People v. Bipialaka ( 2019 )

Filed 4/17/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B285656
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. GA099730
v.
BOMATAMUNOPIRI A.
BIPIALAKA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Jared D. Moses, Judge. Affirmed and remanded
with directions.
Valerie G. Wass, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy
Attorney General, and Stephanie A. Miyoshi, Deputy Attorney
General, for Plaintiff and Respondent.
After using methamphetamine, Bomatamunopiri Bipialaka
led police on a car chase. During the chase, he targeted another
car in an intersection. He ran the red light and sped at the car
without braking because “I was just going crazy and felt like
freaking them out.” Bipialaka swerved in the nick of time and
hurtled away.
Bipialaka appeals his convictions for using his car in an
assault with a deadly weapon. He also asks us to review
proceedings under Pitchess v. Superior Court (1974) 11 Cal. 3d
531 and to correct clerical errors in the abstract of judgment.
Bipialaka requests remand so the trial court can exercise
discretion about dismissing a sentence enhancement, based on
Senate Bill No. 1393 (2017–2018 Reg. Sess.). In supplemental
briefing, Bipialaka argues fees must be reversed and a restitution
fine stayed in light of People v. Dueñas (2019) 30 Cal.App.5th
1157 (Dueñas).
We remand for resentencing and direct the trial court to
prepare a corrected abstract of judgment. We otherwise affirm.
I
We state the facts in favor of the prevailing trial party.
After a weeklong shoot, cinematographer Bipialaka used
drugs at a motel and then drank at a bar. He felt “real jittery,”
“very clammy and jittery and I don’t know, my—my heart was
moving in a different way.” Bipialaka then set off for a hospital
because “I’ve done this drug before in the past and I’ve had
episodes before where, you know, I passed out.” Bipialaka could
“just feel my heart beating and I was pretty much panicked at
that point in time. I was pretty much in a panic mode, and just
making irrational decisions.”
2
Bipialaka then made a hood-like mask: “After awhile
adrenaline took over and I just went crazy. I don’t know what’s
up with the hood. I just felt like fuck it. I’m going to go off. So I
took a shirt and cut some eye holes in it and made a mask to
freak people out.”
A deputy sheriff saw Bipialaka speed by and gave chase.
Bipialaka drove towards a red light “at a fast speed.” Bipialaka
ran the red light and entered the intersection “really quick,” with
no braking.
Bipialaka deliberately aimed at a couple in a car that had
entered the intersection on a green light. The other driver saw
Bipialaka coming at him wearing a mask and yelling threats.
That driver stopped, fearing for his safety. Had he not stopped,
there would have been a crash. Driving at high speed, Bipialaka
came “very near” to the other car—“really close to us.” Bipialaka
swerved and barely avoided a collision. The close call left the
driver and passenger in the target car afraid and shaken for
hours.
Bipialaka purposely drove at the couple in the car because
“I was just going crazy and felt like freaking them out.”
Bipialaka accelerated out of the intersection. Police
eventually cancelled this chase for safety reasons.
The jury convicted Bipialaka of four counts: one count of
assault upon a police officer (Pen. Code, § 245, subd. (c), count 1),
one count of fleeing a pursuing peace officer’s motor vehicle while
driving recklessly (Veh. Code, § 2800.2, count 2), and two counts
of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1),
counts 3 & 4).
Bipialaka challenges only his convictions for assault with a
deadly weapon upon the two people in the target car.
3
II
Bipialaka argues insufficient evidence supports his two
convictions for assault with a deadly weapon. Citing People v.
Williams (2001) 26 Cal. 4th 779, 782, he says these convictions
violate his due process rights because driving through a red light
did not probably and directly result in the application of force to a
person.
Bipialaka’s argument is incorrect. Traditionally, cars can
be deadly weapons. This law is not new. (E.g., People v.
Mortensen (1962) 210 Cal. App. 2d 575, 577–584, see People v.
Perez (2018) 4 Cal.5th 1055, 1065 [listing vehicle cases], cf. Model
Pen. Code & Commentaries (1980) com. 5 to § 211.1, p. 191 [“[A]n
auto is not normally a deadly weapon. . . . But if an actor
purposely aims his car at a pedestrian, he must know perfectly
well that such use of the automobile is capable of grave harm. In
that case, therefore, a car fits the definition of a deadly
weapon.”].)
Bipialaka invokes the Williams decision. That case governs
here. Its test for assault is whether a reasonable person, viewing
the facts known to Bipialaka, would find that the act in question
would directly, naturally, and probably result in physical force
being applied to another, i.e., a battery. (People v. Williams,
supra, 26 Cal.4th at pp. 787–788 & fn 3.)
Under Williams, Bipialaka committed assault. The
Williams analysis focuses on the facts Bipialaka knew. He knew
he had donned the mask for the purpose of scaring others. He
likewise knew he opportunistically targeted people in another car
to the same end. Bipialaka knew his purpose was to use his
masked face and his speeding car to freak them out. Targeting a
car this way would directly, naturally, and probably result in
4
physical force being applied to the target car because a high
speed collision applies force to the victim car and its occupants.
These facts, all known to Bipialaka, satisfy the Williams test for
assault.
Bipialaka protests he was not attempting to injure anyone
and was just driving recklessly to flee police when he
inadvertently encountered the couple in the car in the
intersection. He underlines he swerved to avoid a crash.
This argument ignores the evidence Bipialaka acted with
purpose. His purpose was to frighten others with physical
menace. His physical menace threatened his victims with bodily
injury. That threatened injury was serious and imminent.
Bipialaka was not merely reckless. He had purpose of a
particular kind. That purpose moved his culpability beyond
recklessness.
Bipialaka’s swerve does not alter the analysis. Assault
does not require an intent to cause an application of physical
force or substantial certainty that force will be applied. (People v.
Aznavoleh (2012) 210 Cal. App. 4th 1181, 1186–1187.) As he bore
down on his target, Bipialaka achieved his purpose of scaring his
victims into believing a serious collision was imminent. He
attempted by physical menace to put others in fear of imminent
serious bodily injury. That is assault under Williams.
Bipialaka’s case is easier than Williams. The evidence
against Bipialaka was stronger than the evidence against
defendant Lebarron Keith Williams in Williams, because the
Williams case contained a crucial ambiguity not present here.
The ambiguity is about whether the threat of physical injury was
or was not imminent.
5
The imminence of the threat is significant in the law of
assault. (Cf. People v. Williams, supra, 26 Cal.4th at p. 786 [An
assault is an act done toward the commission of a battery and
must immediately precede the battery. Assault occurs when the
next movement would, at least to all appearance, complete the
battery.].)
The ambiguity in Williams concerned the imminence of the
threat. Williams used a shotgun to blow out a truck tire while
his romantic rival crouched on the other side of the truck. (People
v. Williams, supra, 26 Cal.4th at pp. 782–783.) The shotgun blast
hit the car but not the rival. Williams called it a “warning shot.”
(Id. at pp. 782, 790.)
This “warning shot” description created the ambiguity
about imminence. Did Williams threaten imminent physical
injury? If Williams was aiming for the rival and missed only
because the truck blocked the shot, then Williams did intend
injury that was imminent: he meant to shoot the man. But if his
warning shot was simply a caution for the future—stay away
from that woman or else—then Williams was warning the rival to
alter indefinite future plans. Physical injury is not imminent
when a threat relates only to the indefinite future.
This case has the certainty Williams lacked. Without
doubt, Bipialaka’s threat was imminent. He raced across the
intersection without braking. Bipialaka’s relationship with his
victims was immediate and immediate only: it had no future.
Under Williams, then, we must affirm because the case against
Bipialaka is stronger and less ambiguous than was the case
against Williams.
Bipialaka cites cases predating Williams (e.g., People v.
Wolcott (1983) 34 Cal. 3d 92, 99) but we must follow governing
6
law from Williams, which sought to clarify past law. (See
Williams, supra, 26 Cal.4th at pp. 787 [because past language
may have been confusing, “we now clarify the mental state for
assault”] & 782 [“Today, we once again clarify the mental state
for assault . . . .”].) Indeed, our Supreme Court has been working
on this issue since 1856. (People v. Colantuono (1994) 7 Cal. 4th
206, 213 [citing People v. McMakin (1856) 8 Cal. 547 after stating
that “[d]eciphering the requisite intent for assault and assault
with a deadly weapon has been a recurring task for this court”].)
Bipialaka also quotes People v. Ervine (2009) 47 Cal. 4th
745, 805, which contains the statement that an “intent to frighten
or mere reckless conduct is insufficient.” This quotation,
however, is from a 1996 trial court jury instruction, not from a
Supreme Court holding modifying Williams. (Id. at pp. 753, 805.)
The 2001 Williams decision governs this case.
Our application of Williams meshes with longstanding and
prestigious authority that is persuasive. In the words of the
Model Penal Code, Bipialaka “attempt[ed] by physical menace to
put another in fear of imminent serious bodily injury.” (Model
Pen. Code, § 211.1, subd. (1)(c).) That is assault.
Looking to the assault provision in the Model Penal Code is
valid because this provision explains the Williams holding
simply, clearly, and precisely.
California courts routinely turn to the Model Penal Code
for guidance and clarity. (E.g., People v. Clark (2016) 63 Cal. 4th
522, 617–618 & fn. 73 [noting the “Model Penal Code definition of
recklessness has been recognized in other areas of California
criminal law” and applying it to determine whether defendant
showed reckless indifference to human life]; In re Joseph G.
(1983) 34 Cal. 3d 429, 433 [observing “no state, including
7
California, has a statute making a successful suicide a crime, nor
does that Model Penal Code recognize suicide as a crime” and
analyzing the Model Penal Code drafters’ rationale for not
attaching criminal liability to suicide attempts].)
Courts consult the Model Penal Code because it offers
precision in a field long plagued by imprecision. Dean Sanford H.
Kadish, the renowned scholar of criminal law, observed the
Model Penal Code’s “mens rea proposals dissipated these clouds
of confusion with an astute and perspicuous analysis that has
been adopted in many states and has infused thinking about
mens rea everywhere. . . . [A]s a result of the [Model Penal]
Code, . . . [t]he fog that surrounded centuries of controversy over
the requirement of mens rea has been lifted, one hopes,
permanently.” (Kadish, Fifty Years of Criminal Law: An
Opinionated Review (1999) 87 Cal. L.Rev. 943, 952, 981.)
Esteemed Judge Gerard E. Lynch of the Second Circuit
Court of Appeals, who is also the Paul J. Kellner Professor of Law
at Columbia Law School, writes that “all criminal law scholars
understand [that] the Model Penal Code is one of the great
intellectual accomplishments of American legal scholarship of the
mid-twentieth century.” (Lynch, Revising the Model Penal Code:
Keeping It Real (2003) 1 Ohio State J. Crim. Law 219, 219.)
Distinguished scholar Peter Low doubts “there are very
many teachers of the substantive criminal law who do not take
the Model Penal Code as their major text, or at least as one of
their major texts.” (Low, The Model Penal Code, The Common
Law, and Mistakes of Fact: Recklessness, Negligence, or Strict
Liability? (1988) 19 Rutgers Law J. 539, 540.)
“The Model Penal Code’s influence has not been confined to
the reform of state codes. Thousands of court opinions have cited
8
the Model Penal Code as persuasive authority for the
interpretation of an existing statute or in the exercise of a court’s
occasional power to formulate a criminal law doctrine.”
(Robinson & Dubber, The American Model Penal Code: A Brief
Overview (2007) 10 New Crim. Law Rev. 319, 327.)
This provision of the Model Penal Code is persuasive
authority. Its formulation is from the common law. (Model Pen.
Code & Commentaries (1980) introductory note, p. 172 [“Section
211.1 effects a consolidation of the common-law crimes of
mayhem, battery, and assault”].) It meshes with California’s
statutory definition of simple assault, which governs here and
which also is from the common law. (See Pen. Code, § 240 [“An
assault is an unlawful attempt, coupled with a present ability, to
commit a violent injury on the person of another.”]; People v.
Williams, supra, 26 Cal.4th at p. 786 [determine the meaning of
“attempt” in Pen. Code § 240 by looking to the common law
definition of assault].)
This provision of the Model Penal Code is consistent with
People v. Williams. It simplifies and clarifies analysis and is true
to California law. It further illustrates that substantial evidence
supports Bipialaka’s convictions for assault with a deadly
weapon.
III
Bipialaka also requests we review the trial court’s
December 21, 2016 in camera proceedings to determine whether
the trial court abused its discretion in finding no discoverable
documents. The People do not object. Bipialaka sought the
personnel records of a particular deputy. The trial court
conducted a hearing on fabrication of evidence and on writing
9
false police reports. After reviewing the documents in camera,
the trial court concluded there was no discoverable information.
We have reviewed the sealed hearing transcript and
conclude the trial court properly followed Pitchess procedures.
The court placed the custodian of records under oath and a court
reporter transcribed the proceedings. It ordered the transcript
sealed and made a detailed record of the documents it reviewed.
(See People v. Mooc (2001) 26 Cal. 4th 1216, 1229 [the trial court
should make a record of the documents it examined before ruling
on the Pitchess motion and can do so by describing them on the
record].) The court did not abuse its discretion in holding there
was no evidence to be disclosed.
IV
Bipialaka also contends the trial court abused its discretion
by denying his second Pitchess motion requesting personnel
records of two additional deputies. According to Bipialaka’s
counsel in a declaration accompanying the motion, one deputy
falsely testified that Bipialaka drove in “donuts” in an
intersection and both deputies falsely testified that Bipialaka
yelled at other cars while holding a knife or shiny object out his
window. Bipialaka contends there was good cause for discovery
pertaining to the fabrication of evidence, false police reports,
perjury, and dishonesty.
The trial court denied the motion at oral argument without
holding an in camera hearing. The court found that the
testimony at issue was “not a critical part” of Bipialaka’s charges.
To show good cause for the requested discovery, defense
counsel’s declaration in support of a Pitchess motion must
propose a defense or defenses to the pending charges. (Warrick v.
Superior Court (2005) 35 Cal. 4th 1011, 1024.) A defendant must
10
establish not only a logical link between the defense proposed
and the pending charge but also must explain how the discovery
would support a defense or how it would impeach the officer’s
version of events. (Id. at p. 1021.)
Bipialaka’s motion did not propose a defense to the pending
charges. Even if the deputies fabricated the testimony (and there
is no evidence they did), the testimony had nothing to do with
assault on a police officer (count 1). The testimony did not relate
to fleeing a pursuing peace officer’s motor car while driving
recklessly (count 2). While driving in “donuts” and waving an
object could relate to reckless driving, these events were after the
chase. Further, the Pitchess motion did not deny Bipialaka’s
reckless driving during the pursuit, which included speeding,
unsafe lane changes, and driving through red lights. Falsified
evidence regarding “donuts” and waving objects would not be a
defense for that charge.
Finally, the testimony did not relate to assault with a
deadly weapon (counts 3 & 4). Bipialaka concedes the
prosecution brought the assault charges using his car as the
deadly weapon and not for using a knife or other object.
Fabricated evidence regarding “donuts” or waving objects could
not have been a defense.
Bipialaka’s motion did not demonstrate good cause for an
in camera review of the deputies’ personnel records. There was
no abuse of discretion.
V
The parties agree the abstract of judgment contains errors.
It must be amended to reflect that Bipialaka’s presentence
credits were calculated according to Penal Code section 4019 and
not section 2933.1. It also must be amended to reflect that a
11
$1,000 restitution fine, not a $10,000 fine, was imposed under
Penal Code section 1202.4, and that a $1,000 parole revocation
restitution fine, not a $10,000 fine, was imposed and suspended
under Penal Code section 1202.45. We direct the trial court to
prepare a corrected abstract of judgment and to forward the
amended version to the Department of Corrections and
Rehabilitation.
VI
Bipialaka requests this matter be remanded in light of
Senate Bill No. 1393 (2017–2018 Reg. Sess.). Senate Bill No.
1393 amended Penal Code sections 667 and 1385 to provide trial
courts discretion to strike five-year sentencing enhancements
based on prior serious felony convictions under section 667,
subdivision (a)(1). Bipialaka asks that we allow the trial court to
determine whether to dismiss his five-year enhancement. The
parties agree Senate Bill No. 1393 would apply to Bipialaka if his
judgment was not final when the law became effective. We also
agree. (In re Estrada (1965) 63 Cal. 2d 740, 744–745 [absent
evidence of contrary legislative intent, the Legislature intends
statutes reducing the penalty for a crime or providing the trial
court discretion to do so to apply retroactively to all cases not
final when the statutes take effect].) Because Bipialaka’s case
was not final when the law took effect and is not final now, we
affirm the convictions and remand for the trial court’s discretion
as to the felony enhancement.
VII
Bipialaka raises a Dueñas issue in supplemental briefing
but concedes he did not object to fees or the fine in the trial court.
He thereby forfeited this argument. (See People v. Frandsen
(April 4, 2019, B280329) ___ Cal.App.5th ___ [pp. 38–42].)
12
DISPOSITION
The matter is remanded to the trial court for resentencing.
On remand, the trial court shall exercise its discretion whether to
strike or dismiss the prior felony enhancement as authorized by
Senate Bill No. 1393.
We direct the trial court to modify the abstract of judgment
to reflect that Bipialaka’s presentence credits were calculated
according to Penal Code section 4019, not section 2933.1. We also
direct the trial court to modify the abstract of judgment to reflect
that a $1,000 restitution fine, not a $10,000 fine, was imposed
under Penal Code section 1202.4, and that a $1,000 parole
revocation restitution fine, not a $10,000 fine, was imposed and
suspended under Penal Code section 1202.45. We further direct
the trial court to forward the amended abstract to the
Department of Corrections and Rehabilitation.
The judgment is affirmed in all other respects.
WILEY, J.
WE CONCUR:
GRIMES, Acting P. J.
STRATTON, J.
13