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14 Berkeley J. Crim. L. 229 (2009)
People v. Chance: Analyzing the Assault Statute's "Present Ability" Requirement

handle is hein.journals/bjcl14 and id is 229 raw text is: People v. Chance: Analyzing the Assault
Statute's Present Ability Requirement
Stuart Robinsont
Between 1997 and 2006 there were 5,045,904 felony arrests in
California.1 During that same time span there were 1,094,130 arrests for
assault.2 Indeed, in each of those years arrests for assault vastly outnumbered
all other types of violent offenses combined.3 Arrests for assault also
outnumbered every other specific type of felony arrest.4 In light of these
statistics, the assault statute has the potential to affect more criminal defendants
than any other section of the California Penal Code.     It is hardly an
overstatement, then, to suggest that the Supreme Court's opinion in People v.
Chance was the most important criminal case decided during the 2008 term.
Chance afforded the Court an opportunity to interpret section 240 of the
Penal Code. That section provides that [a]n assault is an unlawful attempt,
coupled with a present ability, to commit a violent injury on the person of
another. The Court considered the present ability requirement and held that
sufficient evidence supported the assault conviction of a two-strike offender.
Reversing the judgment of the Court of Appeal, the Court clarified its holdings
in prior assault cases concerning the required mental state under section 240. It
also-and more importantly-established a test to evaluate a defendant's
present ability to injure his intended victim.
The casenote proceeds in three parts.   Part I discusses the factual
background and procedural history of Chance. It also explores the reasoning of
both Justice Corrigan's majority opinion and Justice Kennard's dissenting
opinion. Part II considers prior decisions that influenced the reasoning in those
opinions. In addition, this part briefly places California's assault law in context
t  J.D. Candidate 2009, University of California, Berkeley, School of Law.
1. Department of Justice, California Criminal Justice Profile 2006, Total Felony Arrests,
available at http://stats.doj.ca.gov/cjsc stats/profO6/00/3A.htm (last visited April 9, 2009).
2. Id.
3. Id.
4. Id.

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