## Facts

- Rogelio Valdez argued with Kenneth McKinley, a gas-station cashier, about whether Valdez had paid $4 or $5 for gasoline.
- During the argument, Valdez lifted his jacket, revealing a pistol in his waistband.
- McKinley moved away from the cashier-window opening; Valdez then pointed the pistol in McKinley’s direction.
- McKinley began calling police from a phone about ten feet away, immediately behind him.
- McKinley heard three shots and impacts on the cashier’s window; he then saw Valdez flee by car.
- An eyewitness across the street heard a gunshot and saw a man standing about four feet from the window firing toward it.
- The cashier’s window was protected by bulletproof glass; McKinley was not injured.
- Police later stopped Valdez and recovered a loaded firearm from his vehicle; Valdez admitted firing out of anger but denied aiming at McKinley.
- After a court trial, Valdez was convicted of assault with a firearm (Cal. Penal Code § 245(a)(2)), and a personal firearm-use enhancement was found true (Cal. Penal Code § 12022.5).

## Issues

1. Whether substantial evidence supported that Valdez aimed at, or intended to injure, McKinley when he fired.
2. Whether substantial evidence supported the “present ability” element of assault where the victim was behind bulletproof glass that prevented injury.

## Decision

- The Court of Appeal affirmed the conviction and firearm-use enhancement.
- The court held substantial evidence supported an inference that Valdez pointed and fired in McKinley’s direction with the requisite intent for assault with a firearm.
- The court held the victim’s bulletproof glass did not defeat “present ability” where Valdez had a loaded, operable gun, close proximity, and fired at the victim’s position.

## Legal Principles

- On review for sufficiency of the evidence, the court considers the record in the light most favorable to the judgment and draws reasonable inferences supporting it.
- For assault, “present ability” focuses on the defendant’s means and immediate opportunity to inflict injury (e.g., a loaded, operable weapon and close proximity), not on whether an external obstacle makes injury factually impossible.
- A protective barrier used by the victim (or provided for the victim’s protection) does not negate assault when the defendant has moved beyond preparation by aiming and firing a functional firearm at the victim’s location.
- “Present ability” differs from cases involving unloaded guns or nonfunctional weapons, which may lack the means to inflict the threatened injury.

## Conclusion

The court upheld Valdez’s assault-with-a-firearm conviction because evidence showed he pointed and fired a loaded gun at the cashier’s position, and the cashier’s bulletproof glass was an external defensive barrier that did not eliminate the statutory “present ability” to commit a violent injury.


People v. Valdez, 175 Cal. App. 3d 103 (Cal. Ct. App. 1985)