“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.

4th District Court of Appeals upheld the conviction. “For over a hundred and seventy years California has defined the crime of assault as an “unlawful attempt, coupled with the present ability to commit a violent injury on the person of another (240 P.C.) ...despite his physical limitations, Webb had the “present ability” to inflict a violent injury when he lunged at Shane at close distance holding a knife at chest height.”

Note: “Violent injury” doesn’t mean “serious bodily injury (243(d) P.C.) or “traumatic injury (273.5(d) P.C.). It can be any attempt to commit an unlawful touching, however slight, against the will of another, regardless of success.

This case seems like a “no brainer”. However, it illustrates the need to prove “present ability” beyond a reasonable doubt in a crime involving assault. There were some interesting historical cases cited in this decision supporting the precedent behind “present ability”:

• Defendant drew a loaded revolver and threatened to shoot a person on horseback. “Present ability” existed even though the revolver was pointed at an angle towards the ground and not at the victim (Peo. v Makin (1857) 8 Cal. 547).
• Defendant wielded a hatchet from 8’ away. For fear of assault, the victim ran into another room and locked the door (Peo. v. Yslas (1865) 27 Cal. 630).
• A wife retreated by jumping out a window when her husband was holding a knife at close range (Peo. v. Hunter (1925) 71 Cal. App. 315).
• When a gun jammed but could be cleared again to shoot (Peo. v. Rauson (1978) 40 Cal. App. 3d 317).
• A Sacramento Police officer dove for cover when the defendant raised his loaded gun (Peo. v. Raviart (2001) 93 Cal. App. 4th 255).
• Defendant fled from El Dorado County sheriff’s deputies and concealed himself behind a 21’ trailer. He was carry a firearm, safety off, 15 rounds in the magazine, but no round in the firing chamber.  A deputy came around the opposite side of the trailer where the defendant could not see him. Defendant’s gun was pointed in the opposite direction. He surrendered without further resistance. “Present ability” existed. “[W]hen 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.” Defendant had the means and location to injure the deputy notwithstanding the deputy taking a different route than Chance anticipated” (Peo. v. Chance (2008) 44 Cal. 4th 1164).
• Wielding a knife from 10-15’ away and advancing (Peo. v. Nguyen (2017) 12 Ca. App. 5th 44).

There is no mention in this decision of a capacity defense involving unconscious of the act. I worked on a paramedic fire engine for 18-years. I have yet to see a person experiencing epileptic seizure “bounce up and down in a wheelchair”, wheel around, holler threats, or hold onto and thrust a knife!!

See also: LUPC Ref. #CAB00177 (9/25/2022) – Assault with a Deadly Weapon (245(a) (1) P.C. and Assault with Force Likely to Produce Great Bodily Injury (245(a)(4) P.C.) are Different Definitions Within the Same Crime.

Stay Safe…

RH