Friday, February 27, 2026
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California Supreme Court:
Shooting at Police Is Felony Resisting Even if Gun Is Empty
Opinion Resolves Split, Says Assault Is Not Lesser-Included Offense, Declines to Read ‘Present Ability’ to Harm into ‘Force’ Required Under Obstructing Law
By Kimber Cooley, associate editor
The California Supreme Court held yesterday that a man was properly convicted of resisting police by force or violence based on his having pointed an unloaded firearm at an officer’s head and allegedly pulling the trigger, rejecting the defendant’s assertion that the statute requires the accused to have had the “present ability” to cause an injury.
Yesterday’s unanimous decision, authored by Justice Kelli Evans, resolves a split between two divisions of the First District Court of Appeal and declares that assault, which is defined in Penal Code §240 as “an unlawful attempt, coupled with the present ability, to commit a violent injury…on another,” is not a lesser-included offense of resisting arrest by force or violence under Penal Code §69, which provides:
“Every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon the officer by law, or who knowingly resists, by the use of force or violence, the officer, in the performance of his or her duty, is [guilty of a criminal offense].”
Evans wrote:
“We conclude that assault is not a lesser included offense of resisting an officer by force or violence. Specifically, resisting by force or violence does not require the ‘present ability’ (§ 240) to commit a violent injury, an essential element of assault. The text of section 69, read in context with other provisions of the Penal Code and the statute’s purpose of proscribing forceful or violent conduct that hinders law enforcement, compels this interpretation.”
Presiding Justice Alison M. Tucher of Div. Three of the First District Court of Appeal, sitting by assignment, joined in Evans’ opinion.
Sonoma County Standoff
Appealing his felony conviction for violating §69 was Henry Morgan. On June 27, 2021, California Highway Patrol Officer Matthew Goulding responded to a standoff between Morgan, who was holding a knife, and another man, who was holding a rock in his raised hand, in Sonoma County.
Morgan initially fled the area but returned to the scene as Goulding was in the process of arresting the other man. Morgan exited his car, pointed a gun at Goulding’s head, and a “click” consistent with pulling the trigger rang out.
The firearm was later recovered, and found to be unloaded, after Morgan managed to escape for a second time.
After the close of the prosecution’s case during the ensuing jury trial, the defendant moved for a judgment of acquittal, asserting that case law was clear that a person cannot commit an assault with an unloaded firearm and, because that crime is a lesser-included offense of §69, he similarly could not be held liable for the “greater” charge, citing the 2016 People v. Brown decision by the First District’s Div. Four.
That decision held, after a concession by the prosecutor, that a trial judge erred by failing to sua sponte instruct on simple assault as a lesser-included offense of §69
Then-Sonoma Superior Court Judge Bradford DeMeo (now retired) denied the request and declined to instruct on assault as a lesser-included offense. After the jury found Morgan guilty of the charge and a related firearm enhancement, DeMeo sentenced him to more than seven years in prison.
Present Ability
On appeal, Div. One of the First District declined to follow Brown, explaining, in its 2024 decision, that the Legislature had failed to include the “present ability” language in §69 even though the section was adopted at the same time as §240. Having dispensed with that requirement, the court declared:
“[T]he frightening and dangerous scenario that unfolded here—which indisputably impeded the officers as they tried to perform their lawful duties and put…bystanders…at serious risk….—comes within the bounds of the language and purpose of section 69….”
Yesterday, Evans sided with Div. One and declared:
“We disapprove Brown to the extent it is inconsistent with our reasoning.”
Diving into the text of the section, Evans explained:
“Section 69(a) proscribes a range of conduct including resisting, deterring, or obstructing an executive officer in the immediate or future performance of his or her duty. At one end of the continuum of prohibited conduct, section 69(a) criminalizes attempted deterrence or hindrance by ‘threat or violence’ (first prong), and at the other end, actual resistance by ‘force or violence’ (second prong). (Italics added.)”
Force on Officer
Pointing out that Morgan only addressed the second prong because the information against him only charged him with using force or violence on a police officer, she continued:
“Morgan raises the same ‘tripartite argument’ he pursued below: (1) section 69(a)’s second prong requires an assault; (2) assault cannot be committed with an unloaded firearm and there was no evidence he used a loaded gun to resist the officers; and (3) the evidence was therefore insufficient to support the charged offenses under section 69(a)’s second prong….Because we conclude his first premise is incorrect, his challenge to his conviction fails.”
Lawyers with the Office of the Attorney General contested Morgan’s ability to raise the issue as framed because the accusatory pleading test, which asks a court to determine whether a lesser offense is necessarily included in a greater crime by examining only the allegations in the charging documents, does not apply to a sufficiency of the evidence challenge. Responding to this contention, the jurist remarked:
“We conclude that the second method of violating section 69(a) can be committed without also committing an assault. Accordingly, we neither consider nor resolve whether the accusatory pleading test applies in a sufficiency of the evidence challenge because Morgan’s argument does not succeed on the merits.”
Second Prong
Addressing the second prong, she opined:
“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. Morgan finds little support from case law, as Brown offered only a cursory analysis after the People conceded the issue for the purposes of appeal….The People here offer the better interpretation of section 69 as proscribing conduct that may overlap with, but can be entirely distinct from, assault.”
Saying that “[e]ven accepting for the sake of argument Morgan’s interpretation of ‘force or violence’ as requiring physical force, section 69(a) still reasonably embraces conduct that may not constitute an assault under section 240,” Evans remarked:
“[F]iring a weapon at an officer who is out of range, for example, constitutes both an attempt to deter or prevent officers from performing their duty and forceful or violent resistance. The Legislature reasonably chose to criminalize such conduct under both prongs of section 69.”
Rejecting the view that the court’s interpretation renders the “attempt” portion of the first prong to be surplusage, she commented:
“The potential for some overlap between the ‘attempt’ and resisting by ‘the use of force or violence’ prongs of section 69….does not require a different result. Morgan acknowledges potential scenarios ‘that would be a violation of both offenses.’ This concession is well-taken. The Legislature can freely employ [two means] to accomplish its goals.”
The case is People v. Morgan, 2026 S.O.S. 531.
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