Morgan

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,…