Russell

“ ‘[W]hether the pitcher hits the stone or the stone hits the pitcher, it will be bad for the pitcher.’ Miguel de Cervantes, Don Quixote, Part II, ch 43 (1615).”

In this case of first impression, we conclude a defendant who intentionally pushes another person into the path of an oncoming vehicle has used that vehicle as a “deadly weapon” in violation of Penal Code section 245, subdivision (a)(1).

The jury convicted appellant Donald Russell of assault with a deadly weapon or by means of force likely to cause great bodily injury. Appellant raises three main arguments on appeal: First, there was insufficient evidence to establish a violation of Penal Code section 245, subdivision (a)(1) under the theory appellant committed an assault with a deadly weapon when appellant pushed the victim into the path of an oncoming vehicle. Second, there was insufficient evidence to establish a violation of Penal Code section 245, subdivision (a)(1) under the theory appellant’s act of pushing the victim into the street where the victim was struck by an oncoming vehicle was an act “likely” to cause great bodily injury. Finally, appellant argues reversal is required because the jury was…