Date: Feb 28, 2026

People v. Morgan: Penal Code § 69(a) “Force or Violence” Resistance Does Not Include Assault’s “Present Ability” Element

1. Introduction

In People v. Morgan (Cal. Feb. 26, 2026) S286493, the California Supreme Court addressed whether assault (Pen. Code, § 240) is a lesser included offense of the second prong of Penal Code section 69, subdivision (a)—i.e., “knowingly resist[ing], by the use of force or violence, an executive officer in the performance of duty.”

The case arose from a volatile encounter in which Henry Morgan pointed a handgun at officers, “racked” the slide, and pulled the trigger; the gun clicked but did not fire. When recovered later, it was unloaded and no ammunition was found. Morgan was convicted under the force-or-violence prong of § 69(a). He argued his conviction could not stand because (1) assault is necessarily included in that prong, and (2) an unloaded gun cannot support assault due to § 240’s “present ability” element.

The Supreme Court affirmed the conviction, holding that assault is not a lesser included offense of resisting an officer “by the use of force or violence” under § 69(a) because § 69(a) does not require assault’s “present ability” to inflict injury. The Court also disapproved People v. Brown (2016) 245 Cal.App.4th 140 to the extent inconsistent.

2. Summary of the Opinion

Holding: Assault (§ 240) is not a lesser included offense of the second prong of § 69(a) (resisting an officer “by the use of force or violence”).
Core rationale: Assault requires a “present ability” to commit violent injury; § 69(a)’s force-or-violence resistance does not include that element in its text and does not implicitly incorporate it.
Doctrinal consequence: A § 69(a) conviction under the force-or-violence prong does not rise or fall on whether the evidence proves assault—e.g., the unloaded status of a firearm does not categorically defeat § 69(a).
Disapproval: People v. Brown (2016) 245 Cal.App.4th 140 is disapproved “to the extent it is inconsistent with this opinion.”
Reserved issue: The Court did not decide whether the accusatory pleading test can be used to challenge the sufficiency of the evidence, because Morgan’s claim failed on the merits.

3. Analysis

A. Precedents Cited

1) Assault doctrine and the “present ability” requirement

People v. Williams (2001) 26 Cal.4th 779: Used to restate assault’s mental element: no specific intent, but an intentional act done with awareness that it will probably and directly result in injury; also quoted for the operational meaning of “present ability” (the “next movement” would cause injury “at least to all appearance”).
People v. Rocha (1971) 3 Cal.3d 893: Cited for the definition of “violent injury” as a wrongful act using physical force against another’s person.
People v. Bradbury (1907) 151 Cal. 675: Referenced (via Rocha) to support that assault requires an attempt to use physical force even if injury is not completed.
People v. Rundle (2008) 43 Cal.4th 76: Cited for the proposition that “present ability” is a critical component of assault.
People v. Rodriguez (1999) 20 Cal.4th 1: Cited for the principle that pointing an unloaded gun at someone does not constitute assault because it lacks immediate opportunity to injure by shooting.
People v. Chance (2008) 44 Cal.4th 1164: Quoted for the “present ability” standard: attained means and location to strike immediately; used to illustrate that “present ability” is a distinct assault element that is fact-specific but not textually part of § 69(a).

2) Relationship between assault and battery (and why that analogy does not control § 69(a))

People v. Colantuono (1994) 7 Cal.4th 206: Cited for the conventional relationship that battery is “assault carried to completion,” and therefore assault is a lesser included offense of battery. The Court uses this backdrop to emphasize that inclusion turns on statutory elements—here, § 69(a) lacks assault’s “present ability.”

3) Section 69’s two prongs and lawful-duty requirements

In re Manuel G. (1997) 16 Cal.4th 805: Central to the Court’s description of § 69’s structure. It supports the interpretation that the first prong covers attempts to deter an officer’s immediate or future performance, including when the officer is not actively performing duties at the time of the threat.
People v. Smith (2013) 57 Cal.4th 232: Used in two ways: (a) to confirm that the first prong can be satisfied by threats alone and thus does not require force; and (b) to show the second prong requires conduct beyond “mere threats.” The Court also distinguishes Smith because it addressed § 148(a)(1) as a lesser included offense of § 69’s force-or-violence prong—not whether assault is included.
People v. Gonzalez (1990) 51 Cal.3d 1179: Cited for the rule that under § 69’s second prong, the officer must be engaged in the performance of a lawful duty at the time of resistance.

4) Lesser-included doctrine and procedural framing

People v. Reed (2006) 38 Cal.4th 1224: Cited as authority describing the “accusatory pleading test” as a judicially created method for identifying lesser included offenses. The Court notes the dispute about whether this test can be used in sufficiency challenges but ultimately avoids deciding the issue.
People v. Stevens (2007) 41 Cal.4th 182: Cited for the § 1118.1 standard: sufficiency of evidence depends on whether substantial evidence supports each element of the charged offense. The Court uses it to justify focusing on statutory elements of § 69(a), rather than importing assault elements.

5) Statutory-interpretation framework and legislative-intent presumptions

People v. Prunty (2015) 62 Cal.4th 59: De novo review of statutory interpretation.
People v. Braden (2023) 14 Cal.5th 791: Fundamental task: ascertain legislative intent to effectuate statutory purpose.
People v. Gonzales (2018) 6 Cal.5th 44: Ordinary meaning and statutory context.
People v. Anderson (2009) 47 Cal.4th 92: Crime as a collection of specific elements chosen by the Legislature; each must exist.
Richfield Oil Corp. v. Crawford (1952) 39 Cal.2d 729 and In re C.H. (2011) 53 Cal.4th 94: Invoked for the inference that different words in contemporaneously enacted provisions imply different meanings—supporting the conclusion that the Legislature did not silently incorporate “present ability” into § 69(a).
People v. Overstreet (1986) 42 Cal.3d 891: The Legislature is presumed aware of existing laws; used to support the view that repeated amendments to § 69 without adding “present ability” reflect intent not to include it.
People v. Fontenot (2019) 8 Cal.5th 57: Cited in addressing Morgan’s surplusage argument; the Court explains why its reading does not render statutory language meaningless.

6) The key analog: rejecting implied “present ability” in a related firearm context

People v. Licas (2007) 41 Cal.4th 362: The opinion’s most important analog. In Licas, the Court held assault with a firearm was not necessarily included in “shooting at another person from a vehicle,” because the shooting offense lacked assault’s “present ability” element. Morgan applies the same logic: when a statute does not include the assault concept in its text (e.g., by using the term “assault” or including “present ability”), courts should not infer it, even if conduct frequently overlaps.
In re Daniel R. (1993) 20 Cal.App.4th 239: Cited (as in Licas) for the idea that discharging a firearm “at” an occupied vehicle does not necessarily include assault with a deadly weapon.

7) Disapproved authority and appellate backdrop

People v. Morgan (2024) 103 Cal.App.5th 488: The Court of Appeal decision under review; it reached the same conclusion and criticized Brown’s cursory treatment.
People v. Brown (2016) 245 Cal.App.4th 140: The Supreme Court disapproves it to the extent it assumed assault is necessarily included in § 69’s force-or-violence prong, noting Brown relied on a People’s concession and offered minimal analysis.
People v. Wiley (2025) 17 Cal.5th 1069: Mentioned to note the Court had “recently disapproved on other grounds” the Court of Appeal opinion below; not central to the present holding.

B. Legal Reasoning

Elemental comparison drives lesser-included analysis. The Court reiterates that crimes are defined by statutory elements (People v. Anderson (2009) 47 Cal.4th 92), and a “lesser included” offense must be necessarily encompassed by the greater offense’s elements.
Assault’s “present ability” is essential and non-negotiable. Assault under § 240 has always required an unlawful attempt “coupled with a present ability” to commit violent injury; the Court emphasizes this as a “critical component” (People v. Rundle (2008) 43 Cal.4th 76; People v. Chance (2008) 44 Cal.4th 1164).
Section 69(a)’s second prong omits “assault” and omits “present ability.” The Court treats the statutory text as dispositive: § 69(a) prohibits resisting an officer “by the use of force or violence” but does not say “assault,” and does not require “present ability.” Under familiar interpretive canons, that omission signals legislative choice (citing Richfield Oil Corp. v. Crawford (1952) 39 Cal.2d 729; In re C.H. (2011) 53 Cal.4th 94).
Overlapping factual scenarios do not justify importing missing elements. Even if many § 69(a) prosecutions will involve assaultive behavior, the Court underscores that overlap is not identity. Like People v. Licas (2007) 41 Cal.4th 362, § 69(a) can reach conduct that is “forceful or violent” resistance without satisfying assault’s immediate-capability requirement (e.g., violent resistance when the officer is too far away for immediate injury).
“Surplusage” concerns do not change the result. Morgan argued that rejecting a present-ability requirement would collapse the distinction between § 69’s attempt prong and resistance prong. The Court rejects this: the prongs still differ materially because the first prong includes mere threats and can target attempts to deter future performance, while the second prong requires actual resistance by force/violence during lawful duty performance (In re Manuel G. (1997) 16 Cal.4th 805; People v. Smith (2013) 57 Cal.4th 232).
People v. Brown is disapproved because it lacked analysis and rested on a concession. The Court characterizes Brown’s lesser-included conclusion as unreasoned and therefore not persuasive, especially in light of the missing statutory element.
The Court avoids deciding the accusatory pleading question. Because Morgan’s claim fails at the element-comparison stage, the Court expressly does not decide whether the accusatory pleading test can be used in a sufficiency challenge.

C. Impact

Charging and proof: Prosecutors pursuing the § 69(a) force-or-violence prong need not prove facts establishing assault’s “present ability.” Conduct that hinders lawful police duties through forceful or violent resistance can support § 69(a) even if it would not satisfy § 240 (e.g., certain unloaded-firearm scenarios, depending on facts).
Jury instructions (lesser included offenses): Trial courts are less likely to have a sua sponte duty to instruct on simple assault as a lesser included offense of § 69(a)’s second prong, because it is not “necessarily included.” This narrows a common defense pathway reflected in People v. Brown (2016) 245 Cal.App.4th 140.
Section 1118.1 motions and appellate sufficiency claims: Defendants can no longer credibly argue that insufficiency of evidence of assault (e.g., lack of present ability) compels acquittal on § 69(a)’s force-or-violence prong.
Doctrinal clarity: The decision aligns § 69(a) analysis with the Court’s methodology in People v. Licas (2007) 41 Cal.4th 362—courts should not infer the “present ability” element into statutes that do not incorporate assault by name or by equivalent language.

4. Complex Concepts Simplified

Lesser included offense: A crime is “lesser included” within another if you cannot commit the greater crime without also committing the lesser one—because the greater crime’s elements necessarily include the lesser’s. Here, the Court held you can violate § 69(a)’s force-or-violence resistance without satisfying assault’s “present ability,” so assault is not necessarily included.
Assault’s “present ability” (§ 240): Assault is not just an attempt or threat; it requires that the defendant is in a position where the next movement would immediately enable injury (for example, pointing an unloaded gun lacks immediate ability to shoot).
Section 69’s two prongs: Section 69 criminalizes (1) attempting by threat or violence to deter/prevent an officer from performing duty (including future duty), and (2) knowingly resisting an officer by force or violence while the officer is performing lawful duties. The case concerns only prong (2).
Accusatory pleading test: A doctrine sometimes used to decide lesser included offenses by looking not only at statutory elements but also at how the charging document describes the offense. The Court did not decide whether this test can be used as a way to argue the evidence was insufficient; it held Morgan loses even without resolving that procedural issue.

5. Conclusion

People v. Morgan establishes a clear statewide rule: assault is not a lesser included offense of the § 69(a) force-or-violence form of resisting an executive officer, because § 69(a) does not require assault’s “present ability” element. By disapproving People v. Brown (2016) 245 Cal.App.4th 140 to the extent inconsistent, the Court removes a key doctrinal support for treating § 69(a) resistance as necessarily assaultive. Going forward, litigants and trial courts must treat § 69(a)’s second prong as an offense that may overlap with assault but is not defined by assault’s elements—especially the immediate-capability requirement.