Assault is not a lesser included offense of knowingly resisting an officer by the use of force or violence

People v. Morgan (Cal., Feb. 26, 2026, No. S286493) 2026 WL 533311, at *1–2

Summary: During a confrontation with law enforcement, Morgan aimed a firearm at police officers, “racked” its slide, and pulled the trigger. The weapon did not discharge and when officers eventually recovered it, it was unloaded. Defendant was convicted of resisting an officer by “the use of force or violence” under Penal Code section 69, subdivision (a).  On appeal of his conviction, he argues  that assault (§ 240) is a lesser included offense of resisting an officer by force or violence. Because there was no evidence the weapon was loaded, he could not be convicted of assault and therefore could not be convicted of resisting an officer under section 69, subdivision (a) (section 69(a)).

The California Supremd Court concluded that assault is not a lesser included offense of resisting an officer by force or violence. Resisting  by force or violence does not require the “present ability” (§ 240) to commit a violent injury, an essential element of assault. s this interpretation.

The Court of Appeal reached the same conclusion. (People v. Morgan (2024) 103 Cal.App.5th 488, 508 (Morgan).)  The Court of Appeal criticized People v. Brown (2016) 245 Cal.App.4th 140 (Brown), in which a different Court of Appeal had accepted the People’s concession that assault is a lesser included offense of resisting an officer by use of force or violence. (Morgan, at pp. 504–505.)  Assault is not a lesser included offense of resisting an officer by force or violence because such resistance does not require a present ability to cause injury. The Supreme Court disapproved People v. Brown, supra, 245 Cal.App.4th 140, to the extent it is inconsistent with this decision.

Definition of assault

Section  240 has defined assault as an “unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” Assault does not require a showing of specific intent. (People v. Williams (2001) 26 Cal.4th 779, 788 (Williams).) Instead, assault requires only that the act itself was intentional, and that the would-be assaulter was aware that his or her conduct would probably and directly result in violent injury. Violent injury is any wrongful act which uses physical force against the person of another. (People v. Rocha (1971) 3 Cal.3d 893, 899, fn. 12 (Rocha).) To commit assault, a person must attempt to use some physical force, even if the violent injury is not actually completed.

A critical part of assault is the defendant’s immediate and present ability to commit an injury. Present ability is met when “ ‘ “[t]he next movement would, at least to all appearance,” ’ ” cause the threatened injury. (Williams, supra, 26 Cal.4th at p. 786.) A person who points an unloaded gun at someone else does not commit assault because that person does not have the immediate opportunity to injure by shooting. (People v. Rodriguez (1999) 20 Cal.4th 1, 11, fn. 3.)

Assault has a clear relationship to battery, defined by section 242. “A battery is any willful and unlawful use of force or violence upon the person of another.” (§ 242.) Battery is merely assault taken to its logical next step — the actual application of force. (People v. Colantuono (1994) 7 Cal.4th 206, 216.) Because battery requires all the elements of assault, assault is a lesser included offense of battery.

Section 69-resisting an officer

Section 69 makes it a crime to “attempt[ ], by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon the officer by law” and to “knowingly resist[ ], by the use of force or violence, the officer, in the performance of his or her duty.” (§ 69(a).) There are two ways to violate section 69.

One way is to deter or hinder an officer in the performance of their duty, even if that officer has not yet begun to act. A defendant does not need to use force or violence to violate section 69 in this way, since the deterrence may be accomplished by mere threats.

The second prong of section 69 punishes “[e]very person … who knowingly resists, by the use of force or violence, the officer, in the performance of his or her duty.” (§ 69(a).) The second prong crimalizes conduct that must rise above the level of mere threats. The officer must be engaged in the performance of a lawful duty at the time of the resistance. Morgan was charged only with resistance by force or violence of an officer in the performance of his or her duty.

The Supreme Court concluded that the second method of violating section 69(a) can be committed without also committing an assault.

Assault is not a lesser included offense of resisting an officer by force or violence because such resistance does not require a present ability to cause injury. Section 69(a)’s resistance by “the use of force or violence” language makes no mention of present ability.

The Court of Appeal concluded that the terms force and violence are subject to their ordinary meanings and thus do not require physical force.

Assault, which requires a present ability to cause injury, is not a lesser included offense of knowingly resisting an officer by the use of force or violence in violation of section 69, which does not
The judgment of the Court of Appeal was affirmed.

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