People v. Morgan

IN THE SUPREME COURT OF

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

HENRY MORGAN,

Defendant and Appellant.

S286493

First Appellate District, Division One

A166435

Sonoma County Superior Court

SCR7469261

February 26, 2026

Justice Evans authored the opinion of the Court, in which

Chief Justice Guerrero and Justices Corrigan, Liu, Kruger,

Groban, and Tucher* concurred.

__________________________

* Presiding Justice of the Court of Appeal, First Appellate

District, Division Three, assigned by the Chief Justice pursuant

to article VI, section 6 of the California Constitution.

PEOPLE v. MORGAN

S286493

Opinion of the Court by Evans, J.

During a confrontation with law enforcement, defendant

Henry Morgan aimed a firearm at police officers, “racked” its

slide, and pulled the trigger. The weapon did not discharge and

when officers eventually recovered it, it was unloaded.

Defendant was convicted of resisting an officer by “the use of

force or violence” pursuant to Penal Code section 69, subdivision

(a).1 He challenges his conviction, arguing that assault (§ 240)

is a lesser included offense of resisting an officer by force or

violence. He asserts that because there was no evidence the

weapon was loaded, he could not be convicted of assault and

therefore could not be convicted of resisting an officer under

section 69, subdivision (a) (section 69(a)).

We conclude that assault is not a lesser included offense

of resisting an officer by force or violence. Specifically, resisting

by force or violence does not require the “present ability” (§ 240)

to commit a violent injury, an essential element of assault. The

text of section 69, read in context with other provisions of the

Penal Code and the statute’s purpose of proscribing forceful or

violent conduct that hinders law enforcement, compels this

interpretation.

In a published opinion, the Court of Appeal reached the

same conclusion. (People v. Morgan (2024) 103 Cal.App.5th 488,

1

All undesignated references are to the Penal Code.

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Opinion of the Court by Evans, J.

508, 513 (Morgan).) In its ruling, the Court of Appeal criticized

People v. Brown (2016) 245 Cal.App.4th 140 (Brown), in which

a different Court of Appeal had accepted the People’s concession

that assault is a lesser included offense of resisting an officer by

use of force or violence.2 (Morgan, at pp. 504–505.) We conclude

that assault is not a lesser included offense of resisting an officer

by force or violence because such resistance does not require a

present ability to cause injury. We disapprove People v. Brown,

supra, 245 Cal.App.4th 140, to the extent it is inconsistent with

our reasoning.3

I.

Since its enactment in 1872, section 240 has defined

assault as an “unlawful attempt, coupled with a present ability,

to commit a violent injury on the person of another.” Assault

does not require a showing of specific intent. (People v. Williams

(2001) 26 Cal.4th 779, 788 (Williams).) Instead, assault requires

only that the act itself was intentional, and that the would-be

assaulter was aware that his or her conduct would probably and

directly result in violent injury. (Id. at p. 790.) Violent injury is

any wrongful act which uses physical force against the person of

another. (People v. Rocha (1971) 3 Cal.3d 893, 899, fn. 12

(Rocha).) To commit assault, a person must attempt to use some

physical force, even if the violent injury is not actually

completed. (See ibid., relying on People v. Bradbury (1907) 151

Cal. 675, 676–677 (Bradbury).)

2

The People here assert that their concession in Brown,

supra, 245 Cal.App.4th 140, was improvident.

3

We recently disapproved on other grounds the Court of

Appeal opinion below. (See People v. Wiley (2025) 17 Cal.5th

1069, 1086.)

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Opinion of the Court by Evans, J.

A critical component of assault is the defendant’s

immediate and present ability to commit an injury. (People v.

Rundle (2008) 43 Cal.4th 76, 143–144.) Present ability is met

when “ ‘ “[t]he next movement would, at least to all

appearance,” ’ ” cause the threatened injury. (Williams, supra,

26 Cal.4th at p. 786, italics omitted.) A person who points an

unloaded gun at someone else does not commit assault because

that person does not have the immediate opportunity to injure

by shooting. (People v. Rodriguez (1999) 20 Cal.4th 1, 11, fn. 3.)

Assault has a clear relationship to battery, defined by

section 242. “A battery is any willful and unlawful use of force

or violence upon the person of another.” (§ 242.) Battery is

merely assault taken to its logical next step — the actual

application of force. (People v. Colantuono (1994) 7 Cal.4th 206,

216.) Because battery requires all the elements of assault,

assault is a lesser included offense of battery. (Id. at pp. 216–

217.)

Section 69 has remained substantially the same since its

contemporaneous enactment with sections 240 and 242. Section

69 makes it a crime to “attempt[], by means of any threat or

violence, to deter or prevent an executive officer from

performing any duty imposed upon the officer by law” and to

“knowingly resist[], by the use of force or violence, the officer, in

the performance of his or her duty.” (§ 69(a).) Accordingly, there

are two ways to violate section 69.

The first manner of violation is broad, encompassing

attempts to deter or hinder an officer in the performance of their

duty, even if that officer has not yet begun to act. (In re Manuel

G. (1997) 16 Cal.4th 805, 814–815, 817) A defendant does not

need to use force or violence to violate section 69 in this way,

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Opinion of the Court by Evans, J.

since the deterrence may be accomplished by mere threats.

(People v. Smith (2013) 57 Cal.4th 232, 240–241 (Smith).) We

have explained this prong “encompasses attempts to deter either

an officer’s immediate performance of a duty imposed by law or

the officer’s performance of such a duty at some time in the

future.” (In re Manuel G., at p. 817.) Relatedly, “the relevant

factor is simply the lawfulness of the official conduct that the

defendant (through threat or violence) has attempted to deter,

and not the lawfulness (or official nature) of the conduct in

which the officer is engaged at the time the threat is made.”

(Ibid.)

By contrast, the second prong of section 69 punishes

“[e]very person . . . who knowingly resists, by the use of force or

violence, the officer, in the performance of his or her duty.”

(§ 69(a).) Two distinctions from the first prong are clear. First,

the second prong proscribes conduct that must rise above the

level of mere threats. (Smith, supra, 57 Cal.4th at p. 241.)

Second, the officer must be engaged in the performance of a

lawful duty at the time of the resistance. (People v. Gonzalez

(1990) 51 Cal.3d 1179, 1217.) Because Morgan was charged only

with resistance by force or violence of an officer in the

performance of his or her duty, we are concerned with only the

second prong of the statute. The first prong, however, remains

relevant in analyzing the legislative intent behind the second.

This case arises out of defendant Henry Morgan’s conduct

and eventual arrest on June 17, 2021. On that day, California

Highway Patrol Officer Matthew Goulding was patrolling an

area of Sonoma County in his marked vehicle when he observed

two men in an apparent stand-off in an empty lot. Morgan was

holding a knife and standing about eight to ten feet away from

another man, who was holding a rock in his raised hand. Officer

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Opinion of the Court by Evans, J.

Goulding exited his vehicle and drew his gun. He ordered both

men to drop their weapons and get on the ground, and they

complied. As Officer Goulding approached them, Morgan stood

up, ignoring the officer’s repeated commands, got into a nearby

vehicle, and drove away.

Morgan returned as Goulding was arresting the second

man and other officers were arriving on the scene. Morgan

exited the car, yelling at the officers, and eventually drew a

handgun. During his testimony at trial, Morgan claimed he

wanted an officer to kill him. He testified that he “instantly just

grabbed the gun and pointed it at them, . . . cocked it back,

pulled the trigger so it could look like [he] was — so it could look

like in a menacing manner so [he] could just instantly get

killed.” Officers at the scene testified that Morgan waved the

gun throughout the interaction and repeatedly ignored the

officers’ commands to drop the weapon. At least once, Morgan

pointed the gun directly at an officer, who heard an audible click

when Morgan pulled the trigger, but the gun never discharged.

Morgan eventually got back into his vehicle and drove

away. Officers pursued Morgan and arrested him after he

exited his vehicle and attempted to escape on foot. At the time

of his arrest, Morgan did not have a gun. Officers later found a

pistol in the front passenger seat of Morgan’s car. The firearm

was unloaded, and no ammunition was found on Morgan’s

person or in the vehicle.

Morgan was charged with three counts of resisting an

executive officer in violation of section 69(a) “in that [he] did

knowingly resist by the use of force and violence” three separate

officers in the performance of their duties. The information also

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Opinion of the Court by Evans, J.

alleged that Morgan personally used a gun while resisting the

officers.4 (§ 12022.5, subd. (a).)

After the close of the prosecution’s case, the defense moved

under section 1118.1 for a judgment of acquittal on each of the

three resisting counts. Defense counsel argued that assault was

a lesser included offense of resisting an officer by force or

violence. (Morgan, supra, 103 Cal.App.5th at p. 502.) Counsel

went on to assert that under established precedent interpreting

the assault statute, Morgan could not have committed assault

with an unloaded firearm. (Ibid.) Because the prosecution

presented no evidence that Morgan’s gun was ever loaded,

Morgan could not be convicted of assault. (Ibid.) Therefore,

defense counsel concluded that Morgan was entitled to a

judgment of acquittal on the “greater” charges of resisting an

officer by force or violence. (Ibid.) Morgan relied primarily on

Brown, in which a Court of Appeal accepted the People’s

concession that assault was a lesser included offense of resisting

an executive officer. (See Brown, supra, 245 Cal.App.4th at p.

153.) The trial court denied Morgan’s motion for a judgment of

acquittal, reasoning that resisting an officer by force may not

always constitute an assault. (Morgan, at p. 503.) The court

also declined to instruct the jury on assault as a lesser included

offense. (Ibid.)

The jury found Morgan guilty of one count of resisting

Officer Goulding but could not reach a verdict on the other two

counts. Morgan was sentenced to an aggregate term of seven

years four months in prison.

4

Morgan was also charged with and convicted of other

offenses not at issue here.

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Opinion of the Court by Evans, J.

Morgan appealed his conviction, again asserting that

assault is a lesser included offense of resistance by force or

violence under section 69. (Morgan, supra, 103 Cal.App.5th at

p. 503.) The Court of Appeal declined to follow Brown, noting

that the analysis in that case was merely a “single sentence.”

(Morgan, at p. 505.) The court also rejected Morgan’s

interpretation of section 69 on multiple grounds. Morgan

argued that the “force or violence” prohibited in section 69(a)

was equivalent to the “force or violence upon the person of

another” contemplated in the Penal Code’s battery provision,

section 242. (Morgan, at p. 507.) The court disagreed, noting

that despite enacting sections 69, 240, and 242

contemporaneously, the Legislature had declined to include

assault’s “present ability” (§ 240) or assault and battery’s on or

upon “the person of another” (§§ 240, 242) elements in section

69. (Morgan, at pp. 507–509.) The court also found relevant

that the Legislature has used the term “assault” in other

statutes prohibiting the use of force against officers but did not

use the term in section 69. (Morgan, at p. 508.) Because a

“strong inference arises that a different meaning was intended”

when the legislature uses distinct words or phrases in

contemporaneous legislation, the court therefore concluded that

section 69 has no requirement of “a threshold quantum of force

or violence, or the use of force or violence ‘upon the person of’ the

officer.” (Morgan, at p. 508.)

The Court of Appeal then reasoned that section 69 used

“force or violence” not in any particular legal fashion, but rather

in the common usage. (Morgan, supra, 103 Cal.App.5th at p.

512.) Accordingly, the court asked whether the common usage

of “force or violence” in section 69 could include conduct that

does not constitute assault under section 240. (Morgan, at p.

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Opinion of the Court by Evans, J.

512.) The court determined that section 69’s text and general

purpose of punishing delay or obstruction of executive officers

indicated a legislative intent to criminalize conduct beyond the

scope of section 240. (Morgan, at p. 512.) The court reasoned

that public policy did not support narrowing section 69 to

exclude forcible or violent resistance that did not meet the

elements of assault. (Morgan, at p. 513.) Concluding assault

was not a lesser included offense of resisting an officer, the

Court of Appeal held that Morgan was not entitled to a judgment

of acquittal on the resisting charge based on the insufficiency of

evidence supporting assault. (Ibid.) Morgan timely appealed,

asking this court to resolve the apparent conflict between the

opinion below and the reasoning in Brown, supra, 245

Cal.App.4th 240.

II.

Section 69(a) proscribes a range of conduct including

resisting, deterring, or obstructing an executive officer in the

immediate or future performance of his or her duty. At one end

of the continuum of prohibited conduct, section 69(a)

criminalizes attempted deterrence or hindrance by “threat or

violence” (first prong), and at the other end, actual resistance by

“force or violence” (second prong). (Italics added.)

Morgan argues that resistance by the use of force or

violence always requires an assault. He focuses only on the

second prong of section 69(a) because the first clearly does not

require the use or attempted use of force and accordingly lacks

a required element of assault. He argues instead that the third

amended information, which charged him with only the force or

violence prong of the statute, necessarily included the lesser

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Opinion of the Court by Evans, J.

charge of assault. To do so, he relies on the “accusatory pleading

test.”

The People contest Morgan’s ability to raise this issue

because the accusatory pleading test has not previously been

used to challenge the sufficiency of the evidence supporting a

conviction. Even assuming the accusatory pleading test applies

here, the People contend that resisting by force or violence does

not require several essential elements of assault and therefore

assault is not a lesser included offense of such resistance.

We agree with the People that resistance by force or

violence under section 69 does not necessarily include the crime

of assault. Forcefully resisting an officer does not require the

“present ability” (§ 240) to commit injury, an essential element

of assault.5 Because we reject Morgan’s claim as to the lesser

included offense, we do not address whether the accusatory

pleading test can apply in a challenge to the sufficiency of the

evidence.

We review the interpretation of a statute de novo. (People

v. Prunty (2015) 62 Cal.4th 59, 71.) As with all cases of statutory

interpretation, “ ‘ “ ‘ “[o]ur fundamental task . . . is to determine

the Legislature’s intent so as to effectuate the law’s

purpose.” ’ ” ’ ” (People v. Braden (2023) 14 Cal.5th 791, 804.)

“We first look to ‘the language of the statute, affording the words

their ordinary and usual meaning and viewing them in their

statutory context.’ ” (People v. Gonzales (2018) 6 Cal.5th 44, 49–

50.)

5

We do not address the additional conclusions reached by

the Court of Appeal, including its analysis of the meaning of

“force or violence” and the “on the person” element of assault.

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Opinion of the Court by Evans, J.

When interpreting a criminal statute, we bear in mind

that “ ‘[e]very crime consists of a group of elements laid down by

the statute or law defining the offense and every one of these

elements must exist or the statute is not violated.’ ” (People v.

Anderson (2009) 47 Cal.4th 92, 101.) In short, a criminal offense

is “a collection of specific factual elements that the Legislature

has chosen to define as a crime.” (Ibid.)

Morgan raises the same “tripartite argument” he pursued

below: (1) section 69(a)’s second prong requires an assault; (2)

assault cannot be committed with an unloaded firearm and

there was no evidence he used a loaded gun to resist the officers;

and (3) the evidence was therefore insufficient to support the

charged offenses under section 69(a)’s second prong. (See

Morgan, supra, 103 Cal.App.5th at p. 503.) Because we

conclude his first premise is incorrect, his challenge to his

conviction fails.

Morgan concedes that assault is not a lesser included

offense of the first prong of section 69(a). Assault requires proof

of a “ ‘wrongful act committed by means of physical force against

the person of another.’ ” (Rocha, supra, 3 Cal.3d at p. 899, fn.

12.) By contrast, attempting by threat or violence to deter or

prevent an officer from performing his or her duty does not

require the use of physical force. (Smith, supra, 57 Cal.4th at p.

240.) Because the use of physical force is not required to violate

section 69, Morgan cannot and does not challenge the first

prong. (See also Brown, supra, 245 Cal.App.4th at p. 152.)

The People argue that Morgan’s challenge fails

procedurally because Morgan inappropriately invokes the

“accusatory pleading test,” a judicially created tool for

determining whether a lesser included offense exists. (See

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Opinion of the Court by Evans, J.

People v. Reed (2006) 38 Cal.4th 1224, 1228.) This dispute,

however, does not bear on the legal issue we resolve here.

Morgan relies on the statutory text of the second prong of

section 69(a), asserting that resisting an officer by “the use of

force or violence” necessarily includes assault on the officer in

the course of resistance. (Ibid.) The lower courts appropriately

resolved this challenge on the first premise of Morgan’s

argument — whether such text properly includes all required

elements of assault. (See People v. Stevens (2007) 41 Cal.4th

182, 200 [“ ‘The standard applied by a trial court in ruling upon

a motion for judgment of acquittal pursuant to section 1118.1 is

the same as the standard applied by an appellate court in

reviewing the sufficiency of the evidence to support a conviction,

that is, “whether from the evidence, including all reasonable

inferences to be drawn therefrom, there is any substantial

evidence of the existence of each element of the offense

charged.” ’ ”].) We do the same.

We conclude that the second method of violating section

69(a) can be committed without also committing an assault.

Accordingly, we neither consider nor resolve whether the

accusatory pleading test applies in a sufficiency of the evidence

challenge because Morgan’s argument does not succeed on the

merits.

Assault is not a lesser included offense of resisting an

officer by force or violence because such resistance does not

require a present ability to cause injury. Section 69(a)’s

resistance by “the use of force or violence” language makes no

mention of present ability. Morgan finds little support from case

law, as Brown offered only a cursory analysis after the People

conceded the issue for the purposes of appeal. (See Brown,

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Opinion of the Court by Evans, J.

supra, 245 Cal.App.4th at p. 153.) The People here offer the

better interpretation of section 69 as proscribing conduct that

may overlap with, but can be entirely distinct from, assault.

The plain language of violating section 69(a) “by the use of

force or violence” does not support Morgan’s conclusion that the

Legislature intended to target only conduct constituting assault

on executive officers. Morgan argues the phrase “force or

violence” requires assault on the officer in the course of

resistance. In his view, the Legislature intended to codify the

common law definitions of the terms “force” and “violence,”

which were both synonymous with “physical force.” (See

Stokeling v. United States (2019) 586 U.S. 73, 78; Bradbury,

supra, 151 Cal. at pp. 676–677.) Because battery is “any willful

and unlawful use of force or violence upon the person of another”

(§ 242), and assault is an unrealized battery, Morgan concludes

that the Legislature had assault in mind when it included “force

or violence” in section 69(a). The People argue that the phrase

“force or violence” in section 69(a) has a distinct meaning from

“force or violence” in the assault and battery contexts. The

People and the Court of Appeal conclude that the terms force

and violence are subject to their ordinary meanings and thus do

not require physical force. (Morgan, supra, 103 Cal.App.5th at

p. 512.) The People further reason that section 69(a) does not

require a showing of attempted physical force, a required

element of assault, and that the second prong can punish

conduct that is merely violent.

Even accepting for the sake of argument Morgan’s

interpretation of “force or violence” as requiring physical force,

section 69(a) still reasonably embraces conduct that may not

constitute an assault under section 240. Assault requires

additional elements beyond merely the attempted application of

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Opinion of the Court by Evans, J.

force. As demonstrated below, Morgan’s arguments fail due to

assault’s “present ability” requirement.

Assault requires a “present ability[] to commit a violent

injury on the person of another.” (§ 240.) The “present ability”

element “is satisfied when ‘a defendant has attained the means

and location to strike immediately.’ ” (People v. Chance (2008)

44 Cal.4th 1164, 1168.) In the context of assault, “immediately”

means the defendant must be quite close to committing the

threatened injury. (Id. at pp. 1172–1173.) While this temporal

question deals with a “continuum” of conduct and is accordingly

fact specific, we have generally held the present ability is met

when a defendant can commit the injury in only a few further

steps or actions. (Id. at p. 1173.) There is no requirement,

however, that courts reach that fact-bound inquiry where the

only charge is forceful or violent resistance.

Morgan contends that resistance by “the use of force or

violence” under section 69(a) requires the defendant to have the

“present ability to commit a violent injury on the person of

another” (§ 240), despite the absence of this language in the

statute. He argues the difference between the attempt prong

and the resisting by “the use of force or violence” prong of section

69 is present ability. To hold otherwise, in his view, would erase

any distinction between the two categories of conduct proscribed

by the statute.

The People disagree, observing that the Legislature chose

not to include any “present ability” language in section 69(a).

We agree this absence is dispositive. Nothing in the text of the

statute supports a “present ability” requirement. A defendant

may resist an officer by the use of force or violence without

having the present ability to commit a violent injury. The use

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of force or violence prong would still be met if a defendant, for

example, threw a brick or fired a gun at an officer who was too

far away to be injured. Interpreting the statutory prong to cover

such conduct hews closer to the legislative purpose of

proscribing violent conduct designed to hinder or resist arrest.

Our decision in People v. Licas (2007) 41 Cal.4th 362

(Licas) is instructive. At issue in Licas was whether the trial

court erred by failing to instruct the jury on assault with a

firearm (§ 245, subd. (a)(2)) as a lesser included offense of

shooting at another person from a vehicle (§ 12034, subd. (c)).

(Licas, at p. 366.) Penal Code former section 12034, subdivision

(c) established that “[a]ny person who willfully and maliciously

discharges a firearm from a motor vehicle at another person

other than an occupant of a motor vehicle is guilty of a felony

punishable by imprisonment in state prison for three, five, or

seven years.” (Repealed by Stats. 2010, ch. 711, § 4, eff. Jan. 1,

2012.) Section 245, subdivision (a)(2) punished “[a]ny person

who commits an assault upon the person of another with a

firearm.”

We first looked to the text of the “greater” offense, outlined

in former section 12034, subdivision (c). We noted that the

provision contained no “present ability” requirement, an

element incorporated into section 245 by its mention of

“assault.” (Licas, supra, 41 Cal.4th at p. 367.) We then noted

that the assault provision (§ 240) had maintained the “present

ability” element since its 1872 enactment. (Licas, at p. 367.) We

reasoned that the Legislature “presumably was aware of the

present-ability requirement in the closely related assault

statute, but intended to omit it as an element of the shooting

offense.” (Ibid.; see also People v. Overstreet (1986) 42 Cal.3d

891, 897 (Overstreet) [“[T]he Legislature is deemed to be aware

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of existing laws” and is presumed to enact statutes against the

backdrop of prior judicial decisions.].) Therefore, nothing in the

statutory text supported the incorporation of a “present ability”

requirement into former section 12034. (Licas, at p. 367.)

We likewise rejected the argument that former section

12034 functionally required present ability by requiring

shooting “at” another person. (Licas, supra, 41 Cal.4th at p.

370.) We noted that present ability connotes the actual

“attainment of the means and location to strike immediately.”

(Ibid.) We then reasoned that a defendant who is in a position

to shoot “at” another person might not actually have the means

to hit his or her target if, for example, the target is out of range.

(Ibid.) Accordingly, the word “at” did not require “immediate

presence or a location necessarily within striking distance of an

intended target.” (Ibid.; see also In re Daniel R. (1993) 20

Cal.App.4th 239, 247 [concluding “assault with a deadly weapon

is not necessarily included in the crime of willfully and

maliciously discharging a firearm at an occupied vehicle”].)

Based on this missing element, we therefore concluded that

assault with a firearm was not necessarily included in the

offense of shooting at another person from a vehicle. (Licas, at

pp. 370–371.)

Similar considerations apply to section 69. The second

prong of section 69(a) prohibits knowing resistance, “by the use

of force or violence, [of] the officer, in the performance of his or

her duty.” The statute, as originally enacted

contemporaneously with section 240, does not mention the

terms “assault” or “present ability.” We agree with the People

that such omissions from section 69, which concerns criminal

conduct related to assault, signals differing legislative intent

across the two provisions. (See Richfield Oil Corp. v. Crawford

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(1952) 39 Cal.2d 729, 735; In re C.H. (2011) 53 Cal.4th 94,

107 [“When the Legislature uses different words or phrasing in

contemporaneously enacted statutory provisions, a strong

inference arises that a different meaning was intended.”],

superseded by statute on another ground as stated in In re

Edward C. (2014) 223 Cal.App.4th 813, 824.)

Unlike the statute in Licas, section 69’s enactment does

not postdate section 240’s passage. Although not conclusive, the

Legislature’s choice to repeatedly amend section 69, yet leave

the statute’s substantive elements unchanged, is relevant to our

task of discerning legislative intent. The Legislature amended

section 69 in 1957, 1976, 1983, 2011, and 2015, modifying the

penalty provisions but leaving the elements of the offense

essentially unchanged. Lawmakers did not add a “present

ability” requirement to conform to the statutory elements of

assault, even after we declined to infer a “present ability”

requirement in an analogous situation in Licas, supra, 41

Cal.4th at pp. 370–371. Such inaction supports the inference

that the Legislature did not intend to incorporate a present

ability requirement into section 69. (See Overstreet, supra, 42

Cal.3d at 897.)

Nor does the word “resist[],” when paired with “the use of

force or violence” in section 69(a), functionally incorporate a

“present ability” requirement. Resistance by force or violence

does not “ ‘necessarily connote immediate presence or a location

necessarily within striking distance of an intended target.’ ”

(Licas, supra, 41 Cal.4th at p. 369.) One can resist an officer

who is “beyond the reasonable range” of immediate physical

force or violence. (Ibid.) For example, a defendant might resist

by throwing a brick at the officer, even though the target officer

is too far away to be potentially injured. This act would

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constitute resistance of the officer by means of force or violence,

but the “present ability” requirement would remain unsatisfied.

Defendant suggests the example above is a violation of the

first prong of section 69(a), but not the second. However,

“present ability” is not necessary to distinguish between the

“attempt” prong and the resistance by “the use of force or

violence” prong of section 69(a). Again, Licas is informative. We

reasoned that although firing a gun “at” another person from a

vehicle carries a risk of immediate violent injury, it does not

necessarily require a present ability to commit a violent injury

on another. (Licas, supra, 41 Cal.4th at p. 370.) Likewise,

resisting by means of force or violence may often include the risk

of injury, but does not necessarily require a present ability, as is

the case for assault.

In Morgan’s view, declining to interpret the resisting by

“the use of force or violence” prong of section 69(a) as requiring

“present ability” would render it mere surplusage of the

“attempt” prong of the statute. (See People v. Fontenot (2019) 8

Cal.5th 57, 73 [“[W]henever reasonably possible, courts avoid

reading statutes in a way that renders ‘meaningless’ language

the Legislature has chosen to enact.”].) This critique is

unpersuasive.

Our interpretation retains the independent meaning of

each statutory prong. In contrast to actual resistance, the first

prong still encompasses mere threats without any use of force.

(Smith, supra, 57 Cal.4th at pp. 240–241.) In addition to

proscribing different swathes of conduct, the two prongs impose

distinct temporal requirements, as discussed above. “[A] person

who telephones an off-duty officer at his or her home and

threatens to kill the officer if he or she continues to pursue a

17

PEOPLE v. MORGAN

Opinion of the Court by Evans, J.

lawful investigation the following day or week may be convicted

of the first type of offense under section 69, even though the

officer was not engaged in the performance of his or her duties

at the time the threat was made.” (In re Manuel G., supra, 16

Cal.4th at p. 817.) Although the second prong does not

encompass the present ability element of assault, forceful

resistance must occur while the officer is actually in the

performance of a lawful duty. (See id. at p. 818.)

The potential for some overlap between the “attempt” and

resisting by “the use of force or violence” prongs of section 69(a)

does not require a different result. Morgan acknowledges

potential scenarios “that would be a violation of both offenses.”

This concession is well-taken. The Legislature can freely

employ “ ‘a belt and suspenders approach’ ” to accomplish its

goals. (Garland v. Gonzalez (2022) 596 U.S. 543, 564 (conc. &

dis. opn. of Sotomayor, J.).) The Legislature could have

rationally chosen to include some redundancy in the statute to

criminalize a broad range of actions that hinder law

enforcement. (See Atlantic Richfield Co. v. Christian (2020) 590

U.S. 1, 14, fn. 5; see also Harris v. Capital Growth Investors XIV

(1991) 52 Cal.3d 1142, 1157 [“The Legislature is a pragmatic

political body; its primary concern is . . . to accomplish practical

results”].) Morgan’s actions here highlight the Legislature’s

practical concerns. As discussed above, firing a weapon at an

officer who is out of range, for example, constitutes both an

attempt to deter or prevent officers from performing their duty

and forceful or violent resistance. The Legislature reasonably

chose to criminalize such conduct under both prongs of section

69.

Nor does case law support a “present ability” requirement

in section 69(a). Morgan argues that the court below erred by

18

PEOPLE v. MORGAN

Opinion of the Court by Evans, J.

refusing to follow the reasoning in Brown, where a different

Court of Appeal construed section 69 to include assault when

the charged crime was resisting an officer by force or violence.

(Brown, supra, 245 Cal.App.4th at p. 153.) In that case, Brown

successfully convinced the Court of Appeal that the trial court

should have sua sponte instructed the jury on simple assault as

a lesser included offense. (Id. at p. 149.)

We do not find Brown persuasive. Notably, the People in

Brown conceded for the purposes of appeal that “ ‘section 240

was a necessarily included offense of section 69 as alleged in the

amended information.’ ” (Brown, supra, 245 Cal.App.4th at p.

153.) The Brown court therefore did not elaborate on its

reasoning, nor did it analyze the text of either statute. (See

ibid.) With the benefit of full briefing from the People and the

reasoning of the Morgan Court of Appeal, it is clear that forceful

resistance under section 69 does not require a “present ability”

to inflict injury. The paucity of reasoning in Brown, although it

reaches Morgan’s desired result, is no answer to this missing

statutory element.

Brown relied on one case, Smith, supra, 57 Cal.4th 232,

which is similarly unconvincing here. (Brown, supra, 245

Cal.App.4th at p. 153.) In that case, we analyzed a different

offense: the act of resisting an officer in the performance of the

officer’s duty or employment, also known as simple resisting. (§

148, subd. (a)(1) [prohibiting “willfully resist[ing], delay[ing], or

obstruct[ing] any . . . peace officer . . . in the discharge or

attempt to discharge any duty of his or her office or

employment”].) We held that simple resisting was a lesser

included offense of the resisting by “the use of force or violence”

prong of section 69. (Smith, at pp. 240–242.) Notably, the Smith

court made no mention of assault or the present ability to

19

PEOPLE v. MORGAN

Opinion of the Court by Evans, J.

commit a violent injury. In contrast to the defendant in Smith,

Morgan can cite to no clear textual similarities between section

69 and section 240. Accordingly, Smith has no bearing on our

interpretation here.

Assault, which requires a present ability to cause injury,

is not a lesser included offense of knowingly resisting an officer

by the use of force or violence in violation of section 69, which

does not.6

III.

The judgment of the Court of Appeal is affirmed.

EVANS, J.

We Concur:

GUERRERO, C. J.

CORRIGAN, J.

LIU, J.

KRUGER, J.

GROBAN, J.

TUCHER, J.*

6

We disapprove People v. Brown, supra, 245 Cal.App.4th

240 to the extent it is inconsistent with this opinion.

* Presiding Justice of the Court of Appeal, First Appellate

District, Division Three, assigned by the Chief Justice pursuant

to article VI, section 6 of the California Constitution.

20

See next page for addresses and telephone numbers for counsel who

argued in Supreme Court.

Name of Opinion People v. Morgan

__________________________________________________________

Procedural Posture (see XX below)

Original Appeal

Original Proceeding

Review Granted (published) XX 103 Cal.App.5th 488

Review Granted (unpublished)

Rehearing Granted

__________________________________________________________

Opinion No. S286493

Date Filed: February 26, 2026

__________________________________________________________

Court: Superior

County: Sonoma

Judge: Bradford J. DeMeo

__________________________________________________________

Counsel:

Michael Allen and Maria Leftwich, under appointments by the

Supreme Court, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant

Attorney General, Jeffrey M. Laurence, Assistant Attorney General,

Seth K. Schalit, Donna M. Provenzano, David H. Rose and Basil R.

Williams, Deputy Attorneys General, for Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for

publication with opinion):

Maria Leftwich

First District Appellate Project

1212 Broadway, Suite 1200

Oakland, CA 94612

(415) 495-3119

Basil R. Williams

Deputy Attorney General

455 Golden Gate Avenue, Suite 11000

San Francisco, CA 94102

(415) 510-3885