Cotton

*296 Opinion

Defendant was charged by information in count I with violation of Penal Code section 245, subdivision (a) (assault with a deadly weapon—an automobile); in count II with violation of Penal Code section 487, subdivision 3 (grand theft auto); in count III with a felony violation of Vehicle Code section 10851 (driving without the owner’s consent); in count IV with violation of Vehicle Code section 23101 (causing bodily injury while driving a motor vehicle under the influence of intoxicating liquor); and in count V with a misdemeanor violation of Vehicle Code section 23104 (reckless driving causing injury). Count IV (felony drunk driving) was dismissed upon the granting of defendant’s motion under Penal Code section 995.

Defendant waived jury trial. At the conclusion of the prosecution’s case in chief, defendant’s motion to dismiss pursuant to Penal Code section 1118 was granted solely as to count II (felony grand theft auto). At the conclusion of trial, the court adjudged defendant guilty of counts I, III and V.

Probation was denied and the court ordered defendant committed to the California Youth Authority for the upper term of four years for assault with a deadly…

I respectfully dissent. I would affirm the trial court as to defendant’s conviction of assault with a deadly weapon (automobile) in violation of Penal Code section 245, subdivision (a), (count I) but would remand the case for the limited purpose of resentencing for the trial court to comply with California Rules of Court, rule 433, in respect to documenting the facts and reasons for imposing the upper term.

*308 In affirming the judgment of conviction of assault with a deadly weapon (Pen. Code, § 245, subd. (a)), my reasoning follows:

First, there is no doubt that a car can be operated in such a manner as to constitute a “deadly weapon.” (See People v. Claborn (1964) 224 Cal.App.2d 38 [ 36 Cal.Rptr. 132 ]; People v. Finney (1980) 110 Cal.App.3d 705 [ 168 Cal.Rptr. 80 ].)

Second, in the recent case of Finney , noted in the majority opinion, the defendant was convicted, amongst other things, of two counts of assault on a peace officer with a deadly weapon and by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)) and of reckless driving (Veh. Code, § 23103) arising out of defendant’s ramming of a police vehicle during a chase. The chase occurred on…

Defendant was charged by information in count I with violation of Penal Code section 245, subdivision (a) (assault with a deadly weapon — an automobile); in count II with violation of Penal Code section 487, subdivision 3 (grand theft auto); in count III with a felony violation of Vehicle Code section 10851 (driving without the owner's consent); in count IV with violation of Vehicle Code section 23101 (causing bodily injury while driving a motor vehicle under the influence of intoxicating liquor); and in count V with a misdemeanor violation of Vehicle Code section 23104 (reckless driving causing injury). Count IV (felony drunk driving) was dismissed upon the granting of defendant's motion under Penal Code section 995.

Defendant waived jury trial. At the conclusion of the prosecution's case in chief, defendant's motion to dismiss pursuant to Penal Code section 1118 was granted solely as to count II (felony grand theft auto). At the conclusion of trial, the court adjudged defendant guilty of counts I, III and V.

Probation was denied and the court ordered defendant committed to the California Youth Authority for the upper term of four years for assault…