“Present Ability” to Commit Serious Bodily Injury is an Essential Element in the Crime of Assault

“Present Ability” to Commit Serious Bodily Injury is an Essential Element in the Crime of Assault

Despite Physical Limitations, the Defendant Had the “Present Ability” to Commit Assault

Defendant was an unhoused, one-leg amputee, confined to a wheelchair, and required assistance to stand from his chair. He was partaking of fine dining in a Santee fast-food restaurant when he began causing a disturbance and yelling obscenities. San Diego Sheriff’s Department responded. Defendant was told that he could move to the outdoor area to finish his meal, but only if he did so peacefully. A short time later, defendant was found laying on his back in the wheelchair as if he had fallen backwards. Fire department personnel responded and assisted him back into the chair and departed. A short time after, defendant began yelling and shouting vulgarities again. Restaurant workers came outside and asked him to leave the premises. He was bouncing up and down in his wheelchair and wheeled the chair towards the workers. Defendant tried to gain stability by standing up on his right leg and supporting himself with one hand on a table. He began swinging a foldable Buck knife, with a 4”-5” exposed blade, in a side-swipe motion (“I’m going to fucking kill you”. “I’m going to stab you”). Though not fully standing, he lunged towards the workers. The knife blade came within 12” or less of the closest restaurant worked. The worker likely would have been struck had he not backed off. The workers and six customers then retreated inside the restaurant.

Workers came outside and again told the defendant to leave. Defendant began wheeling his chair towards him and thrust the knife forward, missing by several inches. Again, had the victim not backed up and retreated, he could have been struck. The San Diego County Sheriff's Department was called and the defendant was arrested. The knife was found in a folded condition in an adjacent planter box.

During a San Diego County Superior Court trial by judge, defendant challenged his ....