Supreme Court of California Justia
Citation 44 Cal. 4th 1164, 189 P.3d 971, 81 Cal. Rptr. 3d 723

People v. Chance

Filed 8/18/08

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S145458
v.
) Ct.App.
3
C048825
KENNETH WAYNE CHANCE,
El Dorado County
Defendant and Appellant.
Super. Ct. No. P03CRF0664

Here we consider the actus reus required for assault. Since 1872, the Penal
Code has defined assault as “an unlawful attempt, coupled with a present ability,
to commit a violent injury on the person of another.” (Pen. Code, § 240.) 1 This
case involves only the “present ability” aspect of the crime. Nevertheless, we
must consider the effect of statements in prior opinions analyzing the intent
required for assault.
In People v. Colantuono (1994) 7 Cal.4th 206, 216 (Colantuono), and
People v. Williams (2001) 26 Cal.4th 782, 784-785 (Williams), we reaffirmed the
established rule that assault is a general intent crime. We noted that attempt
crimes generally require specific intent, but that the “unlawful attempt” term of
section 240 is different. Assault requires an act that is closer to the
accomplishment of injury than is required for other attempts. Other criminal
attempts, because they require proof of specific intent, may be more remotely

1 Further statutory references are to the Penal Code. Earlier statutes
included essentially the same definition. (Stats. 1856, ch. 139, p. 220; Stats. 1850,
ch. 124, p. 645.)
1


connected to the attempted crime. (Colantuono, at p. 216; Williams, at p. 786.)
When discussing the intent requirement, we have characterized assault as
“unlawful conduct immediately antecedent to battery.” (Colantuono, at p. 216;
see Williams, at p. 786.)
Here, defendant relies on that characterization to argue that he lacked the
present ability to commit assault because his conduct did not immediately precede
a battery. The Court of Appeal, in a split decision, agreed. We reject this
application of Colantuono and Williams. Neither case discussed the present ability
element of assault. That element is satisfied when “a defendant has attained the
means and location to strike immediately.” (People v. Valdez (1985) 175
Cal.App.3d 103, 113 (Valdez); see People v. Licas (2007) 41 Cal.4th 362, 366-
367.) In this context, however, “immediately” does not mean “instantaneously.”
It simply means that the defendant must have the ability to inflict injury on the
present occasion.2 Numerous California cases establish that an assault may be
committed even if the defendant is several steps away from actually inflicting
injury, or if the victim is in a protected position so that injury would not be
“immediate,” in the strictest sense of that term. Colantuono and Williams did not
discuss or disturb this settled authority.
FACTS
The facts are undisputed. On the afternoon of November 29, 2003,
sheriff’s officers drove to a house in a rural area of El Dorado County to arrest
defendant pursuant to felony warrants. The officers had information that
defendant was there and armed with a handgun. Defendant, evidently alerted to
their approach, ran from the house. Sergeant Tom Murdoch pursued him on foot.
2
It has long been established that the “injury” element of the assault statute
is satisfied by any attempt to apply physical force to the victim, and includes even
injury to the victim’s feelings. (Colantuono, supra, 7 Cal.4th at p. 214, fn. 4;
People v. Rocha (1971) 3 Cal.3d 893, 899-900, fn. 12; People v. Bradbury (1907)
151 Cal. 675, 676-677.)
2
Murdoch wore a vest marked with a large yellow star and the word “SHERIFF” on
the front and back. Defendant saw Murdoch and kept running.
After defendant turned up the driveway to another home, Murdoch twice
shouted, “Sheriff’s Department, stop.” From a distance of 30 to 35 feet, Murdoch
saw that defendant was carrying a handgun. Defendant ran around the front end of
a trailer.3 Murdoch approached, looking and listening for any indication that
defendant was still fleeing. Detecting none, and anticipating that defendant might
be lying in wait for him, Murdoch advanced to his left, around the back of the
trailer. Carefully peering around the corner, he saw defendant pressed against the
trailer, facing the front end. He was holding the gun in his right hand, extended
forward and supported by his left hand.
Defendant looked back over his right shoulder at Murdoch, who had his
own gun trained on defendant. Murdoch repeatedly told defendant to drop the
weapon. The officer testified, “I was in fear of my life. I was afraid . . . he was
going to try to shoot me any second.” After some hesitation, defendant brought
the gun toward the center of his body, then flipped it behind him. He began to run
again, but fell after only a few steps. Defendant was arrested and the gun
recovered. It was fully loaded with 15 rounds in the magazine. There was no
round in the firing chamber, but defendant could have chambered one by pulling
back a slide mechanism. The safety was off.
A jury convicted defendant of assault with a firearm on a peace officer
under section 245, subdivision (d)(1),4 along with other offenses. Only the assault
conviction is at issue on this appeal by the Attorney General.
3
Murdoch described the trailer as about 20 feet long, with a door and
windows. Another deputy called it a “travel trailer.”
4
“Any person who commits an assault with a firearm upon the person of a
peace officer or firefighter, and who knows or reasonably should know that the
victim is a peace officer or firefighter engaged in the performance of his or her
duties, when the peace officer or firefighter is engaged in the performance of his
or her duties, shall be punished by imprisonment in the state prison for four, six, or
eight years.” (§ 245, subd. (d)(1).)
3
DISCUSSION
The Court of Appeal majority reversed the assault conviction, concluding
that defendant did not have the “present ability[] to commit a violent injury”
required for assault under section 240, because his act of pointing a gun at a place
where he thought Sergeant Murdoch would appear was not immediately
antecedent to a battery. For the proposition that an assault must immediately
precede a battery, the majority relied on our decision in Williams, supra, 26
Cal.4th 779. Its reliance was misplaced. Williams involved only the mental state
required for assault, and did not construe the present ability requirement.
Williams clarified our holding in Colantuono that assault is a general intent
crime, “established upon proof the defendant wilfully committed an act that by its
nature will probably and directly result in injury to another, i.e., a battery.”
(Colantuono, supra, 7 Cal.4th at p. 214; see Williams, supra, 26 Cal.4th at p. 782.)
To ensure that an assault conviction cannot be based on facts unknown to a
defendant, the Williams court held that a defendant must “actually know[] those
facts sufficient to establish that his act by its nature will probably and directly
result in physical force being applied to another.” (Williams, at p. 788.)
The language deemed controlling by the Court of Appeal majority here is
found in Williams’s review of the distinction between ordinary criminal attempt,
which requires specific intent, and the “unlawful attempt . . . to commit a violent
injury” required for assault under section 240. This statutory language has
remained unchanged since its enactment. Williams explained that when the
Legislature employed the word “attempt” in section 240, it used the term in a
particular sense.5 We quote the relevant paragraphs in their entirety, to provide the
context:
5
Although various statutory modifications have been proposed, the
Legislature has not acted on them. (See Hinkley, Assault-related Conduct Under
the Proposed California Criminal Code
(1974) 25 Hast. L. J. 657; Williams,
supra, 26 Cal.4th at p. 789.)
4

“In determining which meaning of ‘attempt’ the Legislature intended to use
in section 240, we must look to the historical ‘common law definition’ of assault.
(Code commrs. note foll. Ann. Pen. Code, § 240 (1st ed. 1872, Haymond & Burch,
commrs.-annotators) pp. 104-105.) ‘ “The original concept of criminal assault
developed at an earlier day than the doctrine of criminal attempt in general. . . .” ’
(Colantuono, supra, 7 Cal.4th at p. 216, quoting Perkins on Criminal Law (2d ed.
1969) ch. 2, § 2, pp. 118-119.) Assault ‘is not simply an adjunct of some
underlying offense [like criminal attempt], but an independent crime statutorily
delineated in terms of certain unlawful conduct immediately antecedent to
battery.’ (Colantuono, at p. 216.) Unlike criminal attempt where the ‘ “act
constituting an attempt to commit a felony may be more remote,” ’ ‘ “[a]n assault
is an act done toward the commission of a battery” ’ and must ‘ “immediately” ’
precede the battery. (Perkins & Boyce, Criminal Law (3d ed. 1982) p. 164
(Perkins).) Indeed, our criminal code has long recognized this fundamental
distinction between criminal attempt and assault by treating these offenses as
separate and independent crimes. (Compare § 240 with §§ 663, 664.)
“Consequently, criminal attempt and assault require different mental states.
Because the act constituting a criminal attempt ‘need not be the last proximate or
ultimate step toward commission of the substantive crime,’ criminal attempt has
always required ‘a specific intent to commit the crime.’ (People v. Kipp (1998) 18
Cal.4th 349, 376.) In contrast, the crime of assault has always focused on the
nature of the act and not on the perpetrator’s specific intent. An assault occurs
whenever ‘ “[t]he next movement would, at least to all appearance, complete the
battery.” ’ (Perkins, supra, p. 164, italics added.) Thus, assault ‘lies on a
definitional . . . continuum of conduct that describes its essential relation to
battery: An assault is an incipient or inchoate battery; a battery is a consummated
assault.’ (Colantuono, supra, 7 Cal.4th at p. 216, italics added.) As a result, a
specific intent to injure is not an element of assault because the assaultive act, by
its nature, subsumes such an intent.” (Williams, supra, 26 Cal.4th at p. 786.)
5

The Attorney General argues that these passages in Williams and
Colantuono have inappropriately incorporated the concept of “apparent present
ability” into section 240. (See Valdez, supra, 175 Cal.App.3d at p. 110.) We
disagree. As explained below, the discussion of the proximity between assault and
battery in Williams and Colantuono was confined to the intent requirement for
assault, and did not mention or change the well-established understanding of the
“present ability” element of section 240.
Here, defendant does not dispute that he had the general intent required for
assault. Like the Court of Appeal majority, however, he relies on the statements in
Williams and Colantuono that an assault must immediately precede the battery.
(See Williams, supra, 26 Cal.4th at p. 786, quoting Colantuono.) Defendant also
notes that Williams and Colantuono characterized assault as occurring whenever
the next movement would complete the battery. (Ibid.) Therefore, he argues, he
did not have the “present ability” to inflict injury required by section 240, because
he would have had to turn, point his gun at the officer, and chamber a round before
he could shoot at Murdoch.
This application of Williams and Colantuono is mistaken. In those cases,
we were concerned with distinguishing assault from the later developed criminal
attempt doctrine. (Williams, supra, 26 Cal.4th at p. 786; Colantuono, supra, 7
Cal.4th at p. 216.) The holdings in Williams and Colantuono were not intended to
and did not transform the traditional understanding of assault to insulate
defendants from liability until the last instant before a battery is completed.
Although temporal and spatial considerations are relevant to a defendant’s
“present ability” under section 240, it is the ability to inflict injury on the present
occasion that is determinative, not whether injury will necessarily be the
instantaneous result of the defendant’s conduct.
An early case from this court explains the sense in which the present ability
element contemplates “immediate” injury. In People v. McMakin (1857) 8 Cal.
547 (McMakin), the defendant threatened to shoot the victim, “at the same time
6
drawing a Colt’s revolver, which he held in a perpendicular line with the body of
[the victim], but with the instrument so pointed that the ball would strike the
ground before it reached the [victim], had the pistol been discharged.” (Ibid.) The
court, after quoting the statutory language that today appears in section 240,
observed: “The intention must be to commit a present, and not a future injury,
upon a different occasion. The acts done must be in preparation for an immediate
injury.” (McMakin, at p. 548.) 6
Thus, it is a defendant’s action enabling him to inflict a present injury that
constitutes the actus reus of assault. There is no requirement that the injury would
necessarily occur as the very next step in the sequence of events, or without any
delay. The McMakin court noted that assault does not require a direct attempt at
violence. (McMakin, supra, 8 Cal. at p. 548.) “There need not be even a direct
attempt at violence; but any indirect preparation towards it, under the
circumstances mentioned, such as drawing a sword or bayonet, or even laying
one’s hand upon his sword, would be sufficient.” (Hays v. The People
(N.Y.Sup.1841) 1 Hill 351, 353, cited in McMakin, at p. 548.)
Subsequent California cases establish that when a defendant equips and
positions himself to carry out a battery, he has the “present ability” required by
section 240 if he is capable of inflicting injury on the given occasion, even if some
steps remain to be taken, and even if the victim or the surrounding circumstances
thwart the infliction of injury.
6
Although the language quoted above might be deemed consistent with a
specific intent requirement, we have consistently referred to McMakin as authority
for the proposition that general intent is sufficient for assault. (Colantuono, supra,
7 Cal.4th at pp. 213, fn. 3, 217, 219; People v. Hood (1969) 1 Cal.3d 444, 452, fn.
4.) The dissent suggests there was a time when a specific intent to injure was
required. This is not the case. Despite some confusion in certain opinions, the
overwhelming weight of California authority has always viewed assault as a
general intent crime. (See Colantuono, at pp. 215-218; People v. Rocha, supra, 3
Cal.3d at pp. 898-899; Hood, at pp. 452-453, fn. 4, citing cases, and p. 455.)
7

People v. Ranson (1974) 40 Cal.App.3d 317, is particularly instructive.
Ranson aimed a rifle at a police car. After the police shot and disarmed him, it
was discovered that there was no round in the chamber because a cartridge was
jammed in the magazine. (Id. at pp. 319-320.) The Ranson court noted that while
an unloaded gun does not confer “present ability,”7 the element is satisfied if the
defendant wields an automatic rifle with cartridges in the magazine, even if the
firing chamber is empty. (Ranson, at p. 321, citing People v. Simpson (1933) 134
Cal.App. 646, 650.) The court continued: “The instant case presents a unique fact
situation. The rifle held by appellant was definitely loaded and operable; however,
the top cartridge that was to be fired was at an angle that caused the gun to jam.
There was evidence from which the trial court could infer that appellant knew how
to take off and rapidly reinsert the clip. [¶] Time is a continuum of which
‘present’ is a part. ‘Present’ can denote ‘immediate’ or a point near ‘immediate.’
The facts in People v. Simpson, supra, 134 Cal.App. 646, for example, present a
situation where the gun could be fired nearly immediately.[8] We are slightly
more removed from ‘immediate’ in the instant case; however, we hold that the
conduct of appellant is near enough to constitute ‘present’ ability for the purpose
of an assault.” (Ranson, at p. 321.) Ranson’s analysis is consistent with the
language of section 240, which requires a present ability, not an immediate one.9
7
On the rule that assault cannot be committed with unloaded gun, unless
the weapon is used as a bludgeon, see, e.g., People v. Rodriguez (1999) 20 Cal.4th
1, 11, and footnote 3; Valdez, supra, 175 Cal.App.3d at page 111; 1 Witkin &
Epstein, Cal. Criminal Law (3d ed. 2000) Crimes Against the Person, section 9,
page 644.
8
In Simpson, the defendant held the muzzle against the victim’s stomach,
with her finger on or near both the trigger and the lever that would transfer a round
to the chamber. (People v. Simpson, supra, 134 Cal.App. at p. 648.)

9 As we have noted, McMakin demonstrates that “present” and
“immediate” are not necessarily inconsistent terms. (McMakin, supra, 8 Cal.4th at
p. 548.) “Immediate” can mean “near to or related to the present . . . of or relating
to the here and now.” (Merriam-Webster’s Collegiate Dict. (11th ed. 2004) p.
621.)
8



Here, defendant was further along the continuum of conduct toward battery
than Ranson was. Like Simpson, he needed only to transfer a shell to the firing
chamber. (People v. Simpson, supra, 134 Cal.App. at p. 650.) As in People v.
Pearson (1957) 150 Cal.App.2d 811, another case following Simpson, defendant
could have chambered a round simply by pulling back a slide. (Pearson, at p.
816.) The Ranson court held the evidence of present ability sufficient, even
though Ranson had to do much more than turn around to use his weapon against
the police. He had to remove the clip, dislodge a jammed cartridge, reinsert the
clip, chamber a round, point the weapon, and pull the trigger. (Ranson, supra, 40
Cal.App.3d at p. 321.)10
Defendant contends he lacked the present ability to inflict injury not only
because he was aiming in the opposite direction from Murdoch, but also because
Murdoch had him covered and would have shot him first. However, this argument
cannot be squared with cases demonstrating that an assault may occur even when
the infliction of injury is prevented by environmental conditions or by steps taken
by victims to protect themselves.
In
Valdez, supra, 175 Cal.App.3d 103, the defendant was convicted of
assault with a firearm for shooting at a gas station attendant who was behind a
bulletproof window. (Id. at p. 106.) He contended he lacked the present ability to
injure the attendant because of the protective glass. (Id. at p. 108.) The Court of
Appeal disagreed. We do not adopt all the Valdez court’s reasoning,11 but the
following discussion is sound:
10
The dissent claims the Ranson court viewed assault as a specific intent
offense. However, in its extremely brief discussion of the intent element, the court
made no mention of specific intent, and cited People v. Gaines (1966) 247
Cal.App.2d 141, 148. (Ranson, supra, 40 Cal.App.3d at p. 321.) Gaines states
plainly that “[t]he crime of assault with a deadly weapon requires no proof of
specific intent to commit the offense.” (Gaines, at p. 148.)

11 For instance, the court opined that “[t]he real function of this ‘present
ability’ element in common law assault as incorporated in the California statute is
to require the perpetrator to have gone beyond the minimal steps involved in an
9



“Nothing suggests this ‘present ability’ element was incorporated into the
common law to excuse defendants from the crime of assault where they have
acquired the means to inflict serious injury and positioned themselves within
striking distance merely because, unknown to them, external circumstances doom
their attack to failure. This proposition would make even less sense where a
defendant has actually launched his attack — as in the present case — but failed
only because of some unforeseen circumstance which made success impossible.
Nor have we found any cases under the California law which compel this result.
The decisions holding a defendant lacks ‘present ability’ when he tries to shoot
someone with an unloaded gun or a toy pistol do not support any such proposition.
In those situations, the defendant has simply failed to equip himself with the
personal means to inflict serious injury even if he thought he had.” (Valdez,
supra, 175 Cal.App.3d at p. 112.)
“Once a defendant has attained the means and location to strike
immediately he has the ‘present ability to injure.’ The fact an intended victim
takes effective steps to avoid injury has never been held to negate this ‘present
ability.’ ” (Valdez, supra, 175 Cal.App.3d at p. 113, citing People v. Yslas (1865)
27 Cal. 630; see also People v. Licas, supra, 41 Cal.4th at pp. 366-367.) This
view of the “present ability” element is accurate, and consistent with the McMakin

attempt.” (Valdez, supra, 175 Cal.App.3d at p. 112.) As we have noted, the
concept of criminal assault reflected in our statutes predates the doctrine of
criminal attempt in general. (Williams, supra, 26 Cal.4th at p. 786.) Thus, while
the “present ability” element is consistent with the distinction between the
unlawful attempt element of assault and other criminal attempts, its “real function”
is separate and flows directly from the plain meanings of “present” and “ability.”
As McMakin established, “a present, and not a future injury” must be threatened.
(McMakin, supra, 8 Cal. at p. 548.) And as the unloaded gun cases demonstrate,
the defendant must have an actual, not merely apparent, ability to inflict injury.
(See fn. 7, ante.) The Valdez court properly recognized that neither of these
aspects of “present ability” is negated by the circumstance that injury turns out to
be impossible for reasons unrelated to the defendant’s preparations. (Valdez, at
pp. 111-114.)
10


holding that an “immediate” injury for purposes of assault is one that is threatened
on the present occasion. (McMakin, supra, 8 Cal. at p. 548.)
Assault cases decided both before and after Valdez provide further
examples. In Yslas, the defendant approached within seven or eight feet of the
victim with a raised hatchet, but the victim escaped injury by running to the next
room and locking the door. Yslas committed assault, even though he never closed
the distance between himself and the victim, or swung the hatchet. (Yslas, supra,
27 Cal. at pp. 631, 633-634.) Similarly, in People v. Hunter (1925) 71 Cal.App.
315, 318-319, the victim jumped out a window as the defendant tried to pull a gun
from his sock. Hunter committed assault, even though the victim was gone before
he could deploy his weapon.
People v. Raviart (2001) 93 Cal.App.4th 258, 267 (Raviart) follows Valdez
while distinguishing our opinion in Williams. Two officers, Wagstaff and Keller,
went to a motel to arrest Raviart. (Raviart, at pp. 261-262.) They rounded a
corner, with Wagstaff nearer to the building than Keller. Keller saw Raviart
pointing a gun at him. Both officers fired at Raviart as Keller moved behind the
corner with Wagstaff. (Id. at pp. 264-265.) When Raviart’s gun was recovered, it
was loaded but unfired. (Id. at p. 266.)
Relying
on
Williams, Raviart contended he could not be convicted of an
assault against Wagstaff because pointing the gun at Keller was not the “ ‘last
proximate step’ ” toward committing a battery against Wagstaff. (Raviart, supra,
93 Cal.App.4th at p. 266; see Williams, supra, 26 Cal.4th at p. 786.) The Court of
Appeal rejected this argument. “In clarifying the mental state required for assault,
the Supreme Court explained that an assault is an act done toward the commission
of a battery and that ‘[a]n assault occurs whenever “ ‘[t]he next movement would,
at least to all appearance, complete the battery.’ ” ’ (People v. Williams, supra, 26
Cal.4th at p. 786. . . .) We do not understand this statement to mean that for the
crime of assault to occur, the defendant must in every instance do everything
physically possible to complete a battery short of actually causing physical injury
11
to the victim. Such a holding would be inconsistent with numerous precedents,
including, but not limited to, People v. McMakin, supra, 8 Cal. 547, People v.
Hunter, supra, 71 Cal.App. 315, and People v. Thompson [(1949)] 93 Cal.App.2d
780.” 12 (Raviart, at pp. 266-267.)
The
Raviart court’s reading of Williams was correct. Our references to the
last proximate step, and to the next movement completing a battery, were for the
purpose of explaining that assault occurs at a point closer to the infliction of injury
than is required for crimes falling under the general doctrine of criminal attempt.
(Williams, supra, 26 Cal.4th at p. 786.) The Williams analysis did not disturb the
numerous cases demonstrating that assault is not limited to acts done at the last
instant before a completed battery.
The
court also rejected the claim that Raviart lacked the “present ability” to
injure Wagstaff because the officer was protected by the corner of the building.
The court noted that Wagstaff was not at all times behind the corner, and in any
event “the fact that Officer Wagstaff may have been sheltered, in whole or in part,
by the building did not preclude the jury from finding defendant had the present
ability to injure him. ‘Once a defendant has attained the means and location to
strike immediately he has the “present ability to injure.” The fact an intended
victim takes effective steps to avoid injury has never been held to negate this
“present ability.” ’ ([Valdez, supra,] 175 Cal.App.3d 103, 113.)” (Raviart, supra,
93 Cal.App.4th at p. 267.)
Here, defendant’s loaded weapon and concealment behind the trailer gave
him the means and the location to strike “immediately” at Sergeant Murdoch, as
that term applies in the context of assault. Murdoch’s evasive maneuver, which
permitted him to approach defendant from behind, did not deprive defendant of
the “present ability” required by section 240. Defendant insists that, unlike the
12
Thompson is a case like McMakin, in which the defendant confronted the
victims with a loaded gun but never pointed it directly at them. (People v.
Thompson
, supra, 93 Cal.App.2d at pp. 781-782.)
12
defendants in the cases discussed above, he never pointed his weapon in
Murdoch’s direction. That degree of immediacy is not necessary, as another early
case from this court demonstrates. In People v. Lee Kong (1892) 95 Cal. 666, “[a]
policeman secretly bored a hole in the roof of appellant’s building, for the purpose
of determining, by a view from that point of observation, whether or not he was
conducting therein a gambling or lottery game. This fact came to the knowledge
of appellant, and upon a certain night, believing that the policeman was upon the
roof at the contemplated point of observation, he fired his pistol at the spot. He
shot in no fright, and his aim was good, for the bullet passed through the roof at
the point intended; but very fortunately for the officer of the law, at the moment of
attack he was upon the roof at a different spot, viewing the scene of action, and
thus no substantial results followed from appellant’s fire.” (Id. at pp. 667-668.)
This court had no difficulty concluding that “the appellant had the present
ability to inflict the injury. He knew the officer was upon the roof, and knowing
that fact he fired through the roof . . . . The fact that he was mistaken in judgment
as to the exact spot where his intended victim was located is immaterial. That the
shot did not fulfill the mission intended was not attributable to forbearance or
kindness of heart upon defendant’s part; neither did the officer escape by reason of
the fact of his being so far distant that the deadly missile could do him no harm.
He was sufficiently near to be killed from a bullet from the pistol . . . . Appellant’s
mistake as to the policeman’s exact location upon the roof affords no excuse for
his act, and causes the act to be no less an assault.” (People v. Lee Kong, supra,
95 Cal. at p. 670.) 13
Here too, defendant’s mistake as to the officer’s location was immaterial.
He attained the present ability to inflict injury by positioning himself to strike on

13 The Lee Kong opinion does not stand for the proposition that assault
requires a specific intent to inflict injury. The court was merely construing the
present ability requirement in light of the facts before it.
13


the present occasion with a loaded weapon. This conduct was sufficient to
establish the actus reus required for assault.
CONCLUSION
We reverse the Court of Appeal’s judgment, insofar as it held the evidence
insufficient to support a conviction for assault with a firearm on a peace officer.
CORRIGAN, J.

WE CONCUR:
GEORGE, C. J.
BAXTER, J.
CHIN, J.
MORENO, J.

14





DISSENTING OPINION BY KENNARD, J.

While being pursued by sheriff’s deputies, defendant ran toward the front
of a travel trailer. When Sergeant Tom Murdoch, with gun drawn, looked around
a corner at the back of the trailer, he saw defendant with a gun pointed toward the
front of the trailer. As Murdoch came up behind defendant, the latter looked over
his shoulder at Murdoch. After Murdoch repeatedly ordered defendant to drop the
gun, defendant tossed the gun to the ground and started running. Moments later he
fell and was arrested. When defendant’s gun was recovered, its safety mechanism
was not on and there were 15 rounds in its magazine but no round in the chamber.
Defendant was convicted of, among other things, assault with a firearm on
a peace officer and attempted murder. The Court of Appeal affirmed the
conviction for attempted murder, but it reversed the assault conviction in light of
this court’s holdings in People v. Colantuono (1994) 7 Cal.4th 206 (Colantuono)
and People v. Williams (2001) 26 Cal.4th 779 (Williams). In Colantuono, this
court held that the crime of assault requires the commission of “an act that by its
nature will probably and directly result in injury to another” (7 Cal.4th at p. 214,
italics added), that is, an act “immediately antecedent to battery” (id. at p. 216). In
Williams, this court reiterated that view, stating that assault requires “ ‘ “an act
done toward the commission of a battery” ’ ” that must “ ‘ “immediately” ’
precede the battery” (26 Cal.4th at p. 786); that is, it requires an act where the
“ ‘ “next movement would, at least to all appearance, complete the battery
. . .” ’ ” (ibid.). Applying those decisions here, the Court of Appeal held that
1



because defendant did not point the gun at Sergeant Murdoch, no reasonable
person could conclude that defendant’s conduct would directly and immediately
result in the unlawful use of force upon another.
Reversing the Court of Appeal’s judgment, the majority here reinstates the
assault conviction. The majority is wrong; the Court of Appeal was right.
Under the test set forth in Colantuono, supra, 7 Cal.4th 206, and in
Williams, supra, 26 Cal.4th 779, the pertinent inquiry is whether in this case
defendant’s “next movement” would have completed the battery. (Colantuono,
supra, at p. 216; Williams, supra, at p. 786.) The answer is “no.” To fire the gun
at the pursuing Sergeant Murdoch, defendant would have had to turn around
(instead of just looking over his shoulder at Murdoch), pull back the slide of the
gun to release a round into the firing chamber, aim the gun at Murdoch, and then
pull the trigger. Had defendant pointed his gun at Murdoch after releasing a round
into the chamber, he unquestionably would have committed an assault. But, as
just explained, that was not the scenario here.
Although defendant’s conviction for assault was improper — because he
did not commit an act that would have directly and immediately resulted in injury
(Williams, supra, 26 Cal.4th at p. 787; Colantuono, supra, 7 Cal.4th at p. 217) —
he was properly convicted of attempted murder, as the Court of Appeal concluded.
An anomalous conclusion? Yes, but one compelled by Colantuono and Williams.
Unlike the requisite act for assault, the act necessary for attempted murder and
other criminal attempts “need not be the last proximate or ultimate step toward
commission of the substantive crime.” (People v. Kipp (1998) 18 Cal.4th 349,
376.)
The majority tries to find a way around its holdings in Colantuono, supra, 7
Cal.4th 206, and Williams, supra, 26 Cal.4th 779. First, it asserts that this case
concerns only the nature of the act required to commit an assault, whereas
Colantuono and Williams concerned the mental state required to commit an
assault. (Maj. opn., ante, at pp. 1-4, 6.) That effort fails, because under this
2

court’s decisions the requisite act and intent are inseparable. (Williams, supra, 26
Cal.4th at p. 786 [“a specific intent to injure is not an element of assault because
the assaultive act, by its nature, subsumes such an intent”]; see Colantuono, supra,
7 Cal.4th at p. 217 [the intent of committing a battery is subsumed in an act that by
its nature will likely result in physical force on another].) The majority cannot
have it both ways.
Second, the majority asserts that defendant’s assault conviction can be
affirmed by viewing the requisite act for assault as requiring only the ability to
inflict injury on the “present occasion.” (Maj. opn., ante, at pp. 2, 6, 10, 13.) This
is an apparent attempt by the majority to relax the requirement of Williams, supra,
26 Cal.4th at pages 787-788, and Colantuono, supra, 7 Cal.4th at page 217, that
assault requires the commission of an act that “directly” and “immediately”
precedes a battery. Here, defendant’s act did not satisfy that requirement.
Therefore, as construed by the majority, the phrase “present occasion”
encompasses an act that goes beyond the test articulated in Williams and in
Colantuono, unsettling the law of assault.
The way out of this legal morass is easy. Simply recognize that assault is a
specific intent crime, as I advocated in my dissents in Colantuono, supra, 7
Cal.4th at pages 225-228, and in Williams, supra, 26 Cal.4th at pages 791-796. A
specific intent crime is an offense that requires the defendant to not only intend to
do an act but to also intend to achieve a consequence, such as (in the case of
assault) the intent “to commit a violent injury on the person of another” (Pen.
Code, § 240), whereas a general intent crime requires only that the defendant
intend to do the act (People v. Hood (1969) 1 Cal.3d 444, 456-457). That assault
is a specific intent crime is established by the legislative history of the offense; by
the statutory language expressly stating that assault requires an attempt (Pen.
Code, § 240), which in turn requires a specific intent (id., § 21a); and by this
court’s commonsense observation in People v. Carmen (1951) 36 Cal.2d 768, 775,
that one “could not very well ‘attempt’ to try to ‘commit’ an injury on the person
3

of another if he had no intent to cause any injury to such other person.” (Williams,
supra, 26 Cal.4th at pp. 791-796 (dis. opn. of Kennard, J.); Colantuono, supra, 7
Cal.4th at pp. 225-228 (conc. & dis. opn. of Kennard, J.).)
Here, defendant had the specific intent to inflict injury on the pursuing
Sergeant Murdoch, as shown by the jury’s conviction of him for attempted
murder, a crime that requires the specific intent to unlawfully kill. (Pen. Code,
§§ 21a, 664, subd. (e), 187, 189.) With the specific intent to injure Sergeant
Murdoch, defendant pointed a loaded gun in the direction where he expected
Sergeant Murdoch to appear. Thus, if assault were viewed as a specific intent
crime, as I think it should be, defendant would be guilty of assault as well as
attempted murder. But under this court’s existing decisions, assault is a general
intent crime that requires an act where the “next movement” would complete the
battery. (Williams, supra, 26 Cal.4th at p. 786; Colantuono, supra, 7 Cal.4th at
p. 216.) As explained above (ante, at p. 2), here defendant’s next movement
would not have completed the battery and therefore, as the Court of Appeal
correctly concluded, he cannot be convicted of assault.1
I would affirm the judgment of the Court of Appeal.
KENNARD,
J.
I CONCUR:
WERDEGAR, J.
1
The majority cites a number of decisions to support its conclusion that defendant’s act was
sufficiently close to inflicting injury to sustain the assault conviction. The cases, however, are inapposite.
Seven of the cited cases, People v. Lee Kong (1892) 95 Cal. 666, People v. Yslas (1865) 27 Cal. 630,
People v. McMakin (1857) 8 Cal. 547, People v. Thompson (1949) 93 Cal.App.2d 780, People v. Simpson
(1933) 134 Cal.App. 646, and People v. Hunter (1925) 71 Cal.App. 315, were decided when specific intent
to injure was required for an assault (see, e.g., People v. Coffey (1967) 67 Cal.2d 204, 221-222; People v.
Carmen, supra,
36 Cal.2d at p. 775; People v. Dodel (1888) 77 Cal. 293, 294; People v. Bird (1881) 60 Cal.
7, 8) and the assaultive act did not have to be the immediate antecedent of harm as required by Williams,
supra,
26 Cal.4th 779, and Colantuono, supra, 7 Cal.4th 206. People v. Raviart (2001) 93 Cal.App.4th
258, 266-267, makes the same mistake as the majority. People v. Ranson (1974) 40 Cal.App.3d 317, 321,
viewed assault as a specific intent offense and was decided accordingly. People v. Valdez (1985) 175
Cal.App.3d 103, 113, concerns the effect of the victim’s avoidance or preventative measures, an issue not
presented here.
4

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Chance
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 141 Cal.App.4th 618
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S145458
Date Filed: August 18, 2008
__________________________________________________________________________________

Court:

Superior
County: El Dorado
Judge: Eddie T. Keller

__________________________________________________________________________________

Attorneys for Appellant:

Richard Power, under appointment by the Supreme Court, for Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Mary Jo Graves and
Dane R. Gillette, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Brian
G. Smiley, Julie A. Hokans, Janet Neeley, Harry Joseph Colombo and Peter W. Thompson, Deputy
Attorneys General, for Plaintiff and Respondent.



Counsel who argued in Supreme Court (not intended for publication with opinion):

Richard Power
P.O. Box 476
Shingle Springs, CA 95682-0476
(530) 677-6344

Peter W. Thompson
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 327-7876


Petition for review after the Court of Appeal affirmed in part and reversed in part a judgment of conviction of criminal offenses. The court limited review to the following issue: Could defendant be convicted of assault with a firearm on a peace officer when his gun was pointing in the opposite direction from the officer and there was no bullet in the firing chamber, or, on such facts, would a battery not have "immediately" resulted from his conduct and did he lack the "present ability to inflict injury" within the meaning of Penal Code section 240?

Opinion Information
Date:Citation:Docket Number:Category:Status:
Mon, 08/18/200844 Cal. 4th 1164, 189 P.3d 971, 81 Cal. Rptr. 3d 723S145458Review - Criminal Appealclosed; remittitur issued

Parties
1Chance, Kenneth Wayne (Defendant and Appellant)
Represented by Richard C. Power
Attorney at Law
P.O. Box 476
Shingle Springs, CA

2The People (Plaintiff and Respondent)
Represented by Peter William Thompson
Office of the Attorney General
P.O. Box 944255
Sacramento, CA


Disposition
Aug 18 2008Opinion: Reversed

Dockets
Jul 31 2006Received premature petition for review
  Kenneth Chance, defendant and appellant Richard Power, c/a appointed counsel petition to be filed 8-22-06
Aug 22 2006Case start: Petition for review filed
  c/a rec req
Aug 28 20062nd petition for review filed
  The People, respondent Peter W. Thompson, Deputy AG
Aug 28 2006Request for depublication (petition for review pending)
  the People, respondent Peter Thompson, Dep. A.G.
Aug 30 2006Received Court of Appeal record
  one doghouse
Oct 20 2006Time extended to grant or deny review
  to and including November 22, 2006, or the date upon which reivew is either granted or denied.
Nov 1 2006Petition for review granted; issues limited (criminal case)
  Appellant's petition for review DENIED. The issues to be briefed and argued are limited to the following: Could defendant be convicted of assault with a firearm on a peace officer when his gun was pointing in the opposite direction from the officer and there was no bullet in the firing chamber, or, on such facts, would a battery not have "immediately" resulted from his conduct and did he lack the "present ability to inflict injury" within the meaning of Penal Code section 240? Votes: George, CJ., Kennard, Baxter, Werdegar, Chin, Moreno and Corrigan, JJ.
Nov 2 2006Received additional record
  one doghouse
Nov 27 2006Counsel appointment order filed
  Upon request of appellant for appointment of counsel, Richard Power is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date respondent's opening brief on the merits is filed.
Dec 1 2006Request for extension of time filed
  to January 15, 2007 to file respondents opening brief on the merits.
Jan 12 2007Opening brief on the merits filed
  The People, respondent by Peter W. Thompson, Deputy Attorney General
Jan 17 2007Extension of time granted
  to January 15, 2007 to file respondents opening brief on the merits.
Jan 18 2007Received:
  exhibit "A" to respondent's opening brief on the merits by Attorneys for Respondent
Feb 13 2007Request for extension of time filed
  to March 5, 2007 to file appellants answer brief on the merits. by Richard Power, counsel
Feb 14 2007Extension of time granted
  to March 5, 2007 to file answer brief on the merits.
Mar 6 2007Answer brief on the merits filed
  Kenneth Wayne Chance, appellant by Richard Power, counsel crc.8.25(b)
Mar 23 2007Reply brief filed (case fully briefed)
  The People, respondent by Peter W. Thompson, counsel
Dec 17 2007Filed:
  letter from counsel for respondent dated December 14, 2007, to notify the court that counsel will be unvailable for oral arguements from May 5, 2008 thru May 20, 2008.
Apr 9 2008Case ordered on calendar
  to be argued on Thursday, May 8, 2008, at 1:30 p.m. in San Francisco
Apr 14 2008Argument rescheduled
  to be argued during the court's late May or June sessions
Apr 30 2008Case ordered on calendar
  to be argued on Wednesday, May 28, 2008, at 9:00 a.m., in San Francisco
May 28 2008Cause argued and submitted
 
Aug 15 2008Notice of forthcoming opinion posted
 
Aug 18 2008Opinion filed: Judgment reversed
  We reverse the Court of Appeal's judgment, insofar as it held the evidence insufficient to support a conviction for assault with a firearm on a peace officer. Majority opinion by: Corrigan, j. ----- Joined by George, C. J., Baxter, Chin and Moreno, JJ. Dissenting Opinion by: Kennard, J., ----- Joined by Werdegar, J.
Sep 18 2008Remittitur issued (criminal case)
 
Sep 22 2008Received:
  Receipt for Remittitur from Court of Appeal Third Appellate District.
Nov 13 2008Compensation awarded counsel
  Atty Power

Briefs
Jan 12 2007Opening brief on the merits filed
 
Mar 6 2007Answer brief on the merits filed
 
Mar 23 2007Reply brief filed (case fully briefed)
 
Brief Downloads
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APP1_Appellants_opening_brief.pdf (243885 bytes) - Appellants Opening Brief
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APP2_Appellants_reply_brief.pdf (70945 bytes) - Appellants Reply Brief
application/pdf icon
APP3_Appellants_Supplemental_Letter.pdf (40678 bytes) - Appellants Supplemental Letter
application/pdf icon
SCT1_Appellants_Answer_Brief_2007.pdf (477572 bytes) - Appellants Answer Brief
application/pdf icon
SCT2_Respondents_Reply_Brief_3-23-2007.pdf (94047 bytes) - Respondents Reply Brief
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
Jan 9, 2009
Annotated by admin.ah

Written by: Chris Abernethy
KEYWORDS / PHRASES:

a. Topical: Assault; Battery; Attempted battery; Assault with deadly weapon; Assault with firearm; Elements of assault; Actus reus; Attempt to apply physical force; Present ability; Inflict injury; Ability to execute intent; Present occasion; Antecedent; Precede; Criminal attempt; General intent; Specific intent; Attempted murder.

b. Factual: Trailer; Weapon; Gun; Handgun; Loaded; Firing chamber; Peace officer; Lying in wait; Concealment behind trailer; Assault with loaded firearm; Victim in protected position; Victim evasive maneuver.

c. Case-Related Names: Chance; Williams; Colantuono; Valdez; Licas; Rocha; Bradbury; Kipp; McMakin; Hays; Hood; Ranson; Simpson; Rodriguez; Pearson; Gaines; Yslas; Hunter; Raviart; Thompson; Lee Kong; Carmen; Coffey; Dodel; Bird.

For his actions during an attempt to evade arrest, a jury convicted Defendant of, among other offenses, assault with a firearm on a peace officer (CAL. PENAL CODE § 245(d)(1)).
The Court of Appeal for the Third District reversed Defendant’s assault conviction, holding that Defendant lacked the “present ability” to inflict injury upon the officer as required for criminal assault because his act of pointing a loaded gun at a place where he incorrectly believed the officer would appear could not have been immediately antecedent to battery.
The Supreme Court of California reversed the Court of Appeal’s decision regarding the assault charge, concluding that Defendant did have the “present ability” to inflict injury on the officer, thereby satisfying the actus reus requirement for assault. By wielding a loaded handgun and lying in wait behind a trailer, Defendant obtained the location and means to strike at the officer on the present occasion. Ability to strike “immediately” does not require ability to strike “instantaneously.”
Although there was no round in the firing chamber of Defendant’s loaded gun, the Court reasoned that this did not defeat his “present ability” to inflict injury because he could have quickly chambered a round by simply pulling back a slide mechanism. Furthermore, the Court held that the officer’s evasive maneuver of approaching Defendant from behind (causing him to misjudge the officer’s position) was immaterial to whether Defendant’s actions in positioning himself to strike with a loaded weapon constituted assault. Applying the same reasoning, the Court similarly rejected Defendant’s arguments that he lacked “present ability” to inflict injury because (a) he was pointing his gun in the opposite direction of the officer, and (b) the officer could have easily shot him first.

Jan 9, 2009
Annotated by admin.ah

Written by: Chris Abernethy
PROCEDURAL HISTORY:

1. Trial Court:
• Court: El Dorado County Superior Court
• Judge: KELLER, EDDIE, J.
• Docket No.: P03CRF0664
• Judgment Date: 12/28/2004
• Disposition - Jury convicted defendant of:
1) Assault with a firearm on a peace officer (CAL. PENAL CODE § 245(d)(1));
2) Attempted murder of a peace officer (CAL. PENAL CODE §§ 187, 664);
3) Possession of a firearm by a felon (CAL. PENAL CODE § 12021(a)(1));
4) Possession of ammunition by a person prohibited from possessing a gun (CAL. PENAL CODE § 12316(b)(1));
• Sentencing: Total term of 70 years to life.

2. State Court of Appeals:
• Court: Third Appellate District, California
• Judges:
- Writing for Majority: SIMS, RICHARD M. III, J.
- Writing for Dissent: ROBIE, RONALD BOYD, J.
• Docket No.: C048825
• Judgment Date: 07/20/2006
• Modification: C048825M
• Opinion Publications: 46 Cal.Rptr.3d 235, 06 Cal. Daily Op. Serv. 6619, 2006 Daily Journal D.A.R. 9497
• Disposition: Affirmed in Part; reversed in part. Remanded for resentencing.
• Holdings:
1) Evidence was insufficient to prove assault with a firearm:
o Defendant did not have the "present ability[] to commit a violent injury" required for assault under § 240, because his act of pointing a gun at a place where he thought the officer would appear was not the final step that could immediately precede a battery.
2) Evidence was sufficient to prove attempted murder.

3. State Supreme Court:
• Court: Supreme Court of California
• Judges:
- Writing for Majority: CORRIGAN, CAROL A., J.
- Writing for Dissent: KENNARD, JOYCE L., J.
• Docket No.: S145458
• Judgment Date: 08/18/2008
• Opinion Publications: 44 Cal.4th 1164, 189 P.3d 971, 81 Cal.Rptr.3d 723, 08 Cal. Daily Op. Serv. 10,819, 2008 Daily Journal D.A.R. 12,883
• Disposition: Reversed decision of Court of Appeals.
• Holdings:
1) By pointing a loaded gun at the position where he believed the officer would appear, Defendant had the present ability to inflict injury required for assault under § 240.

Jan 9, 2009
Annotated by admin.ah

Written by: Chris Abernethy
FURTHER RELATED RESEARCH:

1. Secondary Sources – Generally:

a. Jack K. Levin, Definition and Basic Elements of Assault, 6 AM. JUR. 2d ASSAULT AND BATTERY § 1 (2008).

b. Jack K. Levin, Present Ability to Inflict Threatened Harm, 6 AM. JUR. 2d ASSAULT AND BATTERY § 95 (2008).

c. Laurie L. Levenson & Alex Ricciardulli, Crimes Against the Security of the Person: Assault, Battery and Related Crimes—Battery—Attempted Battery—Present Ability Requirement, California Criminal Law § 6.24 (2008).

d. Crimes Against Security of Person: Assault – Present Ability to Commit Injury Necessary, CAL. JURY INSTR.: CRIM. § 9.01 (2008).

e. Sonja Larsen & Thomas Muskus, Assault, In General, Assault Defined, 6A C.J. S. ASSAULT § 1 (2008).

f. Sonja Larsen & Thomas Muskus, Assault, In General, Present Ability to Execute Intent, 6A C.J. S. ASSAULT § 82 (2008).

g. F. LEE BAILEY & KENNETH FISHMAN, HANDLING MISDEMEANOR CASES § 11:3 (2d ed. 2008).

h. John Kassel, Present Ability Requirement, 3 S.C. JUR. ASSAULT AND BATTERY § 3 (2008).

i. Marjorie Shields, Attempt to Commit Assault as Criminal Offense, 93 A.L.R.5th 683 (2001).

j. Jeffrey F. Ghent, Fact That Gun Was Unloaded as Affecting Criminal Responsibility, 68 A.L.R. 4th 507 (1989).

k. I. J. Schiffres, Intent to Do Physical Harm as Essential Element of Crime of Assault With Deadly or Dangerous Weapon, 92 A.L.R. 2d 635 (1963).

2. Law Review Articles:

a. Dean M. Googsian, Annual Survey of Michigan Law, 46 Wayne L. Rev 655, 672 (2000).

b. Tammy L. Samsel, Crimes; Threats to Public Officials, 25 PAC. L.J. 602 (1994).

c. Ira P. Robbins, Double Inchoate Crimes, 26 HARV. J. ON LEGIS. 1 (1989).

d. Gerald M. Hinkley, Assault-Related Conduct Under the Proposed California Code, 25 HAST. L.J. 657 (1974).

e. Steven James Malamuth, Comment, A Final Assault on Attempted Assault, 14 SANTA CLARA LAW. 83 (1973).

f. Rollin M. Perkins, Criminal Attempt and Related Problems, 2 UCLA L. Rev. 319 (1954).

g. G. A. W., Criminal Law: Assault with Unloaded Gun, 1 CAL. L. REV. 62 (1912).
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