“Present Ability” to Commit Serious Bodily Injury is an Essential Element in the Crime of Assault


Despite Physical Limitations, the Defendant Had the “Present Ability” to Commit Assault


Defendant was an unhoused, one-leg amputee, confined to a wheelchair, and required assistance to stand from his chair. He was partaking of fine dining in a Santee fast-food restaurant when he began causing a disturbance and yelling obscenities. San Diego Sheriff’s Department responded. Defendant was told that he could move to the outdoor area to finish his meal, but only if he did so peacefully. A short time later, defendant was found laying on his back in the wheelchair as if he had fallen backwards. Fire department personnel responded and assisted him back into the chair and departed. A short time after, defendant began yelling and shouting vulgarities again. Restaurant workers came outside and asked him to leave the premises. He was bouncing up and down in his wheelchair and wheeled the chair towards the workers. Defendant tried to gain stability by standing up on his right leg and supporting himself with one hand on a table. He began swinging a foldable Buck knife, with a 4”-5” exposed blade, in a side-swipe motion (“I’m going to fucking kill you”. “I’m going to stab you”). Though not fully standing, he lunged towards the workers. The knife blade came within 12” or less of the closest restaurant worked. The worker likely would have been struck had he not backed off. The workers and six customers then retreated inside the restaurant.

Workers came outside and again told the defendant to leave. Defendant began wheeling his chair towards him and thrust the knife forward, missing by several inches. Again, had the victim not backed up and retreated, he could have been struck. The San Diego County Sheriff's Department was called and the defendant was arrested. The knife was found in a folded condition in an adjacent planter box.

During a San Diego County Superior Court trial by judge, defendant challenged his prosecution based on his physical condition and permanent disability. He argued that he did not have the “present ability” to carry through with the assault because the exertion in trying to stand or wheel his chair left minimal physical energy for a thrust that actually would make contact and/or commit injury. He also told the judge that he was having an epileptic seizure. The trial judge explained: “I am not buying into the argument that you could not have delivered a blow had they not gotten out of the way.  There’s no question in my mind that you had the knife, the knife was open, you’re swearing at them, you’re telling them, ‘I’m going to kill you,’ and then you lunge at them with a knife.  That is an [assault with deadly weapon].  There’s nothing I can do to get around that for you. So there’s overwhelming evidence that you’re guilty of those two crimes.  I’m going to find you guilty of those two crimes.”

This was not the defendant’s first time in exhibiting aggressive behavior.  He had a prior “serious felony strike conviction” for 245 P.C. Defendant was sentenced to 3-years for each offense to be served concurrently. The judge struck the prior strike.