Lead Opinion
Opinion
Thirty years ago, we examined the mental state for assault and concluded assault requires only a general criminal intent and not a specific intent to cause injury. (People v. Rocha (1971)
Facts
Gregory King and Deborah Nicholson married in 1989. Their marriage lasted only about two weeks, but they continued to have sexual relations. In 1992, Nicholson became romantically involved with defendant Lebarron Keith Williams. Nicholson had a son in November 1994, but did not know which of the two men had fathered the child. After the child’s birth, defendant and King continued to compete for Nicholson’s affections. Their rivalry resulted in several confrontations culminating in this case.
Prior to the confrontation at issue here, King repeatedly telephoned Nicholson, trying to persuade her to accompany him and his two teenage sons on an outing. When Nicholson disconnected her phone, King drove to Nicholson’s home with his sons and parked his compact pickup truck at the front curb. Defendant’s pickup truck was in the driveway. King walked up to Nicholson’s front door and put a note on the door. He then knocked and returned to his truck, hoping Nicholson would come out and talk to him.
Defendant opened the door and told King to stay away from Nicholson. Defendant then walked to his own truck and removed a shotgun, which he loaded with two 12-gauge shotgun rounds. Defendant
Although defendant did not hit King or King’s sons, he did hit the rear tire of King’s truck. The shotgun pellets also left marks on the truck’s rear wheel well, its undercarriage, and its gas tank.
Defendant was charged with one count of shooting at an occupied motor vehicle (Pen. Code, § 246)
On appeal, the Court of Appeal found the assault instruction erroneous because the instruction incorrectly stated the mental state required for the offense. After finding the instructional error prejudicial, the court reversed defendant’s assault conviction.
We granted review to clarify the mental state for assault.
Discussion
I
The trial court instructed the jury that defendant was guilty of assault only if he “willfully and unlawfully committed an act that by its nature would probably and directly result in the application of physical force being applied to the person of another.” (See former CALJIC No. 9.00, supra.) The Court of Appeal found this instruction erroneous because it described a mental state of negligence and allowed the jury to find defendant guilty if “under an objective view of the facts ... an application of physical force on another person was reasonably foreseeable.” Concluding that the instruction misstated the mental state for assault, the court held that assault requires either a desire to cause an application of physical force or substantial certainty that such an application would result. (See People v. Smith (1997)
The People urge us to reverse. They contend assault only requires general criminal intent, and the Court of Appeal improperly transformed assault into a specific intent crime by injecting the concepts of purpose and knowledge, As explained below, we agree that the Court of Appeal’s
Section 240—unchanged since its initial enactment in 1872—defines assault as “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” Over the decades, we have struggled to fit this 1872 definition of assault into our constantly evolving framework of criminal mental states. We first recognized this struggle in People v. Hood (1969)
Approximately one year later, we confronted the issue of the mental state for assault head-on. In Rocha, supra,
Twenty-three years later, we once again attempted to decipher “the requisite intent for assault and assault with a deadly weapon . . . .” (Colantuono, supra,
Although we conclusively classified assault as a general intent crime in Colantuono, we have recently recognized that such a classification, by itself, may not fully describe the requisite mental state for every criminal offense. (See 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Elements, § 2, pp. 199-201 [despite “universal acceptance of the principle that general criminal intent is required,” courts
With this in mind, we revisit the mental state for assault. As always, we begin with the statute and seek to ascertain the Legislature’s intent at the date of enactment. (See, e.g., People v. Garcia (2001)
To ascertain the mental state for assault, we must first determine the meaning of the term “attempt.” In 1872, attempt apparently had three possible definitions: (1) “[a]n endeavor to accomplish a crime carried beyond mere preparation, but falling short of execution of the ultimate design in any part of it” (1 Bouvier’s Law Dict. (1872) p. 166); (2) “[a]n intent to do a thing combined with an act which falls short of the thing intended” (ibid.)] and (3) “an intent to commit some act which would be indictable, if done, either from its own character or that of its natural and probable consequences” (ibid.). With respect to mental states, the third definition requires only an intent to commit the act—and not a specific intent to obtain some further objective—and focuses on the objective nature of that act. The first definition is ambiguous. It focuses on the nature of the act but may or may not require an intent to “accomplish a crime.” (Ibid.) The second definition appears to describe the traditional formulation of criminal attempt later codified in section 21a, which requires a specific intent.
In determining which meaning of “attempt” the Legislature intended to use in section 240, we must look to the historical “common law definition” of assault. (Code commrs. note foll. Ann. Pen. Code, § 240 (1st ed. 1872, Haymond & Burch, commrs.-annotators) pp. 104-105.) “ ‘The original concept of criminal assault developed at an earlier day than the doctrine of criminal attempt in general. . . .’” (Colantuono, supra,
The term “attempt” as used in the 1872 assault statute therefore does not refer to a definition of attempt that requires a specific intent, such as the definition later codified in section 21a.
Although Colantuono’s description of the mental state for assault reflects the meaning of “attempt” intended by the Legislature in 1872, its exclusive reliance on the concept of general intent has resulted in some confusion. (See Hering, supra,
Recognizing that Colantuono’s language may have been confusing, we now clarify the mental state for assault, Based on the 1872 definition of attempt, a defendant is only guilty of assault if he intends to commit an act “which would be indictable [as a battery], if done, either from its own character or that of its natural and probable consequences.” (1 Bouvier’s Law Dict., supra, at p. 166.) Logically, a defendant cannot have such an intent unless he actually knows those facts sufficient to establish that his act by its nature will probably and directly result in physical force being applied to another, i.e., a battery. (Cf. § 7, subd. 5 [actual knowledge means “a knowledge that the facts exist which bring the act or omission within the provisions of this code”].) In other words, a defendant guilty of assault must be aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct. He may not be convicted based on facts he did not know but should have known. He, however, need not be subjectively aware of the risk that a battery might occur.
In adopting this knowledge requirement, we do not disturb our previous holdings. Assault is still a general intent crime (see Colantuono, supra, 7 Cal.4th at pp. 215-216; Rocha, supra,
We also reaffirm that assault does not require a specific intent to injure the victim. (See Rocha, supra,
First, the legislative history behind section 21a—which codified the elements of
Second, the amendment of section 22 in 1982 provides additional evidence that the Legislature approved of Rocha. In 1982, the Legislature amended section 22 to make clear that voluntary intoxication could only negate specific intent and not general criminal intent. (Stats. 1982, ch. 893, §2, p. 3317; see People v. Whitfield (1994)
The Legislature’s subsequent enactment of section 21a bolsters this conclusion. Section 21a unequivocally states that criminal attempt requires a specific intent. Thus, under section 22, evidence of voluntary" intoxication would be admissible with regard to whether a defendant had the requisite intent for a criminal attempt. If section 21a now defines the mental state for assault, then voluntary intoxication would be a defense to assault under section 22. Because the Legislature undoubtedly did not intend such a result (see Whitfield, supra,
Finally, the Legislature has had 30 years to amend section 240 and overturn Rocha, but has not done so. While legislative inaction is not necessarily conclusive, the longevity of our holding in Rocha, our subsequent reaffirmation of Rocha seven years ago in Colantuono, and the existence of other legislative enactments implicitly approving Rocha indicate that the Legislature has acquiesced in our conclusion that assault does not require a specific intent. (See Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999)
Accordingly, we hold that assault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather,
II
We now turn to the jury instruction at issue in this case and find this instruction potentially ambiguous. Because “the test of natural and probable consequences is an objective one” (Smith, supra,
Nonetheless, any instructional error is largely technical and is unlikely to affect the oiitcome of most assault cases, because a defendant’s knowledge of the relevant factual circumstances is rarely in dispute. Indeed, this case corroborates this observation. Here,.defendant admitted he loaded his own shotgun with two shotgun rounds. He further testified that he knew that King, the alleged victim, “was crouched on the far side of the truck between the rear fender and the cab.” Finally, defendant admittedly fired a warning shot at King’s truck even though he knew that King was in the near vicinity. In light of these admissions, defendant undoubtedly knew those facts establishing that his act by its nature would directly, naturally and probably result in a battery. The jury’s deadlock on the other assault counts, in which defendant denied actual knowledge that the victims were near the truck when he fired his shotgun, further confirms that the jury was not misled. Accordingly, any minor ambiguity in the instruction was harmless beyond a reasonable doubt. (Neder v. United States (1999)
Disposition
We reverse the judgment of the Court of Appeal and remand for further proceedings consistent with this opinion.
George, C. J., Baxter, J., and Chin, J., concurred.
Notes
All further statutory references are to the Penal Code.
In reaching this conclusion, we acknowledge that parts of the code commissioners comment to section 240 suggest that assault requires a specific intent to injure. (See Code commrs. note foil. Ann. Pen. Code, § 240, supra, at pp. 104-105.) We do not, however, find these parts of the comment compelling in light of the historic conception of assault and the Legislature’s decision to make assault a statutorily distinct crime from criminal attempt. (See ante, at pp. 785-786.) Indeed, the Legislature could have omitted assault from the Penal Code and allowed prosecutors to charge defendants with “ ‘attempted battery,’ ” if it wished to make assault a specific intent crime. (Colantuono, supra,
For example, a defendant who honestly believes that his act was not likely to result in a battery is still guilty of assault if a reasonable person, viewing the facts known to defendant, would find that the act would directly, naturally and probably result in a battery.
In stating that reckless conduct cannot constitute an assault, Colantuono relied on People v. Lathus, supra,
Dissenting Opinion
I dissent.
This court last tried to define the mental state required for the crime of assault in People v. Colantuono (1994)
Because the Colantuono majority never clearly explained what the required mental state for assault is, but only what it is not, this court is again faced with the task of defining the mental state required for assault. Reexamining the issue, the majority now compounds the error in Colantuono by holding that a defendant, to be guilty of assault, need only be aware of facts that would lead a reasonable person to realize that a battery would directly, naturally, and probably result from the defendant’s conduct, even though the defendant honestly but mistakenly believes that no battery is likely to result. (Maj. opn., ante, at p. 788 & fn. 3.) Once again, I disagree.
I
The majority begins its analysis by reciting the statutory definition of assault—“an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another” (Pen. Code, § 240)—and declaring that we should “seek to ascertain the Legislature’s intent at the date of enactment.” (Maj. opn., ante, at p. 785.) Because the current statutory definition of assault is unchanged since the Penal Code’s enactment in 1872, the majority asserts that “we must construe the Legislature’s intent as of 1872.” (Ibid.)
I agree with this approach. Indeed, it is the one I used in my dissent in Colantuono, supra,
To ascertain the Legislature’s intent in 1872 when it enacted the statutory definition of assault as part of the original Penal Code, the majority relies on the third of three definitions of “attempt” in the 1872 edition of Bouvier’s Law Dictionary as “ ‘an intent to commit some act which would be indictable, if done, either from its own character or that of its natural and probable consequences ....’” (Maj. opn., ante, at p. 786.) The majority asserts that this definition of “attempt” supports its conclusion that in 1872 the Legislature intended to require, as the mental state for assault, an intent to commit an act that would, if successfully completed, result in the injury of another as a direct, natural and probable consequence. (Ibid.)
The majority quickly dismisses the first and second definitions of “attempt” appearing in the 1872 edition of Bouvier’s Law Dictionary, because these definitions inconveniently do nothing to support its position. Indeed, as applied to the crime of assault, both of these definitions of “attempt” lead to the conclusion that assault requires an intent to inflict a battery—that is, an intent to injure.
Tellingly, the majority fails to cite one appellate decision or one text writer from the 1872 period applying Bouvier’s third definition of attempt to the crime of assault, or any other evidence that any member of the 1872 Legislature was aware of or relied upon this definition of attempt as explaining that term’s meaning in Penal Code section 240. The majority also must acknowledge that the meaning it gives to the term “attempt” in Penal Code section 240 cannot be given to the same word in other sections of the original 1872 Penal Code, such as sections 663 and 664. (Maj. opn., ante, at pp. 786-787.) In those sections, which apply to the crime of criminal attempt, the word “attempt” requires a specific intent or purpose to commit the target crime. (See Pen. Code, § 21a; People v. Kipp (1998)
The majority dismisses as mistaken the code commissioners’ comment to Penal Code section 240. (Maj. opn., ante, at p. 787, fn. 2.) In so doing, it flouts another rule of statutory construction: “When a statute proposed by the California Code Commission for inclusion in the Penal Code of 1872 has been enacted by the Legislature without substantial change, the report of the commission is entitled to great weight in construing the statute and in determining the intent of the Legislature.” (People v. Wiley (1976)
When they submitted their draft of the Penal Code to the Legislature, the code commissioners provided an extensive comment describing the crime of assault. Because the Legislature adopted without change the recommendation of the code commissioners, their comment deserves this court’s attention and consideration. Their note to Penal Code section 240 states in relevant part: “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 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 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 and his servants were in the window to remove it,
The majority mentions the code commissioners’ comment only as evidence that the Legislature sought to codify “the historical ‘common law definition’ of assault.” (Maj. opn., ante, at p. 786.) The majority ultimately rests its argument about the intent of the 1872 Legislature on its assertion that the common law definition of assault did not require an intent to injure. But the majority is mistaken. As the commissioners’ comment accurately indicates, at common law the crime of assault “was an attempt to commit a battery and nothing else” and therefore “the need for an intent to inflict such harm has been emphasized.” (Perkins & Boyce, Criminal Law (3d ed. 1982) pp. 159, 161.) The authors of another criminal law treatise make the same point: “An attempt to commit any crime requires a specific intent to commit that crime; and so assault of the attempted-battery sort requires an intent to commit a battery, i.e., an intent to cause physical injury to the victim.” (LaFave & Scott, Criminal Law (2d ed. 1986) p. 692, fns. omitted.)
Turning to the majority opinion in Colantuono, supra,
Criminal negligence is determined by an objective standard based on whether a reasonable person in the defendant’s position would have been aware of the risk of harm to another. (Williams v. Garcetti (1993)
Thus, the Colantuono majority, in requiring more than criminal negligence or recklessness, must have intended to require not only knowledge of facts making the conduct dangerous and a subjective appreciation of the risk of injury to another, but also an awareness of a higher degree of risk than that required for ordinary criminal negligence or recklessness. The majority here, in holding that a subjective appreciation of the risk of harm is not required, is not faithful to Colantuono, much less to the plain meaning of the statutory definition of assault or the intent of the 1872 Legislature that enacted that definition, as reflected in the code commissioners’ comment to Penal Code section 240.
As its last line of defense, the majority asserts that the Legislature has twice signaled its approval of this court’s muddled decision in Rocha, supra,
But the definition of attempt in Penal Code section 21a—as requiring “a specific intent to commit the crime”—is entirely inconsistent with the majority’s construction of the same word in Penal Code section 240 defining assault. How the Legislature’s adoption of this inconsistent definition of a key term in Penal Code section 240 constitutes an approval of Rocha or of what the majority does here today escapes me entirely. Nor do I see anything in Penal Code section 22 that supports the majority’s decision here or suggests that the Legislature was thinking of the definition of assault in 1982 when it amended that section.
Finally, and unlike the majority, I attach no significance to the Legislature’s failure to amend Penal Code section 240 after this court’s decisions in Rocha, supra,
How far this court has strayed from the Legislature’s definition of assault as “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another”! (Pen. Code, § 240.) Under the definition of assault that the majority approves today, as the Attorney General was forced to acknowledge at oral argument in this case, a trial court instructing a jury in the exact words of this statute would not accurately define the crime of assault.
II
Here, the instruction that the trial court gave to the jury to explain the requirements for the crime of assault failed to state that assault requires either an intent to injure or a subjective awareness of the risk of injury. (See maj. opn., ante, at p. 783.) In my view, therefore, the instruction was erroneous.
On the evidence presented here, this error was prejudicial. Defendant testified that when he fired his shotgun he was aiming at the rear passenger-side wheel well of Gregory King’s truck, and not at King, and it was undisputed that none of the shotgun pellets hit King, who was standing on the opposite side of his truck. The defense plausibly argued that in discharging the shotgun defendant lacked any purpose to injure King or any awareness that King was in any danger of being injured.
An instruction that omits or misdescribes an element of a charged criminal offense violates the right to jury trial guaranteed by our federal Constitution, and the effect of this violation is measured against the harmless error test of Chapman v. California (1967)
Werdegar, J., concurred.
Appellant’s petition for a rehearing was denied September 26, 2001. Kennard, J., was of the opinion that the petition should be granted.
In the context of assault and battery, the term “injure” does not require bodily harm and includes any “least touching” that is wrongful or offensive to the person who receives it. (Colantuono, supra,
I do not mean to suggest that the Legislature should not reexamine its definition of the crime of assault. Given developments in other jurisdictions, and this court’s own difficulties with the existing definition, such an examination may be overdue. As the authors of a treatise on criminal law in this country have observed, the common law definition of assault, as codified in Penal Code section 240, was once very common but now “is rarely found in the modem codes.” (LaFave & Scott, Criminal Law, supra, at p. 691.)