Lead Opinion
Opinion
In this case we determine whether the trial court properly instructed the jury on assault and assault with a deadly weapon (Pen. Code, §§ 240,245). To do so, we again analyze the intent or mental state necessary to establish these offenses and “hopefully eliminate the contusion on this issue which has developed throughout the courts of this state.” (People v. Rocha (1971)
The facts are brief but tragic: Early on the evening of November 17, 1990, four young men, all friends of appellant, were congregated on a neighborhood street corner talking and engaging in a certain amount of horseplay. Appellant approached the group and exchanged greetings. One of the young men, Gabriel Laguna, tried to draw appellant into a “play fight.” When appellant declined, Laguna persisted and mildly taunted him. Appellant became somewhat irritated or angry and then drew a .357 magnum revоlver from his waistband and pointed it at Laguna.
According to some of the witnesses, Laguna attempted to push the weapon away several times, but appellant continued to aim it at him. At this point appellant either said, “I’m going to shoot you,” or Laguna asked, “Are you going to shoot me?” In any event, the gun discharged seconds later, shooting Laguna in the neck and totally paralyzing him. Appellant asked the victim “Did I shoot you?” or stated “I shot him” and then ran away. He later turned himself in to the police.
With slight discrepancies, the four percipient witnesses, including the victim, recounted the foregoing events at trial. Appellant took the stand in his own behalf and testified that when he approached his friends on the street comer, he was contemplating taking his own life later that evening. He did not know the gun was loaded, although he had bullets for it in his jacket pocket. Appellant claimed he did not intend to shoot the victim, and fired the weapon only accidentally as Laguna pushed it away. He armed himself for protection against gangs but never carried the gun loaded when he was out on the street. Numerous defense witnesses testified to appellant’s character for nonviolence.
The trial court gave the standard instructions on assault and assault with a deadly weapon,
On appeal, appellant contended the language cited above impermissibly relieved the prosecution of proving every element of the offense beyond a reasonable doubt because it created a mandatory presumption as to his intent. In a divided opinion, the Court of Appeal concluded the modification did not remove the question of intent from the jury’s consideration. The court found that the instructions as a whole acсurately stated (he substance of the law and set forth the predicate facts that would establish assault with a deadly weapon, including the requisite mental state. We granted appellant’s petition for review to resolve a developing conflict in decisions of the Courts of Appeal.
Discussion
The portion of the instruction on assault with a deadly weapon in question appears in the Comments to CALJIC No. 9.02, supra, which in turn cites People v. Lathus (1973)
In Rocha, supra, we squarely confronted the issue and held, in accord with long-standing tradition as well as the legislative history of Penal Code section 245, that assault with a deadly weapon is a general intent crime.
From the foregoing we can distill the following principles concerning the mental state for assault: Thе mens rea is established upon proof the defendant willfully committed an act that by its nature will probably and directly result in injury to another, i.e., a battery. Although the defendant must intentionally engage in conduct that will likely produce injurious consequences, the prosecution need not prove a specific intent to inflict a particular harm. (Cf. Pen. Code, § 7, subd. 1 [“ ‘willfully,’ when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act, or make the omission referred to”].) The evidence must only demonstrate that the defendant willfully or purposefully attempted a “violent injury” or “the least touching,” i.e., “any wrongful act committed by means of physical force against the person of another.” (People v. McCoy (1944)
Although our discussion in Rocha accurately focused on the violent-injury-producing nature of the defendant’s acts, rather than on a separate and independent intention to cause such injury, as the starting point for determining the requisite intent for assault, a certain measure of understandable analytical uncertainty continues. (See, e.g., People v. Cavazos (1985)
We may trace much of the confusion, if not consternation, on this subject to the traditional shorthand characterization of assault as “attempted battery” and the unexamined assumption that, as with other attempted crimes, it must require a specific intent to commit the underlying offense. (See Pen. Code, § 21a; see, e.g., People v. Cavazos, supra,
“The original concept of criminal assault developed at an earlier day than the doctrine of criminal attempt in general, and crystallized on a much narrower basis in the sense of a greater degree of proximity. . . . ‘The distinction may be thus defined: An assault is an act done toward the commission of a battery; it must precede the battery, but it does so immediately. The next movement would, at least to all appearance, complete the battery . . . . [A]n act constituting an attempt to commit a felony may be more remote ....’” (Perkins on Criminal Law (2d ed. 1969) ch. 2, § 2, pp. 118-119; see also People v. Miller, supra,
Assault thus lies on a definitional, not merely a factual, continuum of conduct that describes its essential relation to battery: An assault is an incipient or inchoate battery; a battery is a consummated assault. “An assault
Considered from this perspective, it is clear that the question of intent for assault is determined by the character of the defendant’s willful conduct considered in conjunction with its direct and probable consequences. If one commits an act that by its nature will likely result in physical force on another, the particular intention of committing a battery is thereby subsumed. Since the law seeks to prevent such harm irrespective of any actual purpose to cause it, a general criminal intent or willingness to commit the act satisfies the mens rea requirement for assault. “As Professor Perkins puts it: ‘Intent includes those consequences which (a) represent the very purpose for which an act is done (regardless of the likelihood of occurrence), or (b) are known to be substantially certain to result (regardless of desire).’ ” (Lathus, supra,
Thus, the observation in People v. Carmen, supra, that “One could not very well ‘attempt’ or try to ‘commit’ an injury on the person of another if he had no intent to cause any injury to such other person” is technically accurate. (
Returning to the problem at hand: The portion of the instruction on assault with a deadly weapon appellant finds constitutionally objectionable derives from Lathus, supra,
In assessing the evidence, the Lathus court acknowledged, “Reckless conduct alone does not constitute a sufficient basis for assault or for battery even if the assault results in an injury to another. [Citation.] ...[<][] However, when an act inherently dangerous to others is committed with a conscious disregard of human life and safety, the act transcends recklessness, and the intent to commit the battery is presumed; the law cannot tolerate a deliberate and conscious disregard of human safety. Thus, if one deliberately employs a lethal weapon, such as a gun, with actual or presumptive knowledge that if utilized in the manner in which it is being used the infliction of serious bodily injury to another is very likely to occur, he is presumed to have intended the natural consequences of his deliberate act. As Professor Perkins put it: ‘Intent includes those consequences which (a) represent the very purpose for which an act is done (regardless of the likelihood of occurrence), or (b) are known to be substantially certain to result (regardless of desire).’ (Perkins on Criminal Law (2d ed.) ch. 7, § 1, p. 747.)” (Lathus, supra, 35 Cal.App.3d at pp. 469-470.)
The intent issue arose in an instructional context for the first time in Burres, supra,
We are unpersuaded that the Lathus instruction in this case created an unconstitutional burden-shifting presumption. In our estimation, the language at issue describes or defines conduct constituting an assault, including the element of general criminal intent. (See Rocha, supra,
Although we find no error here, neither do we sanction the language in Lathus, supra,
For the reasons discussed above, we reject appellant’s claim that the augmentation of CALJIC No. 9.02 created a constitutionally impermissible presumption or warrants reversal of his conviction. Moreover, even if the trial court erred, that fact would not alter the result here: Given the jury’s express finding that appellant inflicted great bodily injury within the meaning of Penal Code section 12022.7, any possible deficiency was, beyond a reasonable doubt, not prejudicial. (People v. Lesnick (1987)
Disposition
The judgment of the Court of Appeal is affirmed.
Lucas, C. J., Panelli, J., Baxter, J., and George, J., concurred.
Notes
The court essentially gave the current version of CALJIC No. 9.00 (5th ed. 1988 bound vol.), which instructed the jury that the crime of assault is established upon proof of the following elements:
“1. An unlawful attempt was made to apply physical force upon the person of another,
“2. At the time of such attempt the person who made the attempt had the present ability to apply such physical force, and
“3. The person making the attempt had a general criminal intent, which, in this case, means that such person intended to commit an act, the direct[,] natural and probable consequences of which if successfully completed would be the application of physical force upon the person of another.
“To constitute an assault, it is not necessary that any actual injury be inflicted. However, if an injury is inflicted it may be considered in connection with other evidence in determining
This instruction accompanied CALJIC No. 9.02 (5th ed. 1988) defining assault with a deadly weapon, which in part requires proof that “[a] person was assaulted.”
In general, the governing principles of law on intent are the same for both assault and assault with a deadly weapon. (See CALJIC No. 9.02, supra.) For convenience, our analysis may at times refer simply to “assault”; unless otherwise indicated or apparent, such reference encompasses both crimes.
Justice Kennard argues that Rocha was wrongly decided and that a specific intent to injure is necessary to establish the mental state of assault. For several reasons, we decline to reconsider the conclusion that a general intent to commit an injurious act suffices. First, our analysis in Rocha fully accords with more than a century of precedent holding that “no specific intent is necessary to constitute the crime ...” (People v. Gordan (1894)
Second, characterizing аssault as a specific intent crime is inconsistent with the legislative history of assault with a deadly weapon, which at one time included an “intent to do great bodily harm” but was amended by the Legislature to delete that requirement. (Cal. Code Amends. 1873-1874, ch. 614, § 22, p. 428; compare People v. Turner, supra,
A footnote to the discussion at this point further explains a critical analytical point: “A battery must be contemplated, but only an ‘injury’ as that term is used with respect to a battery need be intended. ‘It has long been established, both in tort and criminal law, that “the least touching" may constitute battery. In other words, force against the person is enough, it need not be violent or severe, it need not cause bodily harm or even pain, and it need not leave any mark.’ [Citation.] [1] ‘The “violent injury” here mentioned is not synonymous with “bodily harm,” but includes any wrongful act committed by means of physical force against the person of another, even although only the feelings of such person are injured by the act.’ [Citation.]” (Rocha, supra, 3 Cal.3d at pp. 899-900, fn. 12.) Accordingly, references throughout this opinion to “violent injury" or “violent-injury-producing” acts should be understood in light of this explication.
Relying in part on the cited language, at least one Court of Appeal decision found “it now settled that assault is a specific intent crime. [Citations.]” (People v. Fanning (1968)
In some instances, a charge of assault may be coupled with another substantive offense, e.g., assault with intent to commit rape, in which case the perpetrator must have some further objective to accomplish by the assaultive conduct. Given its goal-oriented character, this type of crime does require a specific intent to commit the underlying offense.
To illustrate the distinction: In the usual case of an attempted crime, the law requires that the defendant intend to commit the underlying offense, not simply to willfully engage in the preliminary act or acts that would result in the underlying offense if completed. (See People v. Snyder (1940)
In assessing the language of People v. Carmen, supra,
Of equal importance factually, the record established that the defendant presented evidence he did not intentionally aim at his victims when the gun he was carrying discharged; it fired accidentally when he stumbled while approaching the victims’ car. (People v. Carmen, supra, 36 Cal.2d at pp. 772, 774, 776.) On this basis, the jury could have found, and therefore should have been instructed, that he did not commit an act likely to result in violent injury, but only failed to act with due caution and circumspection for which he would only be guilty of manslaughter. (Id., at p. 776.)
People v. Carmen, supra, thus did not alter the mеntal state for assault or inject an “intent to harm” requirement. On the contrary, our decision expressly acknowledged that “in assault cases intent need not be specific—to cause any particular injury and it may be implied from the act [citation] . . . .” (
To the extent we may have extrapolated from Carmen an “intent to injure” in a later dictum in People v. Coffey, supra,
For this reason, the trier of fact may look to the completed battery to determine whether the defendant committed an assault, i.e., willfully engaged in conduct that would directly, naturally, and probably result in injury to another when in fact such injury actually occurred. (See People v. Heise (1933)
This conclusion does not preclude a defendant charged with assault from presenting evidence that he or she did not intend to injure or do violence to the victim. (People v.
To the extent Burres, supra,
As with any other element of the crime, the jury may properly consider circumstantial evidence in determining the question of intent. (See People v. Parks, supra, 4 Cal.3d at pp. 961-962; People v. Morrow (1969)
Indeed, this case illustrates the danger of assuming that a correct statement of substantive law will provide a sound basis for charging the jury. (See People v. Smith (1989)
Concurrence Opinion
We granted review to clarify the nature of the mental component of the unlawful-attempt element of assault. This step became necessary because a minor dictum in People v. Rocha (1971)
The majority conclude that to prove assault “The evidence must . . . demonstrate that the defendant willfully or purposefully attempted a ‘violent injury’ or ‘the least touching,’ i.e., ‘any wrongfiil act committed by means of physical force against the person of another.’ [Citation.]” (Maj. opn., ante, pp. 214-215.) The majority are correct.
Section 240 describes an “attempt” to “commit” an injury. In People v. Carmen (1951)
As the majority note (maj. opn., ante, pp. 217-218 & fn. 8), Carmen was correct. I agree.
The majority’s conclusion is strongly buttressed by the legislative history of the assault statute. The code commissioners’ note to section 240 provides in relevant part (and with all italics in the original): “Intent to Strike.—An assault has also been said to be an intentional attempt, by violence, to do an injury to the person of another. It must be intentional. If there is no present purpose to do an injury, there is no assault. There must also be an attempt. A purpose not accompanied by an effort to carry into immediatе execution falls short of an assault. Thus no words can amount to an assault. But rushing towards another with menacing gestures, and with a purpose to strike, is an assault, though the accused is prevented from striking before he comes near enough to do so. . . .” (Code comrs. note foll. Ann. Pen. Code, § 240 (1st ed. 1872, Haymond & Burch, comrs.-annotators) p. 104.) This statement is authoritative. (See Walker v. Superior Court (1988)
Thus, Carmen’s conclusion that assault requires a purpose to injure was sound. As we stated in People v. Wolcott (1983)
Rocha was by and large soundly decided, and the dictum quoted above constituted a minor flaw. But so is a pinhole in a dike, and alas, the dictum gave rise to mischief. The “direct, natural and probable consequences” aside now forms the basis of the standard jury instruction on assault (CALJIC No. 9.00 (5th ed. 1988 bound vol.)), and also formed the basis of the instruction given in this case.
Giving an instruction based on CALJIC No. 9.00 violated state law and the federal Constitution because its language permitted the jury to convict defendant of assault without finding beyond a reasonable doubt that he had a purpose to injure. (See People v. Williams (1992)
Thus, the standard instruction on assault requires reexamination. The majority are right to warn, however, that the jury can find the actor’s purpose was to injure by the circumstances surrounding the act. (See maj. opn., ante, pp. 218-219, fn. 10.)
Although giving the instructions violated state law and the federal Constitution, the errors were harmless because, as the majority observe, the jury specifically found that defendant intended to inflict great bodily injury on the victim. Any federal constitutional errors, on the basis of the instructions at issue here, of misstating an element of a crime, or of taking from the jury
The required mental state for simple assault and assault with a firearm, as charged here (§ 245, subd. (a)(2)), is the same. The greater crime varies from the lesser only in that it contains the additional element of the usе of a firearm. There is no additional or different mental element.
Amicus curiae California Attorneys for Criminal Justice contends that the “direct, natural and probable consequences” formulation contained in Rocha, supra,
There is no need to decide this point, for as long as that language omits the legislative requirement of a purpose to injure, it suffices to say that it is incorrect, whatever level of culpability it represents. But viewed in the abstract, the Rocha formulation may actually stand for strict ¿ability, because it omits any mental component whatever beyond the intent to do an act. For the Rocha language to mean recklessness, it would need to specify that the act was done in conscious disregard of the risk.
Clearly Rocha, supra,
Concurrence Opinion
is the culpable mental state required to commit an assault? Is it the intent to do an act, the likely consequence of which is physical injury to another? Or is it the intent to physically injure another?
In this case, the majority concludes that “a general criminal intent to commit the act suffices to establish the requisite mental state” of the crime of assault, so long as “the defendant willfully committed an act that by its nature will probably and directly result in injury to another . . . .” (Maj. opn., ante, pp. 214-215.) The majority reaches this conclusion by reaffirming and attempting to clarify our decision in People v. Rocha (1971)
The crime of assault is defined by statute. Penal Code section 240 provides: “An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of anothеr."
As with all questions of statutory interpretation, the aim of the courts is to ascertain the intent of the Legislature, and to effectuate it. (E.g., People v. Woodhead (1987)
Penal Code section 240 was enacted in 1872 and has never been amended. In enacting section 240, the Legislature followed the recommendation of the code commissioners who proposed it. When the Legislature follows the
The code commissioners’ note to Penal Code section 240 states in relevant part (and with all italics in the original): “Intent to Strike.—An assault has also been said to be an intentional attempt, by violence, to do an injury to the person of anothеr. It must be intentional. If there is no present purpose to do an injury, there is no assault. There must also be an attempt. A purpose not accompanied by an effort to carry into immediate execution falls short of an assault. Thus no words can amount to an assault. But rushing towards another with menacing gestures, and with a purpose to strike, is an assault, though the accused is prevented from striking before he comes near enough to do so.—[Citations.] ... So, where an Embassador [sic] exhibited a painting in the window of his house which gave offense to the crowd without, and defendant, among the crowd, fired a pistol at the painting at the very time when the Embassador [sic] and his servants were in the window to remove it, but did not intend to hurt any of them, and in fact did not [,] Held, that there being no intent to injure the person there could be no conviction for an assault. [Citations.]” (Code comrs. note foll. Ann. Pen. Code, § 240 (1st ed. 1872, Haymond & Burch, comrs.-annotators) pp. 104-105.)
Accordingly, the intent tо do an act likely to cause injury is insufficient for assault. The intent to commit an injury is required. “If there is no present purpose to do an injury, there is no assault.” (Code comrs. note foll. Ann. Pen. Code, § 240, supra, at p. 104.)
If assault requires the intent to injure the victim, it must be a specific intent crime. In People v. Hood (1969) 1 Cal.3d.444, 456-457 [
There is additional support for my conclusion that assault is a specific intent crime. Section 242 of the Penal Code defines a battery as “any willful and unlawful use of force or violence upon the person of another.” Section 240 defines an assault as an unlawful attempt, coupled with a present ability, to commit a physical injury on another. In other words, an assault is an attempt to commit a battery, whether successful or not. Penal Code, section 21a has this to say about an attempt: “An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission.” (Italics added.) Accordingly, since assault is an attempt to commit a battery, and an attempt requires specific intent, the mental state element of assault is the specific intent to commit a battery.
In holding that assault is not a specific intent crime, the court in People v. Rocha, supra,
Because, as I have shown, assault is a specific intent crimе, it follows that in this case the jury instruction given—that “when an act inherently dangerous to others is committed with a conscious disregard of human life and safety ... the intent to commit a battery is presumed”—was defective. Was it prejudicial on this record? No. My reasons follow.
Although the presumption affected the only element of the offense in issue, the error was harmless beyond a reasonable doubt, for the issue was necessarily resolved adversely to defendant under another, properly given instruction. (People v. Sedeno (1974)
Accordingly, I concur in the majority’s affirmance of the judgment only.
The confusion that continues despite the majority’s opinion is illustrated by the differences between this opinion and Justice Mosk’s concurring opinion. Justice Mosk’s concurring opinion reads the majority as holding that the crime of assault requires an intent to injure. Because Justice Mosk agrees with this holding, he concurs with the majority. Although I agree with Justice Mosk that assault requires an intent to injure, the majority opinion does not, in my view, so conclude.
The code commissioners’ note proceeds to explain that the intent to injure may be conditional: “[T]hreatening another with a weapon, as a means of coercing him to yield to a demand, intending to strike if he refuses, but not to strike if he complies, is an assault, although the other party negotiates and no blow is finally given. It makes no difference that the purpose to commit violence is not absolute but only conditional.” (Code comrs. note, supra, at p. 105; see also, People v. McCoy (1944)