shoot me.” Upon seeing the knife,
Officer Olivo removed his gun from its holster.
Raney and Olivo unsuccessfully attempted to get defendant to
drop the knife and walk towards them. Instead, defendant
moved the knife away from his neck, pointed it in the
direction of the officers and took a step toward them.
Fearing for Officer Raney's and his own safety, Officer
Olivo unholstered his gun and fired three rounds toward
defendant, hitting him and causing him to fall to the floor.
The officers approached defendant, handcuffed him and
rendered first aid to him while awaiting the paramedics.
was charged with one felony count of aggravated assault on a
peace officer (§ 245, subd. (c)), and one misdemeanor
count of brandishing a deadly weapon (§ 417, subd.
(a)(1)). The information was later amended to eliminate the
second count and replace it with one felony count of
resisting an executive officer (§ 69).
to trial, defendant filed two Pitchess motions,
seeking discovery of certain records from Officer Raney's
and Officer Olivo's personnel files. The motions sought
information relating to the officers' credibility and
honesty, past acts involving moral turpitude or use of
excessive force, and any discipline imposed on the officers
in relation to the incident involving defendant. The trial
court found it appropriate to do an in camera review of the
documents potentially responsive to each motion in order to
determine if any were discoverable, in full or in part. Based
on its in camera reviews, the court concluded there was
nothing to disclose.
convicted defendant of the two counts charged, and the trial
court sentenced him to three years in ...