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Name: People v. Chance
Case #: C048825
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 07/20/2006
Subsequent History: 11/1/06 Rev. GRANTED: S145458

Appellant was sentenced to 70 years to life following a conviction for attempted first degree murder of a police officer and assault with a firearm on a police officer, in addition to firearm offenses. On appeal, he contended that there was insufficient evidence to support the conviction for attempted murder and for assault with a firearm. The appellate court found that there was sufficient evidence of attempted murder, but insufficient evidence of assault, and reversed the assault conviction. Assault is an unlawful attempt with the present ability to commit a violent injury on another. Here, Chance was pointing a weapon towards the front of a trailer where he thought the police officer would appear. The officer came up behind him and demanded that he drop the gun. The gun contained 15 rounds, but no round was in the chamber. The officer was not ever aware of Chance was pointing the gun “at him.” Chance didn’t point the gun at the officer or even where he thought he was, but rather at a place where he thought the officer would appear. A reasonable person would not believe that a battery would immediately result from this conduct, and Chance did not have the present ability to commit the injury. However, there was sufficient evidence of attempted murder because a jury could conclude that Chance was poised to kill the deputy with a loaded firearm and was prevented from doing so only because the deputy came up behind him by surprise. The fact that there was no bullet in the chamber was not sufficient to deflect the jury’s finding that Chance intended to kill.