Metropolitan News-Enterprise


Monday, July 24, 2006


Page 3


Attempted Ambush No Basis for Assault Charge—Court of Appeal


By a MetNews Staff Writer


A fleeing suspect who stops and, expecting a police officer to follow, waits holding a handgun in shooting position, but is captured after the officer approaches from behind, can be convicted of attempted murder, but not assault, the Third District Court of Appeal ruled Friday.

The court reversed the conviction of Kenneth W. Chance of assault with a firearm on a peace officer, but upheld his conviction for the attempted murder of Deputy Sheriff Tom Murdoch.

Justice Richard Sims III, writing for the court, said:

“The fact that no substantial evidence supports defendant’s conviction for assault with a firearm does not suggest there is a lack of substantial evidence of attempted murder.”

In 2003 Murdoch and two other sheriff’s deputies approached Chance’s El Dorado County home to arrest him. Apparently seeing the deputies coming, Chance ran from the house, and Murdoch followed him, the undisputed evidence showed.

During the chase, Chance pulled out a nine-millimeter, semi-automatic handgun, and continued running with the gun in his right hand.

At one point, Chance rounded the front of a travel trailer, stopped, and, standing with his chest pressed against the side of the trailer, looking toward the front of the trailer with his right arm holding the gun in a shooting position, and his left hand supporting his right hand, waited for Murdoch.

But instead of following Chance’s path around the front of the trailer, Murdoch went to the back of the trailer from the other side, then approached Murdoch from behind with his gun drawn. After repeated demands, Chance dropped his gun and, after a short chase, was arrested.

It was later determined that Chance’s gun was loaded with 15 rounds, but no bullet was in the chamber. Thus, to fire the gun, Chance would have first had to pull back the slide to load a bullet. The gun’s safety was off.

 When Murdoch approached Chance from behind, he did not see Chance attempt to load the chamber.

 A jury convicted Chance of attempted murder, assault with a firearm on a peace officer, possession of a firearm by a felon, and possession of ammunition by a person prohibited from possessing a gun. El Dorado Superior Court Judge Eddie T. Keller sentenced him to 70 years to life in prison.

On appeal, Chance argued that there was not substantial evidence to support convictions for assault with a firearm and attempted murder.

Penal Code Sec. 240 provides, “An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another,”

Sims, writing for the court, noted that the state Supreme Court has held that “[a]n assault is an act done toward the commission of a battery and must ‘immediately’ precede the battery.”

The justice noted that Chance’s act of pointing his firearm did not immediately precede a battery.

“On this evidence, a reasonable person could not conclude that a battery would ‘directly’ and ‘immediately’ result from defendant’s conduct,” Sims explained.

“Defendant did not have the ‘present ability[] to commit a violent injury on the person of another.”

With respect to the attempted murder charge, Sims noted that, “Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.”

 Chance argued there was no evidence of a direct but ineffectual act in furtherance of an intent to kill. 

But Sims said:

“[T]the jury could conclude that defendant was poised to kill the deputy with a loaded firearm and was prevented from doing so only because the deputy came up behind him by surprise. This is a direct but ineffectual act sufficient for attempted murder.”

Sims explained:

“Because defendant was in a firing position, we reject defendant’s arguments that waiting with the gun did not show intent to kill and showed, at most, a desire to scare the deputy so defendant could escape.”

Chance also argued that there was insufficient evidence was to show the attempted murder was willful, deliberate and premeditated, as required by statute.

But Sims, noting that such intent requires no specific time span, said:

“From the facts recounted above (defendant pulling out the gun, taking cover and assuming a firing stance with the gun aimed at the spot where defendant expected Sergeant Murdoch to appear), a reasonable jury could conclude defendant had a motive to kill Sergeant Murdoch to escape capture, and that defendant formed a plan to ambush Murdoch and intended to shoot him at close range with a gun.”

Justice Coleman Blease concurred with Sims opinion.

Justice Ronald B. Robie concurred with respect to the attempted murder charge, but dissented with respect to the assault charge, saying:

“This case presents the difficult question of how close a person has to come to completing a battery before he is guilty of assault. There is no easy answer to that question in the abstract. However . . . I believe . . . that defendant came close enough here . . . .”

The case is People v. Chance, 06 S.O.S. 3819.


Copyright 2006, Metropolitan News Company