In People v. Morgan, the Supreme Court today holds that a person who “aimed a firearm at police officers, ‘racked’ its slide, and pulled the trigger” can be guilty of resisting an officer by “the use of force or violence” (Penal Code section 69(a)) even though the gun was unloaded.
The court’s unanimous opinion by Justice Kelli Evans says that pointing an unloaded gun at someone is not a criminal assault because there is no “immediate and present ability to commit an injury.” Nonetheless, the court concludes, “assault is not a lesser included offense of resisting an officer by force or violence.” Unlike for an assault, Justice Evans writes, “resisting by force or violence does not require the ‘present ability’ . . . to commit a violent injury.”
The court affirms the First District, Division One, Court of Appeal published opinion, although it had disapproved the opinion last year on a Sixth Amendment sentencing issue. The court also today disapproves the First District, Division Four, decision in People v. Brown (2016) 245 Cal.App.4th 140.
