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People v. Nguyen

California Court of Appeals, Fourth District, Third Division

May 30, 2017

THE PEOPLE, Plaintiff and Respondent,
v.
BAC TIENG NGUYEN, Defendant and Appellant.

         Appeal 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.

          Kamala 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.

          OPINION

          MOORE, J.

         Defendant 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.[1] 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[2] 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.

         I

         FACTS

         On 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.”

         Officers 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.

         Officers 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.

         Defendant 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).

         Prior 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.

         A jury convicted defendant of the two counts charged, and the trial court sentenced him to three years in ...


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