People v. Bipialaka

• Decision Date: 17 April 2019
• Docket Number: B285656
• Citation: 34 Cal.App.5th 455,246 Cal.Rptr.3d 177
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Bomatamunopiri A. BIPIALAKA, Defendant and Appellant.

34 Cal.App.5th 455

246 Cal.Rptr.3d 177

The PEOPLE, Plaintiff and Respondent,

v.Bomatamunopiri A. BIPIALAKA, Defendant and Appellant.

B285656

Court of Appeal, Second District, Division 8, California.

Filed April 17, 2019

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.

WILEY, J.

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, 113 Cal.Rptr. 897, 522 P.2d 305 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, 242 Cal.Rptr.3d 268 ( 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."

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.

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, 111 Cal.Rptr.2d 114, 29 P.3d 197, 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, 26 Cal.Rptr. 746, see People v. Perez (2018) 4 Cal.5th 1055, 1065, 232 Cal.Rptr.3d 51, 416 P.3d 42 [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, 111 Cal.Rptr.2d 114, 29 P.3d 197.)

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 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, 148 Cal.Rptr.3d 901.) 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.

The imminence of the threat is significant in the law of assault. (Cf. People v. Williams , supra , 26 Cal.4th at p. 786, 111 Cal.Rptr.2d 114, 29 P.3d 197 [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, 111 Cal.Rptr.2d 114, 29 P.3d 197.) The shotgun blast hit the truck but not the rival. Williams called it a "warning shot." ( Id. at pp. 782, 790, 111 Cal.Rptr.2d 114, 29 P.3d 197.)

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, 192 Cal.Rptr. 748, 665 P.2d 520 ) but we must follow governing law from Williams , which sought to clarify past law. (See Williams , supra , 26 Cal.4th at pp. 787, 111 Cal.Rptr.2d 114, 29 P.3d 197 [because past language may have been confusing, "we now clarify the mental state for assault"] & 26 Cal.4th at 782, 111 Cal.Rptr.2d 114, 29 P.3d 197 ["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, 26 Cal.Rptr.2d 908, 865 P.2d 704 [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, 102 Cal.Rptr.3d 786, 220 P.3d 820, which contains the statement that an ...