People v. Valdez

Facts

Kenneth McKinley, an employee at a gas station in California, was at the cashier’s window of the gas station when Rogelio Valdez (Defendant) paid $4 for gas. After Defendant pumped $4 of gasoline, Defendant returned to the window and began to argue with McKinley, stating that Defendant had paid $5, not $4. During the course of the argument, Defendant lifted his jacket, and McKinley saw that there was a gun in Defendant’s belt. McKinley moved away from the window. Defendant pointed the gun at McKinley, and McKinley called the police. While McKinley was on the phone, Defendant fired the gun three times at the bulletproof glass behind which McKinley was sitting. Defendant was unaware that the glass was bulletproof. McKinley then saw Defendant drive away. Defendant was later arrested with a loaded gun in his possession. At trial, Defendant was found guilty of assault with a firearm, which was defined as an unlawful attempt, coupled with a present ability, to commit a violent injury upon a victim’s person. Defendant appealed, arguing that there was insufficient evidence that Defendant had the present ability to injure McKinley due to the bulletproof glass.