*1 Aug. S076262. [No. 2001.] PEOPLE,
THE Plaintiff and Respondent, WILLIAMS, KEITH Defendant and Appellant. LEBARRON *3 Counsel McDowell, Court;
Madeline under and Arthur appointment by Supreme Bowie, L. under the Court of for Defendant and appointment Appeal, Appellant. General,
Daniel E. and Bill Lungren Lockyer, Attorneys George Druliner, General, Williamson and David P. Chief Assistant Attorneys General, Anderson, Scott David Attorney Thorpe Robert R. Assistant W. Rhodes, General, A. for Plaintiff and Deputy Attorneys Respondent. Opinion examined
BROWN, we the mental state Thirty years ago, J. and concluded assault criminal intent not a general intent to cause v. Rocha 3 Cal.3d (People injury. (Rocha).) Seven we reaffirmed years ago, 372] intent crime. general (People Rocha and reiterated that assault was (1994) 7 Colantuono Cal.4th rea (Colantuono).) We further the “mens is explained [for assault] an act that willfully
established defendant committed upon proof i.e., another, nature result battery.” will probably (Id. we once the mental state for assault and Today, clarify at p. again *4 to hold that assault actual facts sufficient establish result the defendant’s act its nature will and in directly probably clarification, in technical error light to another. of this was instructions harmless. given
Facts and married in Their Deborah Nicholson 1989. Gregory King marriage weeks, continued have sexual relations. In lasted about two but to only they involved defendant Lebarron Nicholson became with romantically in but did not Keith Williams. Nicholson had a son November know birth, men After the child’s which of the two had fathered child. for Nicholson’s affections. Their defendant and continued to King compete in in this case. resulted several confrontations culminating rivalry here, at issue King telephoned Prior to confrontation repeatedly Nicholson, him and his two teenage to her to trying persuade accompany drove King When disconnected her to sons on an Nicholson outing. phone, his truck at the home with his sons and pickup Nicholson’s parked compact in the walked Defendant’s truck was to driveway. King up front curb. pickup knocked a note on the door. He then and Nicholson’s front door and put truck, out and talk him. to his Nicholson come hoping returned from Nicholson. King the door and told stay away Defendant opened which he truck and removed a shotgun, Defendant then walked his own back toward rounds. Defendant walked 12-gauge shotgun loaded with two fired, words, into rear shot” “warning directly the house and his that, at the of truck. Defendant testified wheel well King’s passenger-side shot, him and and truck was between King’s King, time he fired parked from the a foot and half away that he saw crouched King approximately that he never saw the truck. Defendant further testified rear fender well of on a standing he fired and noticed them afterwards sons before King’s however, truck. testified King, curb outside the immediate vicinity King’s the truck defendant fired. that both of his sons were into when getting sons, he did hit the rear tire defendant did not hit Although King King’s on the truck’s rear wheel truck. The also left marks King’s shotgun pellets well, its and tank. undercarriage, gas
Defendant with one count of at an motor was charged shooting occupied (Pen. 246)1, vehicle and three counts of assault a firearm (§ (a)(2)), subd. one count each for and his two sons. Each count King 12022.5, (§ (a)(1).) carried an firearm use. subd. The allegation personal (Former trial court the standard on assault. CALJIC gave instruction (1994 rev.) (5th ed. No. 9.00 That instruction supp.).) provides that the crime of assault of these elements: “1. pertinent part requires proof committed A an act that its nature would person willfully unlawfully in the result force on another application committed, 2. At the time the act had the person; was such person [^] (Ibid.) force to the of another.” present ability apply physical firearm, jury convicted defendant of with a but deadlocked assaulting King on the counts. The trial court later dismissed the deadlocked remaining in the counts interests of justice.
On the Court of found the assault instruction erroneous appeal, Appeal because the instruction stated the mental state for the incorrectly required offense. After the instructional error the court reversed finding prejudicial, defendant’s assault conviction.
We review to the mental granted state for assault. clarify
Discussion
I The trial court instructed the that defendant was of assault jury guilty committed if he and act that an its nature would “willfully unlawfully and result in the of force being probably application physical applied 9.00, (See to the of another.” former CALJIC No. The Court supra.) person statutory 1 All further references are to the Penal Code. it described a mental instruction erroneous because
of found this Appeal an find defendant if “under and allowed the guilty state of negligence jury force on another facts ... of view of the application physical objective the instruction mis- that Concluding was foreseeable.” reasonably person either the court held assault requires stated the mental state certainty force or substantial a desire to cause an physical application (1997) 57 v. Smith People Cal.App.4th such an would result. application (Smith).) 604] contend assault only requires general us to reverse. urge They People intent, assault into transformed and the Court Appeal improperly knowledge, and intent by injecting concepts purpose crime specific below, that the Court of Appeal’s description As we agree explained intent and that assault is a general the mental state for assault is erroneous of those that assault actual crime. We further conclude its nature would that the act offending facts sufficient to establish to another. result in force being applied and directly in 1872—defines since its initial enactment Section 240—unchanged to commit a with a ability, as “an unlawful attempt, coupled present decades, we have of another.” Over on violent injury evolving assault into our constantly to fit this 1872 definition of struggled this struggle mental We first recognized framework of criminal states. 618, 462 P.2d (1969) 1 Cal.3d v. Hood intoxi- consider voluntary held that a not (Hood), where we Hood, committed assault. whether a defendant determining cation when terms intent “were yet of general we noted concepts to fit the historic that courts had acknowledged struggled of art” in of general into the modern framework definition of assault Nonetheless, assault as a 457-458.) declined to (Id. classify we intent. at pp. offense, the “distinction between specific because general intoxica- voluntary resolve the issue of whether intent” did not and general (Id. at should be a defense to assault. tion later, the mental state the issue of one we confronted year
Approximately Rocha, held that we 3 Cal.3d at page head-on. In for assault *6 injury to cause any particular “intent does not another, of inflicting in the sense or to [citation], to severely injure Rather, “the general assault required harm .... bodily omitted.]” [Fns. direct, conse- act the natural probable commit an intent to willfully another.” be the injury if successfully completed of which quences (Ibid.) later, “the requi- to decipher once again attempted we years
Twenty-three (Colantuono, . .” . . with a deadly weapon for assault and assault site intent
785 Colantuono, 7 at In we noted that “Rocha accurately Cal.4th p. acts, focused on the nature of the defendant’s rather violent-injury-producing a intention to cause such but injury” may than on separate independent (Colantuono, have left a “measure of understandable analytical uncertainty.” at reaffirmed that assault “is uncertainty, resolve we Hoping (Id. 216, intent intent crime. at fn. crime”—and not general omitted.) “The is whether the defendant intended to commit pivotal question force, an act he or she intended result such not whether likely 218, (Id. omitted.) harm.” fn. also reiterated that We “ ‘[rjeckless conduct alone does not constitute a sufficient basis for assault or ” 219, (Id. even if the assault results in an to another.’ battery injury 466, (1973) v. Lathus 35 469 quoting People Cal.App.3d [110 768, 921]; 281].) (1951) see also v. Carmen 36 Cal.2d 776 P.2d [228 we classified crime in Although assault as intent conclusively general Colantuono, classification, itself, we have that such a recently recognized describe the may fully mental state for criminal offense. requisite every Elements, 2, 2000) 1 Witkin & (3d Cal. Criminal Law Epstein, “universal of the [despite general acceptance principle intent is courts have often to define the mental required,” struggled requisite offenses].) (1999) state for criminal 20 Cal.4th People Hering 440, 839, 445 P.2d 976 we cautioned Cal.Rptr.2d (Hering), against [84 the rote of the intent framework. We have also application general/specific classification of offenses is suggested when necessary ‘only “[s]uch court must determine whether a defense of intoxication or mental voluntary disease, defect, (2000) or disorder is . . available . v. Rathert (People 779, Cal.4th 700].) confusion Cal.Rptr.2d apparent Colantuono that assault be such a case. engendered by suggests mind, With this in we revisit the mental state for assault. As we the statute and always, begin with seek to ascertain the Legislature’s (See, (2001) the date of enactment. v. Garcia 25 Cal.4th e.g., People must determine the 590] [courts enactment].) drafter’s intent at the time of Assault is “an unlawful attempt, awith to commit a violent on the coupled present ability, (§ added.) another.” italics section enacted in Because 240 was amended, and has not been we must construe the intent as of Legislature’s 1872.
To ascertain mental state for we must first determine the three term had “attempt.” apparently definitions: endeavor to crime carried be possible accomplish “[a]n mere but short of execution of the ultimate yond preparation, falling design *7 (1 (1872) (2) 166); of it” Law Dict. intent to Bouvier’s any part p. “[a]n do falls a combined with an act which short of the intended” thing thing indictable, (3) “an intent act be (ibid.)] to commit some which would if done, either from its character or that and probable own of its natural states, (ibid.). With to mental the third definition consequences” respect an intent to the act—and intent to commit not a obtain requires specific on the of that objective some further focuses nature act. The objective—and the first definition is It focuses on nature of the act but ambiguous. may (Ibid.) an a intent to crime.” second require “accomplish definition to describe the traditional formulation of criminal appears attempt 21a, later codified in section which intent. specific In which of the intended to determining “attempt” 240, use the in section we must look to historical “common law definition” 1872, (Code (1st ed. note foll. Ann. Pen. assault. commrs. § “ Burch, commrs.-annotators) 104-105.) ‘The original & con Haymond pp. of criminal assault at an earlier than the doctrine of cept developed day (Colantuono, criminal . . .’” 7 Cal.4th general. p. attempt 2, 2, (2d 118-119.) on ed. 1969) Perkins Criminal Law ch. quoting § an Assault “is not of some offense criminal simply adjunct underlying [like in terms of statutorily but an crime delineated certain independent attempt], (Colantuono, conduct antecedent to unlawful immediately battery.” “ criminal the ‘act an Unlike where attempt constituting attempt ” “ remote,’ be an act done commit a more assault is toward felony may ‘[a]n “ ” ” commission of and must battery’ ‘immediately’ precede (3d 1982) (Perkins).) (Perkins & Criminal Law Boyce, battery. Indeed, criminal recognized our code has this fundamental distinction long as separate criminal and assault these offenses attempt by treating between 663, 664.) crimes. 240 with independent (Compare §§ criminal and assault different mental Consequently, attempt act a criminal “need not be the states. Because the last constituting attempt crime,” substantive or ultimate toward commission of the proximate step “a commit the has intent to crime.” always required 18 Cal.4th Kipp (People contrast, crime
1169].) assault has focused on nature always An assault occurs and not on intent. act perpetrator’s “ would, at least next movement to all appearance, complete whenever ‘[t]he ” “lies (Perkins, added.) italics on a battery.’ supra, essential . . . continuum conduct describes its relation definitional is an or inchoate is consum battery An assault battery; battery: incipient added.) (Colantuono, 7 Cal.4th italics As a mated assault.” result, is not an of assault because the intent to element act, nature, such intent. assaultive subsumes
787 does not the statute therefore used in 1872 assault The term as “attempt” intent, as the a such that to a definition of requires refer Rather, the consistent Legislature, 21a.2 later codified in section definition assault, to adopt of intended understanding the historical presumably with act which “an intent to commit some the third 1872 definition of attempt: indictable, done, of its character or that be either from its own would if Dict., at (1 supra, . . . .” Bouvier’s Law natural and probable consequences assault “the mental state for 166.) we in Colantuono that p. explained act that the committed an willfully is established defendant ... upon proof i.e., another, a injury nature will and result in its added; see also (Colantuono, 7 Cal.4th at italics battery.” supra, p. Rocha, intent for 3 at which is supra, required Cal.3d [“the direct, commit an act natural assault... is general wilfully which, be the successfully completed, consequences probable if of (italics added)].) to another” of the mental state for assault reflects Although Colantuono’s description in its exclusive intended the Legislature “attempt” reliance on the intent has resulted in some confusion. general concept (See at much of this 445.) 20 Cal.4th We attribute Hering, supra, the fact . . the likelihood confusion to that . is gravamen assault] “[t]he [of bodily that the force be will result applied attempted great applied v. McCaffrey injury.” (People Cal.App.2d 557], omitted.) some criminalizes conduct based italics Because assault mental might actually on what have not what happened—:and happened—the direct, i.e., state for assault natural language probability, incorporates however, This language, arguably implies an probable consequences. Smith, (See mental consistent with a standard. objective negligence state 1480.) at supra, Cal.App.4th that we confusing, Colantuono’s have been
Recognizing language may defini Based on the 1872 now mental state clarify he commit is assault if intends to tion of defendant attempt, guilty done, an act “which would be indictable if either from own battery], [as (1 that of Bouvier’s character or its natural probable consequences.” Dict., such a defendant cannot have supra, Law at p. Logically, conclusion, commissioners reaching acknowledge parts of the code 2 In we (See Code suggest injure. intent to comment to section however, not, 104-105.) find We do pp. note foil. Ann. Pen. commrs. light conception of assault and compelling of the historic parts these comment attempt. crime from criminal Legislature’s statutorily decision to make assault distinct Indeed, ante, 785-786.) Code omitted assault from the Penal could have ” “ battery,’ if it wished to prosecutors charge ‘attempted defendants and allowed (Colantuono, 7 Cal.4th make assault intent crime. his act intent unless he knows those facts sufficient to establish that actually *9 its nature and result in force being will probably applied another, i.e., (Cf. subd. 5 means “a battery. knowledge § [actual the act or facts exist which omission within knowledge bring words, code”].) of this In other a defendant of assault must provisions guilty be of the facts that lead a reasonable to realize that a aware would and conduct. He result from his battery directly, naturally probably not be convicted based on facts he did not know but should have He, however, be that a known. need not aware of risk subjectively occur.3 battery might do not disturb our we adopting requirement, previous Colantuono, (see Assault is still a intent crime
holdings.
general
215-216; Rocha,
899),
We also reaffirm that assault does not intent to specific Rocha, above, (See at As our victim. 3 Cal.3d supra, explained of a intent is consistent the statutory rejection requirement event, and the historic of criminal assault. In even language conception if erred 30 in Rocha and this error seven years ago years we compounded Colantuono, conduct militates ago Legislature’s strongly subsequent belated correction of this “error” against any today.
First, the behind section 21a—which codified the ele- history legislative ments of criminal for the first time—strongly suggests attempt of Rocha. Section 21a attempt approved provides “[a]n elements: a intent to commit commit a crime consists two likely in a example, honestly a defendant believes that his act was not to result 3 For who defendant, viewing battery guilty person, is still of assault if a reasonable the facts known to naturally battery. directly, would find that the act would result in stating People relied on 4 In that reckless conduct cannot constitute Colantuono Lathus, supra, in turn relied on our 1951 decision in Cal.App.3d page v. which 775-776, Carmen, pages which in turn relied on even older case 36 Cal.2d Thus, synonym for criminal Colantuono meant “recklessness” in its historical sense as law. negligence, conception subjective appreciation than as a of the risk of rather its more modern Rea, Dressler, (2d 1995) Understanding to another. Criminal Law Mens harm 10.04[D][3], negli past, synonym was a for ‘criminal pp. 115-116 ‘recklessness’ [“In ”].) gence’ By its commission.” crime, act done toward and a direct but ineffectual decision in Rocha—the after our years 21a in 1986—15 section enacting used in definition now “the codify intended to Legislature merely No. on Sen. Bill on Public (Assem. Safety, Rep. Com. instructions.” jury 28, 1986, 5.) Sess.) Legis- as amended (1985-1986 May Reg. or overturn Rocha other instructions did not intend to affect lature Indeed, the Legis- assault. of a requirement its rejection with case law 21a to be “consistent intended section lature apparently (Assem. Com. included Rocha. other relevant authority”—which presumably 21a, section enacting implic- the Legislature, by Rep., *10 inde- statutorily were two that assault and itly recognized mental states. offenses with different requisite pendent additional evi- Second, 22 in the amendment of section 1982 provides 1982, In the Legislature the of Rocha. dence that Legislature approved could only clear that intoxication voluntary amended section 22 to make 1982, 893, (Stats. ch. criminal intent. general intent and not negate specific 437, 3317; §2, (1994) 7 Cal.4th 448 see Whitfield amendment, the (Whitfield).) making Cal.Rptr.2d 272] law, Hood, held which including intended to existing Legislature preserve (See Whitfield, is not a defense to assault. that intoxication voluntary Thus, could not under the of section assault language require plain Otherwise, intoxica- voluntary intent to cause evidence injury. specific state for assault in tion be admissible to mental negate requisite would of Hood. contravention 21a bolsters this con- enactment of section Legislature’s subsequent 21a states that criminal attempt requires
clusion. Section unequivocally intoxication section evidence of voluntary" intent. under specific had the be admissible to whether a defendant regard requisite state for section 21a now defines mental intent for a criminal If attempt. under be a defense to assault then intoxication would voluntary a result did not intend such section 22. Because the Legislature undoubtedly 22 of section (see 448), Cal.4th at amendment Whitfield, 1982 of a intent requirement. affirms Rocha and its rejection implicitly section 240 and has had 30 to amend years Finally, Legislature Rocha, is not inaction legislative but has not done so. While overturn Rocha, conclusive, our subse of our longevity holding necessarily Colantuono, the exist of Rocha seven years ago reaffirmation quent Rocha indicate that enactments ence of other legislative implicitly approving that assault does require in our conclusion has Legislature acquiesced Communications, Cellular Inc. v. Los Angeles Cel-Tech intent. Co. 20 Cal.4th Telephone after decades of [declining judicial legisla overrule interpretation
tive inaction and the of our decisions restating unanimity interpreta circumstances, tion].) Under these we “believe it is to the up (Ibid.) it if it is to be change changed.” we hold assault does not
Accordingly, to cause or a of the risk that an subjective injury might awareness Rather, act and actual occur. intentional only requires that the act of those facts sufficient to establish nature will result in the force another. against directly application
II turn to the instruction at issue in this and find this We now case jury instruction Because “the test of natural and potentially ambiguous. probable (Smith, 1480), is an one” objective Cal.App.4th consequences a defendant and unlawfully to find that merely requiring willfully committed an act that its nature result in would probably *11 force to the of another a convic being applied person permit actually tion on facts the defendant should have known but did not premised a know. under the instruction could convict given, jury conceivably defendant for assault even if he did not know facts sufficient actually result in a establish that his act its nature would probably battery.
Nonetheless, instructional error is technical and is largely unlikely cases, oiitcome of most assault because a defendant’s knowledge affect the Indeed, of the factual circumstances is this case rarely relevant dispute. Here,.defendant corroborates observation. admitted he loaded his own this He further testified that he knew that with two rounds. shotgun shotgun victim, on the side of the truck between “was crouched far King, alleged a warning fender and the cab.” defendant fired Finally, admittedly rear truck he knew that was in the near though King vicinity. shot at even King’s admissions, those facts estab of these defendant knew undoubtedly light result that act its nature would directly, naturally his lishing counts, in deadlock on the other assault which in a battery. jury’s truck actual that the victims were near the when defendant denied Accord further confirms that the was not misled. he fired his shotgun, a reason minor in the instruction was harmless beyond ingly, any ambiguity S.Ct. (Neder v. doubt. United States 527 U.S. able 1833-1834, 35].) 144 L.Ed.2d
Disposition for further and remand the Court of Appeal judgment We reverse the consistent with this opinion. proceedings J., Chin, J., J., Baxter, concurred. C.
George, KENNARD, I dissent. J. for the crime of state tried to define the mental required
This court last
(1994)
Because the Colantuono never majority explained not, is, court is again but what it is mental state for assault quired assault. Reex- the mental state faced with the task of defining required *12 issue, error in Colantuono by the now amining majority compounds defendant, assault, need be aware of facts that a to be guilty holding directly, that a would battery lead a reasonable to realize would person conduct, even though result from the defendant’s naturally, is to result. battery likely but believes that no mistakenly defendant honestly ante, 3.) I again, disagree. 788 & fn. Once (Maj. opn.,
I definition of analysis by reciting statutory The its majority begins to commit a ability, unlawful coupled present assault—“an attempt, Code, (Pen. 240)—and declaring of another” violent on the injury at the date of to ascertain the Legislature’s that we should “seek ante, statutory the current Because (Maj. enactment.” opn., Penal Code’s enactment is since the unchanged definition of assault asserts that “we must construe the intent as of majority Legislature’s (Ibid.) 1872.” Indeed,
I
with this
it
the one
agree
is
I used in
dissent in
approach.
my
Colantuono,
To ascertain the
intent in
Legislature’s
1872 when it enacted the statutory
definition of assault as
Penal
original
relies on
part
majority
the third
three
in the 1872 edition of Bouvier’s
“attempt”
definitions
“as
‘an
Law
intent to commit some act which would be indict-
Dictionary
able, done,
if
either from its own character or that of its natural and probable
ante,
....’”
(Maj.
The
asserts that
consequences
opn.,
majority
this definition of
its conclusion that in
the Legisla-
“attempt” supports
assault,
ture intended
commit
to
as the mental state for
an intent to
require,
would,
an act that
if
result in the
of another as
successfully completed,
direct,
(Ibid.)
natural and probable consequence.
The
dismisses the
majority
first and second definitions of “at-
quickly
in the 1872 edition of
because
tempt” appearing
Dictionary,
Bouvier’s Law
Indeed,
these definitions
do
to
as
inconveniently
nothing
support
position.
assault,
to the crime of
both of
lead
these definitions of
applied
“attempt”
is,
the conclusion that assault
an intent to inflict a
battery—that
intent to
has chosen
third
injure.1
Bouvier’s
definition of
majority
to construe Penal Code section 240 because that definition
attempt
appears
Colantuono,
on
this court’s mistaken
quick reading
holding
support
it, however,
Tellingly, majority appellate from the third writer Bouvier’s definition of period applying attempt the crime of other evidence that member of the 1872 any definition of or relied as Legislature was aware upon explain- that term’s in Penal Code section 240. The also must ing majority *13 that the it to the term in Penal Code acknowledge gives “attempt” section 240 cannot be to the same word in other sections of the given ante, Code, and 1872 Penal such as sections 663 664. original (Maj. opn., bodily battery, “injure” 1 In the context of assault and the term does not harm and any touching” wrongful person includes “least that is or offensive to the who receives it. (Colantuono, 214, 7 Cal.4th at fn.
793 sections, crime to the of 786-787.) In those which apply intent or to commit the purpose word attempt, “attempt” requires 21a; (1998) 18 Cal.4th People Kipp Pen. v. target the crime. 716, 349, 1169].) acknowl- P.2d The thus majority 376 956 Cal.Rptr.2d [75 “ ‘ “ construction: to a normal rule of statutory failure edges apply ‘[Iden- the the same act are intended to have tical words used in different of parts ” ’ ” Industries, Inc. Revenue Ore. v. ACF (Department same meaning.’ of accord, 843, 849, 332, 165]; 342 127 L.Ed.2d (1994) 510 U.S. S.Ct. [114 973, 260, (1999) 987 Cal.Rptr.2d v. 21 Cal.4th 979 Wilcox Birtwhistle [90 727]; Bd. Rialto Governing P.2d Teachers Assn. v. Unified California 671, Dist. (1997) School 14 Cal.4th rule, believe, 1175].) The asks us to to this majority contrary a single it Penal Code by legislative when the Legislature, adopted original act, one in sections 663 and intended that would mean “attempt” thing different 240. and in section something quite to as the code commissioners’ comment dismisses mistaken majority ante, Code fn. In so it doing, Penal section 240. (Maj. opn., a statute flouts another rule of construction: “When statutory proposed has the California Code Commission for inclusion in the Penal Code of 1872 the been enacted the substantial Legislature change, without report to the and in commission is entitled statute great weight construing the Cal.3d determining (People Wiley the intent of Legislature.” 881].) the the Legislature, When submitted their draft of the Penal Code to they code an extensive comment describing commissioners provided crime assault. Because the without recommenda change adopted commissioners, atten tion of the their comment deserves this court’s code and tion consideration. Their note to Penal Code section 240 states also been to be an relevant Strike.—An has said part: to “Intent violence, do an of another. It intentional attempt, by must be If there is no to do an there is no injury, intentional. present purpose an assault. There must also be an A not attempt. accompanied by purpose no effort to into immediate execution falls short of assault. Thus carry can menacing words amount to an assault. But another with rushing towards strike, is is an accused gestures, purpose though near to do striking from before he comes enough prevented so.—[Citations.] So, of his . exhibited a in the window painting . . where an Embassador defendant, without, among offense to the crowd which gave house crowd, very fired a at the at the time when Embassador painting pistol it, to hurt his in the to remove but did intend servants were window Held, them, and in fact did not. that there no being *14 there (Code could be no conviction for an assault.
person [Citations.]” 240, 104-105, commrs. note foll. Ann. Pen. italics in supra, pp. Thus, the code original.) commissioners have declared their unambiguously that the crime of assault as codified in Penal understanding Code section 240 the mental state of a requires purpose injure.
The mentions the code majority commissioners’ comment as evi- dence that the “the Legislature sought historical ‘common law codify ante, definition’ of 786.) assault.” at (Maj. opn., p. majority ultimately rests its about the intent argument of the 1872 on its assertion that the common law definition of assault did not an intent to injure. But the is majority mistaken. As the commissioners’ comment accurately
indicates, at common law the crime of assault an “was to commit a attempt battery else” and therefore “the need for an nothing inflict such (Perkins harm has been (3d 1982) & emphasized.” Criminal Law ed. Boyce, 159, 161.) The authors of another law treatise make the same “An to commit crime point: intent to commit requires crime; and so assault of the sort an intent to attempted-battery requires i.e., commit a an intent to cause to the battery, victim.” physical injury Scott, 692, (LaFave (2d 1986) & Criminal omitted.) Law fns. p. Colantuono, 206, to the Turning majority 7 Cal.4th opinion here majority observes that it “has resulted in some confusion.” correctly ante, confusion, at (Maj. to end the opn., Seeking states majority that the mental state for assault is required “those facts sufficient to establish that act nature will probably [the defendant’s] another, i.e:; result in force being applied battery.” (Id. that the Acknowledging Colantuono stated that majority (Colantuono, reckless conduct cannot constitute an merely 219; (1971) see also v. Rocha 3 Cal.3d [92 (Rocha)), 479 P.2d here assures us that under the standard majority it “mere recklessness or criminal is still not adopts negligence enough” (maj. ante, 788), “a this is because cannot find a defendant opn., of assault based on facts he should but did not guilty have known know” (ibid..).I do not formulation a mental state agree majority’s more than criminal or recklessness. negligence culpable determined
Criminal is standard based on negligence objective whether a reasonable in the would have been position defendant’s (Williams (1993) aware of the risk of harm to another. v. Garcetti 5 Cal.4th 507].) To be “in the defendant’s means, other to be aware of the facts that the position” among things, (Albrecht defendant Broughton knew. Cal.App.3d
795 Thus, (8th 1994).) criminal 659]; negligence 3.11 see BAJI No. Cal.Rptr. to lead a reasonable of facts that would actual knowledge of to a risk injury involved high the conduct in question conclude that Law, Scott, 235-237.) Reck- at supra, & Criminal another. LaFave not lessness, than criminal negligence, requires a mental state more culpable but dangerous, conduct making excessively of the facts the only knowledge (Id. 239; to at the harm another. a of risk of also subjective appreciation Code, 450, (f) is aware ‘Recklessly’ subd. means person see also Pen. [“ .”]; risk . . and . unjustifiable and a substantial of consciously disregards 653]; (1982) Cal.Rptr. v. Budish 131 1047 Cal.App.3d Law, 851.) & Criminal Perkins Boyce, in more than criminal negligence the Colantuono majority, requiring recklessness, of facts must intended to not only or have of the risk the conduct and making subjective appreciation dangerous another, risk that to but of a than higher degree also an awareness here, The or recklessness. ordinary negligence majority required not of the risk of harm is required, in that a holding subjective appreciation Colantuono, of the statutory is not much less to the faithful plain that that definition of assault or intent of the 1872 enacted Legislature the definition, commissioners’ Code as reflected in the code comment Penal section 240. defense,
As its line of the asserts that the has Legislature last majority Rocha, in twice of this court’s muddled decision signaled approval Cal.3d holding that assault with a was deadly weapon “the for assault is intent stating crime that intent required (Id. to commit a declares that attempt battery.” majority Code Rocha when it amended Penal Legislature in 1982 implicitly approved on section 22 to is admissible clarify voluntary intoxication intent,” or not the formed “whether defendant actually required 21a, in it Penal Code section again defining 1986 when adopted ante, elements of criminal (Maj. attempt. opn., “a But the section 21a—as definition Penal Code requiring entirely intent to the crime”—is inconsistent with commit 240 defining construction of the same word in Penal Code section majority’s aof assault. How the of this inconsistent definition Legislature’s adoption or of term Penal Code Rocha section constitutes key approval do I see does here me Nor today entirely. anything what majority escapes decision here in Penal Code section 22 that supports majority’s of assault in 1982 was of the definition suggests thinking it when amended section. and unlike
Finally, I attach majority, no significance the Legisla- ture’s failure to amend Penal Code section 240 after this court’s decisions in Rocha, Colantuono, supra, 3 Cal.3d supra, Cal.4th 206. Legisla- tive inaction is normally (Harris indicator of poor legislative intent. Capital Growth Investors XIV 52 Cal.3d *16 614, 873]; 805 892, 902, P.2d (1985) v. 39 Cal.3d fn. 5 Gutierrez [218 Mofid 313, 705 P.2d Cal.Rptr. Legislature’s mere failure to to 886] [“the a respond judicial construction of its statute is no evidence of its in the acquiescence This is ruling”].) true in this instance. Since it especially first defined the 1850, (Stats. 99, 49, crime in 1850 ch. 234), that using language § passed Code, into the unchanged 1872 Penal the Legislature has never amended its definition of It assault. did not do so after this court defined assault to a 7, 8; to (1881) v. Bird purpose injure (People 60 Cal. v. People (1888) 293, Dodel 484]; Cal. P. (1944) v. McCoy [19 177, 315]; Cal.2d 749, 189-190 (1967) People v. Wilson 66 Cal.2d [153 156, 820]; 427 P.2d Cal.Rptr. People Coffey 67 Cal.2d 15]), and it has not done so since this court has held assault does not a to require purpose injure. this Throughout construction, course of contradictory judicial has allowed the Legislature definition statutory of assault to remain an to commit violent attempt law, injury. meant what it “attempt” meant at common namely when, one “commits an crime, with intent to commit a he particular an act which performs tends toward but falls short of the consummation of (4 such crime.” Wharton’s (15th 1996) Criminal Law 580.)2 § How far this court has from the strayed definition of Legislature’s as “an unlawful attempt, coupled with to present ability, commit violent on the (Pen. of another”! 240.) Under the definition of assault that the majority as the approves today, General forced Attorney was case, at oral acknowledge in this argument trial court instructing jury in the exact words of this statute would not define the accurately crime of assault.
II Here, the instruction that the trial court to the gave jury explain for the requirements crime of assault failed to state that assault requires either an intent to or a injure subjective awareness of the risk of injury. suggest 2 Ido not mean to should not reexamine its definition of the crime of developments jurisdictions, assault. Given in other and this court’s own difficulties definition, existing with the such an examination be overdue. As the authors of a treatise observed, on criminal country law in this have the common law definition of as codified in Penal Code section very rarely was once common but now “is found in the Scott, (LaFave Law, modem codes.” & Criminal at view, therefore, ante, the instruction was In my maj. opn., erroneous. here, error Defendant
On was prejudicial. the evidence presented he was rear aiming passenger- testified that when he fired his shotgun truck, and it was King, King’s side wheel well Gregory on hit who King, standing that none of was shotgun pellets undisputed discharg- side of his The defense plausibly argued truck. opposite aware- King any defendant lacked ing any shotgun purpose ness being injured. that King danger was
An that omits an element of a charged instruction or misdescribes Constitution, trial our federal right guaranteed offense violates error test of and the effect of this violation is measured the harmless against *17 824, 828, 17 386 U.S. S.Ct. Chapman California test, 705, 24 Under that court find L.Ed.2d A.L.R.3d appellate 1065]. record, if, review of conducting thorough error harmless after doubt verdict would the court determines a reasonable that the beyond jury (1999) 527 (Neder have been the same absent the error. v. United States U.S. 1833-1384, 35].) that test S.Ct. 144 L.Ed.2d Applying here, record, I a reasonable after a of the cannot thorough say beyond review mental doubt that if the trial court had instructed on the state correctly assault, the have defendant had that for an found that required the Court that the instruc- mental state. I Accordingly, agree Appeal tional error reversal of defendant’s assault conviction. J., concurred.
Werdegar, was 2001. rehearing denied petition September Appellant’s Kennard, J., should be opinion granted. was petition