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Name: People v. Chance
Case #: S145458
Court: CA Supreme Court
District CalSup
Opinion Date: 08/18/2008

Appellant’s conduct was sufficient to establish the actus reus for assault where he had a weapon and could have used it immediately. During a chase, appellant pointed a loaded weapon at a place where he thought the police officer would appear. The jury convicted him of assault with a firearm on a peace officer in violation of Penal Code section 245, subdivision (b)(1). In an appeal from his conviction, appellant argued that he lacked the present ability to commit assault because his conduct did not immediately precede a battery (relying on People v. Colantuono (1994) 7 Cal.4th 206, and People v. Williams (2001) 26 Cal.4th 782, which characterized assault as “unlawful conduct immediately antecedent to battery”). The appellate court agreed, and the Supreme Court granted review to consider the actus reus required for assault. The Court rejected the appellate court’s application of Colantuono and Williams, finding that neither case discussed the present ability element of assault. The element is satisfied when a defendant has attained the means and location to strike immediately. Immediately does not mean instantaneously, but only that the defendant must have the ability to inflict injury on this occasion. Assault may be committed even if the defendant is several steps away from actually inflicting the injury, or if the victim is protected so that the injury cannot be “immediate.” Colantuono and Williams did not discuss or disturb this settled authority.