Metropolitan News-Enterprise


Thursday, November 2, 2006


Page 3


Supreme Court to Decide Whether Fleeing Suspect Was Properly Convicted of Assaulting Officer


By a MetNews Staff Writer


The California Supreme Court yesterday agreed to decide whether a fleeing suspect who was captured from behind was properly convicted of an armed assault on a peace officer. 

The justices, meeting in San Francisco for their weekly conference, unanimously granted the state’s petition to review the Third District Court of Appeal’s July 21 reversal of Kenneth W. Chance’s conviction for assaulting El Dorado County Deputy Sheriff Tom Murdoch.

At the same time, however, the high court unanimously denied Chance’s petition to review the court’s affirmance of his simultaneous conviction for attempted murder. Chance was also convicted of possession of a firearm by a felon and possession of ammunition by a person prohibited from owning a firearm.

Chance is currently serving a 70-year-to-life sentence imposed by El Dorado Superior Court Judge Eddie Keller in the case, which resulted from a 2003 incident in which Murdoch and two other  deputies approached Chance’s home to arrest him. Apparently seeing the deputies coming, Chance ran from the house, and Murdoch followed him.

The evidence in the case was largely uncontroverted. 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 testified, he did not see Chance attempt to load the chamber.

A divided panel of the Court of Appeal ruled that Chance could not be convicted of assault because there was no potential for him to commit an immediate battery.

The high court yesterday framed the issue as: whether the defendant could “be convicted of assault with a firearm on a peace officer when his gun was pointing in the opposite direction from the officer and there was no bullet in the firing chamber, or, on such facts, would a battery not have ‘immediately’ resulted from his conduct and did he lack the ‘present ability to inflict injury’ within the meaning of Penal Code section 240?”

That section defines an assault as “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.”

  Justice Richard Sims III, writing for the Court of Appeal, explained that “a reasonable person could not conclude that a battery would ‘directly’ and ‘immediately’ result from defendant’s conduct,” and Justice Coleman Blease concurred.

Justice Ronald B. Robie argued in dissent:

“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, C048825.

In other conference action, the high court agreed to decide whether an unfair competition law action by smokers who are seeking restitution of money paid for cigarettes, based on claims of misrepresentation as to the health effects of smoking, qualifies for certification as a class action. The Fourth District Court of Appeal’s Div. One ruled that it does not in In re Tobacco II Cases, D046435.


Copyright 2006, Metropolitan News Company