{"id":78,"date":"2026-02-26T12:00:00","date_gmt":"2026-02-26T12:00:00","guid":{"rendered":"https:\/\/california.shuster.info\/?p=78"},"modified":"2026-02-26T12:00:00","modified_gmt":"2026-02-26T12:00:00","slug":"people-v-morgan-assault-not-lesser-included-resisting-officer","status":"publish","type":"post","link":"https:\/\/california.shuster.info\/?p=78","title":{"rendered":"People v. Morgan \u2014 Assault Is Not a Lesser Included Offense of Resisting an Officer by Force or Violence"},"content":{"rendered":"
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\n
Case<\/dt>\n
People v. Morgan<\/dd>\n
Court<\/dt>\n
Supreme Court<\/dd>\n
Date Decided<\/dt>\n
2026-02-26<\/dd>\n
Docket No.<\/dt>\n
S286493<\/dd>\n
Status<\/dt>\n
Reported \/ Citable<\/dd>\n
Topics<\/dt>\n
Penal Code section 69, lesser included offenses, assault, resisting an officer, present ability<\/dd>\n<\/dl>\n<\/div>\n

Background<\/h2>\n

California Penal Code section 69 makes it a crime to resist an executive officer (such as a police officer) “by the use of force or violence” while the officer is performing official duties. Separately, Penal Code section 240 defines assault as an unlawful attempt \u2014 coupled with a “present ability” \u2014 to commit a violent injury on another person. The “present ability” element is doctrinally important: a person who points an unloaded firearm at someone else generally cannot be convicted of assault, because there is no immediate, working capacity to cause injury.<\/p>\n

The legal question in this case was whether assault is a “lesser included offense” of resisting an officer by force or violence. A lesser included offense is a less serious crime that is necessarily committed whenever the greater crime is committed. The classification matters because, when one offense is a lesser included of another, jurors may be required to consider the lesser charge, and a defendant generally cannot be convicted of both for the same act.<\/p>\n

During a confrontation with Sonoma County police, Henry Morgan pointed a firearm at officers, racked the slide, and pulled the trigger. The gun did not fire, and when officers eventually retrieved it, the weapon was unloaded. Morgan was convicted under Penal Code section 69(a) of resisting officers by force or violence. On appeal, he argued that because there was no evidence the gun was loaded, he lacked the “present ability” required for assault \u2014 and if assault is a lesser included offense of resisting by force or violence, then a failure of that element should also defeat the resistance conviction. The Court of Appeal disagreed and rejected the lesser-included argument, while criticizing an earlier decision that had implied the opposite.<\/p>\n

The Court’s Holding<\/h2>\n

Justice Evans, writing for a unanimous court, held that assault is not a lesser included offense of resisting an officer by force or violence. Section 69 punishes a defendant for forcefully or violently obstructing an officer; it does not, by its terms or by its history, require that the defendant have a present, immediate ability to inflict actual injury. A person who uses or attempts to use force against an officer can hinder, deter, or resist that officer regardless of whether the means employed could in fact cause physical harm at that exact moment. Pulling the trigger of an unloaded gun, swinging at an officer with an object that turns out to be a poor weapon, or otherwise resisting in a way that is forceful even though ineffectual can still violate section 69.<\/p>\n

By contrast, the offense of assault demands proof of the very element missing here \u2014 the immediate, present ability to cause violent injury. Because that element is required for assault but not for the section 69 offense, assault is not necessarily included within resisting an officer by force or violence. The court applied the standard test for lesser included offenses: an offense is lesser included only if every element of the lesser is also an element of the greater. Present ability is essential to assault but not essential to section 69, so the test fails.<\/p>\n

The court also disapproved earlier appellate authority, People v. Brown, to the extent it had treated assault as a lesser included offense of section 69 based on a prosecutorial concession the People now described as improvident. Morgan’s conviction stood, and the lower courts’ analysis was endorsed.<\/p>\n

Key Takeaways<\/h2>\n