For purposes of assault, a defendant has a “present ability” to commit a violent injury where he or she attains the means and location to do so, even if additional steps remain to be taken. Webb, a wheelchair-bound amputee with one leg, was convicted of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) after swinging a knife at two employees of a restaurant. He appealed, arguing insufficient evidence. Held: Affirmed. To constitute an assault, the defendant must not only intend to commit a battery; he must also have the present ability to do so. At some point a defendant’s positioned distance to his victim will be too great to permit a finding of present ability. Although defendant raised an interesting question of how a defendant’s physical limitations might impact his ability to get within striking distance, in this case the record amply supported defendant’s conviction where the employee testified that the knife came within a foot of him and the employee had to back up to avoid being struck.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/D080147.PDF