People v. Chance: Analyzing the Assault Statute's Present Ability Requirement

Abstract

Between 1997 and 2006 there were 5,045,904 felony arrests in California. During that same time span there were 1,094,130 arrests for assault. Indeed, in each of those years arrests for assault vastly outnumbered all other types of violent offenses combined. Arrests for assault also outnumbered every other specific type of felony arrest. In light of these statistics, the assault statute has the potential to affect more criminal defendants than any other section of the California Penal Code. It is hardly an overstatement, then, to suggest that the Supreme Court’s opinion in People v. Chance was the most important criminal case decided during the 2008 term. Chance afforded the Court an opportunity to interpret section 240 of the Penal Code. That section provides that “[a]n assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” The Court considered the present ability requirement and held that sufficient evidence supported the assault conviction of a two-strike offender. Reversing the judgment of the Court of Appeal, the Court clarified its holdings in prior assault cases concerning the required mental state under section 240. It also—and more importantly—established a test to evaluate a defendant’s present ability to injure his intended victim. The casenote proceeds in three parts. Part I discusses the factual background and procedural history of Chance. It also explores the reasoning of both Justice Corrigan’s majority opinion and Justice Kennard’s dissenting opinion. Part II considers prior decisions that influenced the reasoning in those opinions. In addition, this part briefly places California’s assault law in context