People v. Chance
189 P.3d 971, 81 Cal. Rptr. 3d 723, 44 Cal. 4th 1164 (2008)
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Rule of Law:
The 'present ability' element of assault under California Penal Code § 240 is satisfied when a defendant has attained the means and location to inflict injury on the present occasion, even if some additional steps remain or if the victim's actions or external circumstances thwart the immediate, instantaneous infliction of injury.
Facts:
- Sheriff’s officers drove to a house in a rural area of El Dorado County to arrest Wyatt pursuant to felony warrants, having information that Wyatt was there and armed with a handgun.
- Wyatt, alerted to the officers' approach, ran from the house, and Sergeant Tom Murdoch pursued him on foot.
- After Wyatt ran around the front end of a trailer, Murdoch approached cautiously and saw Wyatt pressed against the trailer, holding a gun extended forward, facing the front end (away from Murdoch).
- Wyatt looked back over his right shoulder at Murdoch, who had his own gun trained on Wyatt, and Murdoch repeatedly told Wyatt to drop his weapon.
- After some hesitation, Wyatt brought the gun toward his body, flipped it behind him, and attempted to run again but fell and was arrested.
- The recovered handgun was fully loaded with 15 rounds in the magazine, but there was no round in the firing chamber, though Wyatt could have chambered one by pulling back a slide mechanism, and the safety was off.
Procedural Posture:
- A jury convicted Wyatt of assault with a firearm on a peace officer under section 245, subdivision (d)(1), along with other offenses.
- Wyatt appealed the assault conviction to the California Court of Appeal.
- The Court of Appeal, in a split decision, reversed Wyatt's assault conviction.
- The Attorney General appealed the Court of Appeal’s judgment to the Supreme Court of California.
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Issue:
Does the 'present ability' element of assault under California Penal Code § 240 require that the defendant's actions immediately precede a battery or that the injury would occur instantaneously, or is it sufficient that the defendant is capable of inflicting injury on the present occasion even if further steps are needed or external factors prevent instantaneous harm?
Opinions:
Majority - Corrigan, J.
No, the 'present ability' element of assault does not require that the defendant's actions immediately precede a battery or that the injury would occur instantaneously. It is sufficient that the defendant has the ability to inflict injury on the present occasion, even if some steps remain to be taken, and even if external circumstances or victim's actions thwart the injury. The court clarified that its prior statements in People v. Colantuono and People v. Williams about assault being 'unlawful conduct immediately antecedent to battery' referred to the intent requirement, distinguishing assault from general criminal attempt, and did not alter the 'present ability' element. Precedent, including People v. Valdez and People v. McMakin, establishes that 'immediately' in this context means 'on the present occasion,' not 'instantaneously.' A defendant has 'present ability' if they have 'attained the means and location to strike immediately.' The fact that a round needed to be chambered, or that the officer took evasive action, or even if the defendant was momentarily facing a different direction (as in People v. Lee Kong), does not negate this ability. Wyatt, with a loaded weapon and positioned to strike, possessed the present ability to inflict injury on Sergeant Murdoch.
Dissenting - Kennard, J.
No, under the court's prior holdings in People v. Colantuono and People v. Williams, Wyatt's actions did not satisfy the 'present ability' requirement for assault because his 'next movement' would not have completed the battery. The dissent argued that prior decisions established assault as requiring 'an act that by its nature will probably and directly result in injury' and must 'immediately precede the battery,' meaning 'the next movement would, at least to all appearance, complete the battery.' In this case, Wyatt would have had to turn around, chamber a round, aim, and pull the trigger, none of which would be the 'next movement' completing the battery. The dissent criticized the majority for trying to separate the act and mental state for assault, which were previously considered inseparable, and for relaxing the 'directly' and 'immediately' requirements, thereby unsettling established law. The dissent maintained that assault should be a specific intent crime, which would align with Wyatt's attempted murder conviction, but acknowledged that current law defines it as a general intent crime with a stricter actus reus requirement than the majority applied.
Analysis:
This case significantly clarifies the 'present ability' element of assault in California, moving away from a strict 'last proximate step' interpretation. It establishes that the focus is on the defendant's actual capability and positioning to inflict injury on the 'present occasion,' rather than requiring that the injury be instantaneous or that no further actions (like chambering a round) remain. This broadens the scope of acts that can constitute assault, making it clear that a victim's defensive actions or minor logistical hurdles for the perpetrator do not necessarily negate 'present ability.' The ruling makes convictions for assault more attainable in situations where an attack is imminent but not yet fully consummated, reinforcing the idea of assault as an 'incipient battery' that is less remote than a general criminal attempt.
