“Present ability,” a requisite element of assault, is defined as the attainment of the means and location to strike immediately. The victim, appellant’s on-again off-again girlfriend, testified that during the single, continuous incident, appellant repeatedly threatened to kill her by various means, including threatening to light the oven gas that had accumulated in the trailer. As to this threat, the victim testified that she could smell the gas, but that when appellant lit his lighter, nothing happened. At trial, there was no expert testimony as to the effect of striking a lighter near gas. The appellate court reversed the jury conviction for assault likely to cause great bodily injury, which was based on appellant turning on the gas stove and telling the victim he wanted to blow them up. Although the victim smelled gas, there was no substantial evidence that the gas was sufficiently volatile or concentrated to ignite.
A defendant is not entitled to a jury determination as to whether Penal Code section 654 applies. In an advisory opinion, the appellate court noted that the Supreme Court’s holding in People v. Black (2005) 35 Cal.4th 1238 (Black I) that a section 654 decision does not require a jury trial was not undermined by Cunningham v. California (2007) 549 U.S. _____ [166 L.Ed.2d 856], as this portion was not addressed by the United States Supreme Court.