''Present Ability'' Legal Definition
In People v. Valdez (1985) 175 Cal.App.3d 103 (Valdez), Valdez fired bullets at a person protected by bulletproof glass.
Valdez reviewed a number of authorities discussing the subject of "present ability" and the California Supreme Court quoted Valdez with approval as follows:
"'Nothing suggests this "present ability" element was incorporated into the common law to excuse defendants from the crime of assault where they have acquired the means to inflict serious injury and positioned themselves within striking distance merely because, unknown to them, external circumstances doom their attack to failure.
This proposition would make even less sense where a defendant has actually launched his attack--as in the present case--but failed only because of some unforeseen circumstance which made success impossible. Nor have we found any cases under the California law which compel this result.
The decisions holding a defendant lacks "present ability" when he tries to shoot someone with an unloaded gun or a toy pistol do not support any such proposition. In those situations, the defendant has simply failed to equip himself with the personal means to inflict serious injury even if he thought he had.'" (Chance, supra, 44 Cal.4th at p. 1174, quoting Valdez, supra, 175 Cal.App.3d at p. 112.)
"'Once a defendant has attained the means and location to strike immediately he has the "present ability to injure."
The fact an intended victim takes effective steps to avoid injury has never been held to negate this "present ability."'" (Chance, supra, 44 Cal.4th at p. 1174, quoting Valdez, supra, 175 Cal.App.3d at p. 113; see also People v. Craig (1991) 227 Cal.App.3d 644, 649-650 "if a third person prevents the assaultive blow from hitting its mark or the victim outmaneuvers the bullet with a timely duck, the defendant may be guilty of assault. on the other hand, if the defendant aims with a toy gun or attempts to poison with powdered sugar, there can be no criminal assault".)