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F 9.01 n1 Assault: Present Ability Defined (PC 240).
CJ 9.01 defines “present ability” as follows:
“… at the time of the attempt one must have the present ability to accomplish [such an] injury in the manner by which it is attempted.”
Actually, however, the definition in California has become more complex than this. For example, while California courts have held that attempting to shoot someone with an unloaded gun does not constitute the crime because the perpetrator lacks the “present ability” to inflict injury, other cases hold that the present ability element is satisfied where the ability to injure is only “a moment away.” (See cases cited in People v. Valdez (85) 175 CA3d 103, 111 [220 CR 538].)
Even when the defendant does not have an actual present ability to injure the victim — e.g., the victim is behind bullet-proof glass — present ability is established if the defendant has maneuvered himself into such a location and equipped himself with sufficient means that he appears to be able to strike immediately at his intended victim. (Valdez at 112.)
Hence, counsel should not exclusively rely upon the definition of present ability in CJ 9.01. (But see People v. Craig (91) 227 CA3d 644, 651 [278 CR 39] [CJ 9.01 is correct statement of the law].)
F 9.01a
Assault: Present Ability Defined — Unloaded Gun
(PC 240)
*Add to CJ 9.01:
If a person points an unloaded gun at another, without any intent or threat to use it as a club or bludgeon, there is no present ability to commit a violent injury and, therefore, the act of pointing the unloaded gun is not an assault.
Points and Authorities
Attempting to shoot someone with an unloaded gun does not constitute the crime of assault because the perpetrator lacks the “present ability” to inflict injury. (People v. Valdez (85) 175 CA3d 103, 111 [220 CR 538] and cases cited therein; see also People v. Bekele (95) 33 CA4th 1457, 1463 [39 CR2d 797]; People v. Sheldon (89) 48 C3d 935, 961-62 [258 CR 242].) Therefore, when the evidence supports a defense of lack of present ability because the weapon might have been unloaded, the defendant has a right to a pinpoint instruction upon this theory of the defense. (See generally FORECITE PG III(A) “Pinpoint Instructions.”)
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII.]
NOTES
(See also People v. Burnside UNPUBLISHED (G010050) [refusal of pinpoint instruction on present ability held to be prejudicial error].) [Additional briefing on this issue and a copy of the Burnside opinion are available to FORECITE subscribers. Ask for Brief Bank # B-676 a/b and Opinion Bank # O-107.]
F 9.01b
Assault: Application Of Physical Force Requires Actual Touching
*Add to CJ 9.01:
See FORECITE F 9.00e
