Steele

I concur in parts II. to V. of the Discussion in the majority opinion, but blaze a separate trail with respect to the analysis in part I. of the sufficiency of the evidence of assault. While the majority correctly states the pertinent principles, I disagree that they compel reversal (and dismissal ( Burks v. United States (1978) 437 U.S. 1 , 16 [ 57 L.Ed.2d 1 , 98 S.Ct. 2141 ]; cf. People v. Seel (2004) 34 Cal.4th 535 , 541 [ 21 Cal.Rptr.3d 179 , 100 P.3d 870 ])) of count three. "[T]he key to the court's analysis [in People v. Valdez (1985) 175 Cal.App.3d 103 [ 220 Cal.Rptr. 538 ]] was whether the circumstances and events which prevented injury were within the defendant's control and whether the method and actions chosen by the defendant were otherwise capable of inflicting injury," concluding that it is preferable to treat the *Page 1212 element of present ability as a focus only on "the ability of the person attempting the unlawful injury and not to the external circumstances beyond his or her control which might prevent injury. . . ." ( People v. Craig (1991) 227 Cal.App.3d 644 , 648-649 [ 278 Cal.Rptr. 39 ]; see id. at p. 649.) "The . . . court found [this] approach more . . .…

[EDITORS' NOTE: THIS OPINION IS DEPUBLISHED UPON GRANTING OF PETITION FOR REVIEW. THE OPINION APPEARS BELOW WITH A GRAY BACKGROUND.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 1197 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 1198 OPINION A jury convicted Kenneth Elbert Steele of assault, assault by means of force likely to produce great bodily injury, terrorist threats and attempted false imprisonment. (Pen. Code, §§ 240 , 245 , subd. (a)(1), 422, 664, 236; further unspecified section references are to this code.) The trial court sentenced defendant to prison for three years eight months, and he timely filed this appeal. We reverse the felony assault conviction because no substantial evidence shows that defendant had the "present ability" to ignite oven gas and thereby injure the victim. We reject defendant's other claims and remand for resentencing. *Page 1199 BACKGROUND The victim was defendant's "on and off again" girlfriend for about three years. For a while they lived together in the…

A jury convicted Kenneth Elbert Steele of assault, assault by means of force likely to produce great bodily injury, terrorist threats and attempted false imprisonment. (Pen. Code, §§ 240, 245, subd. (a)(1), 422, 664, 236; further unspecified section references are to this code.) The trial court sentenced defendant to prison for three years eight months, and he timely filed this appeal.

We reverse the felony assault conviction because no substantial evidence shows that defendant had the "present ability" to ignite oven gas and thereby injure the victim. We reject defendant's other claims and remand for resentencing.

The victim was defendant's "on and off again" girlfriend for about three years. For a while they lived together in the victim's "10 by 54" foot mobilehome, at the Almond Grove Mobile Home Park. As late as Christmas 2005, the victim hoped the relationship would work out. They were not living together and the victim had moved out of the mobilehome, although she kept kittens there that she took care of. On December 28, 2005, while the victim was at the mobilehome, defendant arrived; when she asked him if he had been using drugs, he became enraged. He pinned…