California Legal Brief

The Rule of People v. Morgan is that assault is not a lesser included offense of resisting an executive officer by use of force or violence under Penal Code section 69(a), under circumstances where the defendant's forceful resistance does not require a "present ability" to commit violent injury as required for assault.

Appeal from judgment after jury trial in Superior Court, Sonoma County.

Defendant Appellant was Henry Morgan — the individual who aimed an unloaded firearm at police officers, racked its slide, and pulled the trigger during a confrontation.

Plaintiff Respondent was The People — the prosecution seeking to uphold Morgan's conviction for resisting an officer by use of force or violence.

The suit sounded in criminal law. [No cross-claims applicable.]

The key substantive facts leading to the suit were Morgan's confrontation with California Highway Patrol officers where he pointed an unloaded gun at officers, pulled the trigger producing an audible click, and waved the weapon while ignoring commands to drop it, after which officers recovered the unloaded firearm with no ammunition found on Morgan's person or in his vehicle.

The procedural result leading to the Appeal: The trial court denied defendant's motion for judgment of acquittal under section 1118.1, ruling that resisting an officer by force may not always constitute an assault, and also declined to instruct the jury on assault as a lesser included offense.

The key question(s) on Appeal: Whether assault under Penal Code section 240 is a lesser included offense of resisting an executive officer by use of force or violence under Penal Code section 69(a).

The Appellate Court held that assault is not a lesser included offense of resisting an officer by force or violence because section 69(a) does not require the "present ability" to commit violent injury that is essential to assault under section 240, as demonstrated by Morgan's case where he could resist officers with an unloaded firearm lacking present ability to cause injury.

The case is inapplicable when the defendant's conduct involves both the present ability to cause immediate violent injury and actual forceful resistance of an officer, or when analyzing the first prong of section 69(a) involving deterrence by threats rather than actual resistance by force.

The case leaves open whether the accusatory pleading test can apply in sufficiency of the evidence challenges, and does not address the Court of Appeal's additional conclusions regarding the meaning of "force or violence" and the "on the person" element of assault.