*1 Jan 1994.] S029545. [No. PEOPLE,
THE Respondent, Plaintiff and COLANTUONO, Appellant. VERNON Defendant and *4 Counsel *5 Court, Walsh, the Defendant F. under for
Joseph appointment by Supreme and Appellant. Olson, R. (Ventura), Defender Susan Deputy
Kenneth Public dayman, Defender, Doyle as T. and John Lundy, Philipsbom Public Thomas F. John Amici behalf of Defendant Curiae on and Appellant. Williamson, General, E. Chief Assistant George
Daniel Lungren, Attorney General, General, Pollack, Assistant Attorney Attorney Carol Wendelin Renner, Nicola, Attorneys E. de F. Katz and J. Robert Deputy Donald Robert General, Plaintiff and Respondent.
Opinion ARABIAN, J. properly we the trial court this case determine whether In Code, (Pen. weapon assault and assault jury deadly instructed so, necessary or mental state 240,245). To again analyze do §§ on this eliminate the contusion to establish these offenses and “hopefully (People v. which has of this state.” developed throughout issue courts [Rocha].) (1971) 3 Rocha
Facts 17, 1990, The facts are but tragic: Early evening brief on the of November men, neighbor- four all friends of were on a young appellant, congregated horseplay. hood street corner and certain amount of talking engaging and One Appellant approached young group exchanged greetings. men, When Gabriel tried to draw into Laguna, “play fight.” appellant declined, appellant Laguna and taunted him. persisted mildly Appellant became somewhat irritated and drew revolver angry magnum or then a .357 his from waistband and it at pointed Laguna. witnesses,
According to of the some Laguna attempted push weapon times, several but away continued to aim it at him. At this appellant point said, asked, either “I’m appellant shoot “Are going you,” Laguna you event, later, In going to shoot any me?” seconds gun discharged shooting in the Laguna neck and him. victim asked the totally paralyzing Appellant “Did I shoot stated “I him” then turned you?” away. shot ran He later himself to the police. witnesses, slight
With discrepancies, the four including percipient victim, recounted the events at trial. took foregoing the stand Appellant his own behalf and testified when he friends on street approached his comer, he was taking his life did contemplating own later that He evening. loaded, know was gun he had for it in although jacket bullets his victim, pocket. Appellant claimed he did not intend to shoot the and fired the only weapon accidentally as it armed Laguna pushed away. He himself for protection against but never gangs gun carried the loaded when he out was on the street. Numerous defense testified witnesses character appellant’s for nonviolence.
The trial court gave standard instructions on assault assault with a deadly weapon,1 with following augmentation: “The intent for requisite *6 the commission of an assault with a deadly weapon is the intent to a gave 1The court the essentially (5th current version CALJIC of No. ed. bound 9.00 vol.), jury which instructed the that the crime of is upon proof assault established of the following elements: another, attempt “1. An apply unlawful was made to physical upon person force the of “2. At the time attempt person of such attempt present ability who made the had the force, to apply physical such and intent, case, which, person making “3. The the attempt general had a criminal in this act, person direct[,] means that such intended to commit an natural probable and consequences of successfully which if be completed application physical would of force upon of another. However, “To constitute an it is necessary not actual any injury that be inflicted. if an injury may is inflicted it be determining with evidence considered in connection other alone, not a sufficient basis for Reckless conduct does constitute battery. another. in an injury even the assault results battery assault or However, to others is committed inherently dangerous when an act reckless- life and act transcends disregard safety, conscious of human ness, The found a battery presumed.” jury the intent to commit Code, 245, (Pen. subd. deadly § of assault with guilty weapon appellant great bodily he inflicted (a)(2)) allegations intentionally and found true Code, firearm in the commis- (Pen. 12022.7) used a personally § Code, 12022.5). (Pen. appellant The trial court sentenced sion of the crime § him at housing to a total of seven state but recommended years prison Authority. California Youth impermissibly above language
On contended cited appeal, appellant beyond every relieved the of element of offense prosecution proving to his mandatory created a presumption reasonable doubt because it modification intent. In a Court of concluded the Appeal divided opinion, The from the consideration. jury’s did not remove the of intent question as a whole stated substance accurately court found that instructions (he forth that would establish the law and set facts predicate granted state. We deadly appellant’s mental weapon, including requisite Courts in decisions of the for review to resolve a conflict developing petition of Appeal.
Discussion deadly weapon the instruction on assault with portion 9.02, in turn No. which the Comments CALJIC question appears (1973) 35 People Cal.App.3d Cal.Rptr. 921] cites v. Lathus al (Lathus), language as its source. contends the Appellant supplemental intent, relieving the thereby unconstitutionally lowed the his jury presume Montana (Sandstrom burden of element. prosecution proof Burres see L.Ed.2d 99 S.Ct. U.S. [Burres].) The (1980) 101 346-353 Cal.App.3d Cal.Rptr. 593] it simply that the instruction was because proper General Attorney responds of an the commission defined those circumstances sufficient establish (Cf. assault without the aid of an impermissible presumption. 668 P.2d Dillon rule of of malice but states [felony-murder rule does create presumption law, eliminating murder degree which defines first alternately substantive somewhere malice].) As we the answer lies proving explain, necessity *7 between, General. by Attorney the advocated the albeit closer to position so, and, of assault.” was the nature whether assault committed (5th 1988) a defining ed. assault with This CALJIC No. accompanied instruction 9.02 proof that was assaulted.” deadly weapon, requires which in part “[a]
213 a deadly intent for and assault with requisite Deciphering People (See, v. recurring e.g., has been a task this court.2 weapon Rocha, McMakin (1857) 547.) in We last addressed the question 8 Cal. 893, supra, People in 3 v. having subject Cal.3d touched previously upon (Hood). Hood (1969) 462 Hood concerned whether issue in of to allow evidence the defendant’s (1 458.) a that recognized intoxication as defense. Cal.3d at Our p. analysis a to re- specific intent-general conventional intent was inquiry inadequate solve the both question directly: definitions could apply equally depending (Id., 456-458.) upon We therefore analytical perspective. resorted “ to “other [policy] considerations” in ‘an this nature deciding that offense of is not one which that through intent is a requires susceptible negation ” intoxication,’ of showing voluntary it could lead to the principally because anomalous result of evidence ... relieve a man of “allow[ing such] for the of responsibility crimes assault with a deadly weapon simple are (Id., which so committed such a manner.” frequently just p. Thus, state, 458.) without definitively articulating requisite mental our decision Hood was consistent with cases” that neither “[m]any holding (Id., offense is a 452.) intent specific crime. at p.
In
supra, we squarely confronted the
held,
with
issue
accord
long-standing
tradition as well
the legislative
as
of Penal Code
history
section
that assault
(3
with
crime.3
deadly weapon
general
is
intent
Hood,
899;
Cal.3d at
supra,
p.
4.)
see
Cal.3d at
and fn.
To
p.
general,
2In
governing principles
of law on intent are the same for both assault and
9.02,
(See
convenience,
deadly
assault with a
weapon.
supra.)
analysis
CALJIC No.
For
our
“assault”;
may at times
simply
refer
apparent,
unless otherwise indicated or
such reference
encompasses both crimes.
argues
3Justice Kennard
wrongly
Rocha was
specific
injure
decided and that a
intent necessary
reasons,
establish
state
mental
of assault.
we
For several
decline
First,
reconsider
general
conclusion that a
injurious
commit an
act suffices.
our
analysis
fully
in Rocha
accords with
century
precedent holding
more than a
that “no
necessary
intent is
to constitute the crime
(1894)
...”
v. Gordan
103 Cal.
534];
Hood,
P.
supra,
see
p.
4.)
1 Cal.3d at
fn.
Notably, none
these
decisions,
court,
including
early
numerous
opinions
questions
proposition
this
this
considers the possibility
contrary
of a
implication
code commissioners
comments
Gordan,
575;
(See,
Penal Code section
e.g., People
240.
v.
supra,
People
103 Cal. at p.
(1886)
790];
Franklin
(1886)
70 Cal.
People
P.
v. Marseiler
70 Cal.
P.
100 [11
503];
People
McMakin,
v. Turner
65 Cal.
P.
see also
supra,
548.)
p.
8 Cal. at
Second, characterizing assault
a specific
crime
legislative
is inconsistent
history of assault with deadly weapon,
great
which at one time included an “intent to do
bodily harm” but was
Legislature
amended
requirement. (Cal.
to delete that
Code
1873-1874,
614, 22,
428;
Turner,
Amends.
ch.
compare People v.
§
215 (1963) v. (People Finley not the intent with which same is 219 employed.” 330, 31].) or dangerous 340 Because offensive Cal.App.2d Cal.Rptr. [33 conduct, nature, contemplates character of the defendant’s virtue of its such criminal intent commit the act suffices to establish injury, general 894, (See (1944) People mental state. v. 66 requisite Cal.App.2d Peak 464], P.2d in People 902 on other v. Carmen disapproved grounds [153 768, (1951) 281].) 36 Cal.2d P.2d 776 [228
Although our discussion Rocha focused on violent- accurately acts, nature of the defendant’s rather than injury-producing separate on independent intention cause such deter- injury, starting as point mining intent for requisite certain measure of understandable analytical (See, uncertainty (1985) continues. 172 e.g., v. Cavazos 589, 269]; 1 Cal.App.3d Witkin & Cal. Epstein, Cal.Rptr. [218 Person, 401, (2d 1988) Criminal Law ed. Crimes 464 Against p. § of assault is “specific battery”].) say [element commit a We “understandable” because this own have court’s decisions occasionally tended to becloud (See People rather than illuminate matter. v. Garcia (1984) 159 722].) 789 Cal.App.3d Cal.Rptr. For example, [205 Carmen, People v. supra, at 36 Cal.2d other page disapproved 668, 684, grounds People v. (1979) Flannel 25 12 Cal.3d footnote stated, 1], 603 P.2d Cal.Rptr. “One could not well very ‘attempt’ try to ‘commit’ an injury on the if he intent another had no cause any injury (See such other (1967) person.” People Coffey also 67 222 430 Cal.Rptr. This implies assertion might assault be a actually intent crime specific despite well-established Hood, authority (See contrary. supra, 4.)5 Cal.3d at fn. p. 898-899, Subsequently supra, 3 Cal.3d at we neither ex- pages pressly disapproved that implication endeavored nor to reconcile the state- (See ment. also v. Wolcott Cal.Rptr. 748, 665 P.2d Rocha for [citing that “to constitute an proposition assault, the defendant must. .. intend to commit a battery”].) confusion, consternation,
We may trace much subject on this traditional shorthand characterization of assault “attempted as battery” that, and the crimes, unexamined assumption as with other it attempted must require a specific Code, (See commit the offense. Pen. underlying 21a; see, Cavazos, e.g., People § 595.) Cal.App.3d p. Rocha, however,
we As confirmed in the law is to the assault contrary: 5Relying in part language, on the least one Appeal cited Court of “it decision found now settled that is a intent crime. Fanning [Citations.]” Hood, 641], Cal.App.2d disapproved 1 Cal.3d at in this inconsistency illogic
is a intent crime.6 general perception meaning that the determination from a failure to appreciate results can often described Although with the criminal context. “attempt” vary *10 reasons, an of adjunct assault is not “attempted simply for historical battery” offense, crime delineated statutorily some but an underlying independent In battery. terms of certain unlawful conduct antecedent to immediately Code, 240), used (Pen. Legislature it as an the of 1872 defining “attempt” § sense, term of we currently the reference in its as the art only ordinary not i.e., a failed or ineffectual effort to commit a substantive conceptualize, Otherwise, Code, (Cf. 21a.) it would unnecessary offense.7 Pen. be § his a If the failed to achieve distinguish assault as crime: separate perpetrator her full simply charge “attempt- or criminal the would objective, prosecution or burglary” ed it murder” battery” might allege “attempted “attempted Code, 664.) (See analogous under circumstances. Pen. § than “The criminal earlier original day of assault an concept developed a much crystallized the doctrine of criminal and on attempt general, ‘The . greater narrower basis in the sense of a of . . degree proximity. the defined: An an act toward may distinction be thus assault is done imme- battery, commission a it must the but it does so battery; precede would, the The diately. appearance, complete next movement at least to all . . be felony may . . act to commit a battery constituting attempt [A]n 2, 2, (Perkins (2d 1969) more remote on Law ed. ch. ....’” Criminal § 118-119; Miller, 533; v. People see v. 2 Cal.2d at People also p. (1970) 589].) Staples 6 Cal.App.3d Cal.Rptr. 67-68 [85 definitional, factual, Assault thus lies on a a continuum of merely not conduct that its essential An assault is battery: describes relation to “An or a is a incipient battery; battery inchoate consummated assault. offense, instances, charge 6In some a of assault may coupled be another substantive commit e.g., rape, assault with some further perpetrator which case must have character, type objective goal-oriented assaultive this accomplish conduct. Given require underlying does specific of crime offense. crime, attempted requires 7To illustrate In the usual that the distinction: case of an the law offense, simply willfully engage the defendant in the underlying intend to commit (See People act preliminary underlying or acts would result offense if completed. Snyder v. Miller (1940) (1935) 2 People also 15 Cal.2d 708-709 P.2d see [104 913].) Cal.2d A.L.R. be convicted example, P.2d For could not attempted rape ground and the evidence grabbing throwing woman her to the unless further established the victim. In specific purpose force an act of sexual intercourse on situation, only coupled attempt law criminalizes the initial act as an when Miller, (See particular culpable blameworthy state of 2 Cal.2d or mind. upon With does not the defendant’s intentions depend conviction act in a beyond long constituting likely itself as as the conduct the assault to result Therefore, (and battery. regardless of battery) the actions described above would be an assault person’s grabbing mental state in victim. battery is a element and it is to commit necessary impossible battery, (1947) assaulting without victim.” v. Greer 512], P.2d in v. Pearson disapproved grounds other This 595].) 357-358 721 P.2d infrangible be- nexus means that once course of conduct violent-injury-producing “The gins, untoward will follow. consequences naturally proximately gravamen of the crime defined section is the likelihood by [Penal Code] applied that the result in attempted applied great bodily be will force injury.” (People McCaffrey 118 Cal.App.2d law criminal thus sanctions initiation independently force violence—the it “assault”—because cul- directly immediately *11 (See (1925) minates v. 71 injury—the “battery.” People Cal.App. Hunter 315, 67].) P. 319 Based this a each constitutes discrete apposition, offense for which only an intent to commit the act is proscribed required. 633; McMakin, (See 630, People (1865) Yslas v. 27 Cal. v. 8 People supra, 548.) p. Cal. at
Considered this from it is clear that the of perspective, question intent for assault is determined the character of the defendant’s willful by conduct considered in conjunction with its and direct conse probable If quences. one commits an act by that its nature will likely physical result another, force on intention particular committing battery thereby of a is subsumed. Since the law seeks to such prevent harm of irrespective any it, actual to cause a purpose general intent willingness criminal or the act satisfies rea mens “As Perkins requirement for assault. Professor it: puts ‘Intent (a) includes those consequences which represent very for which an is purpose (regardless occurrence), act done of the likelihood of ” (b) or are known to be desire).’ certain substantially (regardless to result (Lathus, supra, 470.) 35 at Cal.App.3d p.
Thus, Carmen, observation v. People supra, that “One could not well very or ‘attempt’ to ‘commit’ an try injury on the another he had no intent to any cause injury such other person” technically is (36 775.) accurate. Cal.2d however, at The p. with problem this is language, that it tends implicate goal-oriented a or (See state of mind. specific Hood, supra, 6.) 1 Cal.3d at p. fn. This is misleading implication assault, crime, because for as with general intent nature any of the defendant’s present conduct alone suffices necessary to establish the willful mental state without as to intent to further inquiry cause consequences.8 (Hood, 456-457; 1 supra, Cal.3d pp. People cf. 216 Griggs Cal.App.3d 742 Cal.Rptr. understand what constitutes the [“To Carmen, assessing 8In language 36 respect Cal.2d with to the requisite mental state for must analytical bear in mind its as well as factual the actions we focus on purposes, of another’ our ‘person nature will defendant.”].) a act that of willful Accordingly, upon proof ” “ is immaterial ‘the least “it immediately touching,’ cause directly knew his the law defendant intended to violate whether or not the [citation], intent to any particular conduct was unlawful. The cause another, bodily harm inflicting or to in the sense of severely injure injure (Rocha, supra, and fn. other fns. Cal.3d at necessary.” omitted.) intended to commit is whether the defendant question pivotal force, he or she intended act such not whether likely physical result fn. Because (But see 3 Cal.3d at p. harm.9 force contemplates physical nature of the assaultive conduct itself violence is sufficient to commit “injury,” general attempt establish crime.10 manslaughter instructed on The issue there was whether the trial court should have context. charged upon of felonious assault when the defendant was with murder based the commission time, 774-776.) (Id., yet deadly we had not held first weapon. At degree felony predicated felony integral be on a homicide. second murder could not (See Ireland support concern was those acts that would A.L.R.3d Our therefore to circumscribe degree second murder when finding deadly weapon, always of assault lest would be “it *12 so, person a to do but so as the result of his reckless kills another with no intent does Carmen, 776.) (People p. conduct.” v. 36 Cal.2d at supra, equal importance factually, presented record that the defendant evidence Of established discharged; gun at it fired intentionally carrying he not aim victims when the he was did his Carmen, (People supra, accidentally approaching the car. v. when he stumbled while victims’ found, basis, 776.) therefore should pp. jury 36 Cal.2d at On this could have and instructed, commit only likely injury, he act in but have been that did not an to result violent guilty of only failed to act due caution and for which he would be circumspection with (Id., 776.)
manslaughter. p. at Carmen, inject an supra, v. thus did not the mental state for assault or “intent alter “in requirement. contrary, expressly acknowledged to harm” On the our decision assault may implied it specific—to any particular injury intent need not be cause be from cases Moreover, (36 776.) be p. may . .” at be that an intent can act . . Cal.2d [citation] “[i]t conduct,” although a lesser may support inferred from such conduct also offense. [reckless] Thus, analysis: (Ibid.) respect present in no rather confirms our Carmen contradicts but attempt willfully against an assault one must a violent act another. injure” have Carmen in a later dictum may extrapolated To the extent we from an “intent analysis. supra, page 67 Cal.2d at our As in Coffey, v. mischaracterized Carmen, harming killing only had the defendant testified not that he no intention of gunshots anyone, any person “that at no time his at identifiable to him such.” but he aimed victim, (Id., 221.) they have he p. jury If the believed he did not shoot at the could found at (Id., necessary assault. at violent-injury-producing did not commit a act to establish an 221-222.) reason, completed battery of whether may this the trier fact look to the to determine 9For assault, i.e., engaged directly, would willfully the defendant an in conduct that committed actually naturally, probably injury injury result when in fact such occurred. another 9.00, (See supra.) People v. Cal. CALJIC No. Heise 673 [20 presenting charged does not a with assault from preclude 10This conclusion defendant v. injure (People did intend to or do violence to the victim. evidence that he or she not this than a fist ago, “Holding up
As court more a explained century manner, sword, a gun at menacing drawing bayonet, presenting So, an range, who is within its have been held to constitute assault. person act, any other as denote an accompanied by similar such circumstances time, using intention of existing ability at the actual coupled present another, violence will against the of be considered assault” person McMakin, added; (People supra, People McCoy, at Cal. italics p. Hence, “an intent supra, p. 193.) Cal.2d at mental state is necessary (Hood, merely supra, 458.) to do a at The conse violent act.” of that act serve to inform of quences only whether defendant inquiry another; attempted against force but are physical not person they commenced, Once the violence controlling. “the assault is complete.” Yslas, 27 Cal. at p. to the The Returning hand: of the instruction on problem portion awith deadly finds weapon appellant constitutionally objectionable Lathus, derives from in which the Court Cal.App.3d addressed a Appeal question of sufficiency of the evidence. record established that the defendant had fired several shots a car pistol parked on the shoulder of a highway while traveling along road another vehicle. The shots hit one car’s standing adjacent tires and a (Id., 468-469.) car. at pp. evidence,
In assessing the the Lathus court acknowledged, “Reckless conduct alone does constitute a sufficient basis for assault or for battery even if the assault results to another. [Citation.] ...[<][] However, when an act inherently dangerous to others is committed conscious disregard human life and safety, the act transcends reckless ness, and the intent to commit the battery is presumed; law cannot *13 Thus, tolerate a deliberate and conscious if disregard safety. of human one deliberately employs lethal such as a with actual weapon, gun, or presump tive knowledge that utilized in the manner in which it is used the being occur, infliction of serious bodily injury very another is he is likely presumed to have intended the natural consequences of act. As his deliberate Professor Perkins it: ‘Intent put those (a) includes which consequences represent very purpose for which (regardless an act is done of the likelihood occurrence), (b) of are known to be certain substantially (Perkins 7, result (regardless desire).’ 1, of (2d ed.) on Law Criminal ch. p. § 747.)” (Lathus, supra, 35 469-470.) at Cal.App.3d pp.
McMakin, However, 549.) supra, p. 8 Cal. at jury if from the determines facts act, i.e., willfully defendant committed a violent engaged in conduct that would nature likely and directly in a injury,” result “violent reasonably totality it can find from the of satisfied, circumstances that all elements of the offense including are the requisite mental id., (See 548-549; state. at pp. People (1977) v. Cal.App.3d 75 863-865 Martinez [142 Cal.Rptr.
220 in several decisions subsequent the law was adopted
This statement of (1985) (In 167 Cal.App.3d the evidence. re Brian F. sufficiency of reviewing 195]; (1984) Co. Overton Allstate Ins. v. Cal.Rptr. 674-675 [213 823]; (1982) re 137 In Jose R. Cal.Rptr. 160 850 Cal.App.3d [206 898]; v. People Bedolla Cal.App.3d Cal.Rptr. Martinez, supra, People Cal.Rptr. 6-7 Cal.App.3d 863-864; (1980) 113 People at see v. Cotton pp. Cal.App.3d also Cal.App.3d finding Lathus in evidence Cal.Rptr. [distinguishing 302-303 814] conviction].) insufficient to sustain context the first time
The intent issue arose an instructional Burres, which the trial court supra, Cal.App.3d supplemented from assault with a with a weapon paraphrase standard instruction on deadly “ dangerous ‘When an act to others is committed inherently Lathus: a battery commit disregard conscious of human life and safety ” 347.) this (101 at The Court found Cal.App.3d Appeal of presumed.’ p. constitutionally of the instruction infirm. Since the “intent portion offense, was an element of added created battery” provision relieved its entire presumption impermissibly prosecution proving In (Id., 350-353.) case at this beyond reaching reasonable doubt. pp. Lathus, conclusion, the did not issue as to either the supra, court take (Burres, intent. analysis substantive or the of sufficient evidence of finding supra, at When that was formulated as p. analysis Cal.App.3d instruction, however, as irrefut- “the could have jury presumption taken able or the burden the lack of intent casting appellant proving upon 353; (Id., battery.” commit a see also Riederer p. instructional error Cal.App.3d [assuming harmless].) but it asserts similar claim of error here. finding Appellant We are that the Lathus this case created an unpersuaded instruction estimation, In unconstitutional our the lan- burden-shifting presumption. at issue conduct guage constituting including describes defines 899; (See general element of criminal intent. Dillon, 474-475.) cf. 34 Cal.3d at An act “inherently dangerous to others” is result likely “violent Code, 240.) (Pen. another.” If done “with conscious human disregard § *14 life and must be of the of the safety,” perpetrator aware nature conduct i.e., ignore and choose to If these potential willfully. act injury, fact, are to the the trier of predicates proven satisfaction of requisite rather, (See intent is not it is evidence.11 “presumed”; by established Carmen, 775; People (1944) 36 supra, p. People v. Cal.2d at v. Corlett 67 33, Carmen, 595], in 55 on other Cal.App.2d disapproved grounds [153 Burres, otherwise, supra, disapproved. the extent 101 Cal.App.3d 11To 341 holds it is
221 crime, 776.) at find that the being general jury Assault once p. instruction, in in the willfully they defendant the conduct described engaged necessarily will have determined the of intent of any question independently Hood, 458, 7; (See 1 see supra, Cal.3d at fn. also legal presumption.12 p. 570, 460, 472-473, (1986) Rose v. Clark 478 U.S. 581 L.Ed.2d 106 S.Ct. [92 344, 3101]; 307, (1985) 471 Francis v. Franklin U.S. 314-315 L.Ed.2d [85 353-354, 140, 1965]; (1979) 105 S.Ct. Allen 442 U.S. County Ulster Court v. 777, 792-796, Miller, 2213]; People 157-163 L.Ed.2d 99 S.Ct. cf. v. [60 supra, 532-533.) 2 Cal.2d at The in instruction this case did pp. supplemental F., no more than explain (Cf. supra, this distinction. In re Brian 167 675, p. 2.) at fn. Cal.App.3d here,
Although
find no error
neither we
the language
do
sanction
Lathus,
466,
supra, 35
aas
direction to the
Cal.App.3d
proper
jury.13
Since intent always
supra,
remains an issue
fact
McCoy,
v.
25
192;
R.,
Cal.2d at
re
277),
In
Jose
p.
supra, 137
at
p.
Cal.App.3d
jury
must clearly understand its
to resolve that
responsibility
question beyond
doubt,
reasonable
uninfluenced and unassisted
other
of law.
by any
principle
(See People
613,
(1970)
v. Marceaux
3
Cal.Rptr.
619-620
Cal.App.3d
[83
798],
899,
on other
disapproved
3
grounds
supra, Cal.3d at
fn.
p.
8;
Hood,
458,
Moreover,
see
1
also
supra,
fn.
light of
recent refinements
United States
Court
Supreme
regarding presump
tions and their effect on the
prosecution’s
any
burden
reference of
proof,
the word
“presume”
(See
its derivations can prove problematic on review.
263,
218,
(1989)
Carella v.
491 U.S.
265-267
L.Ed.2d
[105
California
Clark,
2419];
109 S.Ct.
Rose v.
supra,
continue deadly and assault instructions for assault jury on standard (Cf. People the case. facts of by peculiar unless weapon compelled 841, 1221-1222 783 Cal.Rptr. Dellinger [264 Cal.3d above, that the claim reject appellant’s we For reasons discussed constitutionally impermissible CALJIC No. created a 9.02 augmentation Moreover, even of his warrants reversal conviction. presumption erred, the jury’s not here: Given that fact would alter result trial court the mean within great bodily injury inflicted finding appellant that express was, 12022.7, deficiency beyond any possible of Penal Code section ing doubt, Cal.App.3d Lesnick prejudicial. reasonable 491]; (1970) 3 People Cal.App.3d v. Spence Cal.Rptr. [234 711], on grounds other disapproved 605-606 Cal.Rptr. [83 8; (1989) 1 at fn. v. Howard Cal.4th see Clark, pp. 478 U.S. 824 P.2d Rose v. Cal.Rptr.2d a determination 471-475].) finding This required L.Ed.2d pp. inflict such with the preliminary appellant, fact the victim inflict did injury, personally great bodily (1991) 232 (See People v. Calderon of the crime alleged. commission have could 833].) Although jury Cal.Rptr. Cal.App.3d otherwise, this conclusion. the evidence is sufficient to support decided Moreover, the Lathus instruc find record nothing suggesting question. deliberation on this jury’s tion affected prejudicially
Disposition judgment
The of the Court of affirmed. Appeal J., Panelli, Baxter, Lucas, J., J., J., George, C. concurred. of the J., review to nature MOSK, Concurring. clarify We granted This step element assault. mental of the component unlawful-attempt (1971) 3 a minor dictum Rocha necessary became because (Rocha) led to some 479 P.2d has Cal.3d 893 I the confusion the law. welcome the elimination of majority’s confusion created that dictum. by . must . .
The that to assault “The evidence majority prove conclude a ‘violent attempted the defendant willfully purposefully demonstrate that i.e., means of act touching,’ wrongfiil or ‘the least committed injury’ ‘any ante, (Maj. opn., against force another.’ physical [Citation.]” 214-215.) are correct. majority
223 (all Penal code) Code section 240 references are to this defines statutory “an as unlawful with a to commit a attempt, coupled ability, present violent on the The injury of another.” statute does not person explicitly the mental state It specify explain for this crime. does that assault required act, another, (1) an an requires: consisting injure unlawful to attempt (2) the current physical ability injury. Clearly the first element, act, has mental integral if the actor uncon- component: act, 26, (§ Four.)1 scious his or her no crime is committed. subd. Section 240 describes In People to “commit” an v. “attempt” injury. 768, (1951) Carmen 36 Cal.2d (Carmen), 775 P.2d disapproved 668, 684, in People (1979) another 12 point Flannel 25 Cal.3d footnote 84, 1], Cal.Rptr. 603 P.2d noted that “One could not well very ‘attempt’ try to ‘commit’ an on the of another he had injury person no intent to cause to such any injury other person.” ante,
As the majority 8), note (maj. & opn., pp. 217-218 fn. Carmen was I agree. correct.
The majority’s conclusion is strongly buttressed by legislative history of the assault statute. code commissioners’ note to section 240 provides (and in relevant part with all in the original): italics “Intent Strike.—An assault has also been said be an intentional attempt, by violence, to do an to the It be another. must intentional. If there is no present purpose do an injury, there is no There must assault. also be an A attempt. purpose accompanied an effort into carry immediate execution falls short of an assault. Thus words no can amount to an assault. But rushing towards another with menacing gestures, strike, assault, purpose anis though the accused is from prevented striking before he comes near enough (Code to do so. . . .” comrs. note foll. Ann. Code, Pen. (1st Burch, 240§ ed. & Haymond comrs.-annotators) p. 104.) This (See statement is authoritative. Superior (1988) Walker v. Court 47 Cal.3d Cal.Rptr. P.2d Thus, Carmen’s conclusion that assault requires purpose injure was sound. As we stated in Wolcott 99 [192 520], Cal.Rptr. P.2d “to constitute an the defendant must .. . intend to commit a . . .” battery . To the same effect is Fain 34 694]. required firearm, 1The simple mental state for assault and charged assault with a here (§ (a)(2)), subd. greater is the same. The crime varies only from the lesser it in that contains the additional element of the use aof firearm. There is no additional or different mental element. *17 Rocha, that “the criminal commented supra, 3 Cal.3d Unfortunately, is the general ... deadly weapon . . for assault required . direct, conse- probable natural and commit an act the wilfully quences successfully completed injury to the another.” which would be (Id. 899.) at p. decided, the dictum above quoted and and large soundly
Rocha was alas, dike, the dictum But is a a and constituted a minor flaw. so pinhole “direct, The aside gave probable consequences” rise to natural and mischief. (CALJIC No. on assault now the standard instruction jury forms the basis of (5th of the instruction vol.)), and the basis 9.00 ed. 1988 bound also formed given this case. law and CALJIC violated state an instruction based on No. 9.00
Giving to convict language permitted jury the federal Constitution because he had a doubt that finding beyond defendant of assault without reasonable 365-367 (See People Cal.4th injure. Williams purpose Mosk, J.).) The errors (conc. 841 P.2d Cal.Rptr.2d opn. 961] act inherently that “when an were another instruction compounded by giving life of human disregard is committed with a conscious dangerous others recklessness, a battery and transcends and the intent to commit the act safety, legally as well as bewildering That instruction was entirely presumed.” faulty.2
Thus, on reexamination. requires standard instruction warn, however, can find the actor’s jury are that majority right (See maj. the act. injure by surrounding was to circumstances purpose ante, 218-219, opn., fn. law the federal Con- giving the instructions violated state
Although because, observe, stitution, majority jury the errors were harmless as inflict great bodily injury found that defendant intended to specifically errors, of the instructions the victim. federal constitutional on the basis Any here, crime, from or of taking jury issue an element of misstating “direct, that natural Attorneys 2Amicus curiae for Justice contends California Criminal Rocha, supra, Cal.3d sets forth probable consequences” formulation contained in component minimum mental of recklessness. legislative language omits the point, long There is no need to decide this for as incorrect, whatever level of say of a it suffices to that it is requirement purpose injure, abstract, may actually stand represents. But viewed formulation culpability it Rocha ¿ability, any component beyond the intent do for strict because it omits mental whatever recklessness, act was language specify would need to that the act. For the Rocha mean it disregard of the risk. done conscious liability Clearly say that assault is a strict 3 Cal.3d never intended crime. intent, thus v. Illinois question (Pope of defendant’s were harmless. (1987) 107 S.Ct. U.S. L.Ed.2d 445-446 182,190,113 (1993)_U.S____[124 Sullivan v. S.Ct. Louisiana L.Ed.2d [dictum].) clear jury The same conclusion finding requires mental state law errors instructions that set forth the state giving wrong both, an element were were harmless. confusing, v. Watson
KENNARD, J., Concurring and is the mental Dissenting.—What culpable act, required state to commit an it the an likely assault? Is do of which is Or is it the intent to consequence physical injury to another? injure physically another? case,
In this the majority general concludes that “a criminal intent to commit the act suffices to establish the mental state” of the crime requisite assault, long so as “the willfully defendant an act that by committed will nature probably and result in .” directly to another . . . injury (Maj. ante, 214-215.) The opn., reaches majority reaffirming this conclusion by our attempting (1971) decision in clarify v. Rocha 3 Cal.3d view, 893 479 P.2d Cal.Rptr. In my Rocha was wrongly 372]. decided, and has been a source of confusion that the does majority opinion not succeed would overrule dispelling.1I and hold that is a assault intent crime requires that defendant intend to injure victim.
The crime of assault is defined statute. Penal by Code section 240 “An provides: assault is an unlawful attempt, with coupled present ability, to commit a violent on the person another."
As with all questions of statutory the aim of interpretation, the courts is to ascertain the intent of the Legislature, and to effectuate it. (E.g., Woodhead 741 P.2d Cal.Rptr. v. Young Woods Cal.Rptr. Here,
455].) the legislative intent is clear from legislative history. Penal Code section 240 was enacted in 1872 and has never been amended. In enacting section Legislature followed the recommendation of the code commissioners who it. proposed Legislature When the follows 1The confusion that continues despite majority’s opinion by is illustrated the differences opinion this between and Justice concurring opinion. Mosk’s concurring Justice Mosk’s opinion reads the majority holding that the requires crime of assault an intent to injure. Because agrees Justice Mosk holding, this he majority. concurs with the Although I agree not, requires with Justice Mosk that assault an injure, majority opinion does view, my so conclude. as it did change, commission without of a law revision
recommendations evi- strong provide the comments of commissioners with section (1985) 40 Cal.3d People v. (See, e.g., dence of the intent. legislative Garfield 196, 707 P.2d in relevant states Penal Code section 240 commissioners’ note to code Strike.—An (and italics in the original): with all part “Intent violence, an injury to do an attempt, by also said to intentional has been be purpose If there is no present It must be intentional. to the another. A attempt. purpose an no There must also be an there is assault. injury, do short of falls into immediate execution an effort carry not accompanied rushing But towards to an assault. Thus no words can amount assault. strike, purpose and with gestures, another with menacing enough he near striking before comes from though prevented accused is So, exhibited an Embassador ... where [sic] do so.—[Citations.] to the crowd of his which offense gave in the window house painting *19 without, defendant, crowd, the painting fired a at the pistol among and to in the window and his servants were time when the Embassador very [sic] Held, them, [,] it, in fact did not intend to hurt of and any remove but did not could be no conviction no intent there injure person that there to being Code, Ann. Pen. (Code note foll. for comrs. § an assault. [Citations.]” Burch, 104-105.)2 comrs.-annotators) & (1st ed. Haymond is insufficient injury do act to cause Accordingly, likely the intent to an “If present is there is no injury for to commit an required. assault. intent (Code Ann. is comrs. note foll. do an there no assault.” injury, to purpose Code, 240, Pen. at p. § victim, specific it must be a injure
If the intent to assault requires Cal.3d.444, (1969) 1 crime. In v. Hood intent 370], the difference between specific P.2d this court explained descrip- crime only intent: “When the definition of a consists general act, to intent to a further act tion of a without reference do particular do intended to achieve a future we ask whether defendant consequence, criminal intent. deemed be a general act. This intention is to proscribed to do further act or When the definition refers to defendant’s intent some one of achieve the crime is deemed to be consequence, some additional intent.” specific injure may be proceeds explain that the intent 2The code commissioners’ note yield to a weapon, coercing him to “[T]hreatening another with a a means of conditional: assault, demand, refuses, complies, an intending to but not to strike if he is strike he no although party negotiates finally given. blow It makes difference the other no is note, (Code comrs. purpose only violence is not absolute but conditional.” 105; also, People McCoy (1944) see 192-193 [153 assault,
In the case of the victim an “additional injury to is conse- beyond the be guilty commission of act itself: to quence” punch only swing, defendant who throws a at the victim must intend not but also that the will have the punch consequence additional victim. Assault is therefore a intent crime. specific
There is additional for is support specific conclusion my intent crime. Section 242 of the willful battery Penal Code defines a as “any and unlawful use of force or violence of another.” Section upon 240 defines an an assault as unlawful attempt, coupled present ability, words, to commit physical injury another. In other an assault is Code, to commit attempt battery, whether successful not. Penal section 21a has this say about an “An to commit a crime attempt: attempt consists crime, two specific elements: a intent to commit and a direct but ineffectual act done (Italics toward its added.) commission.” Accordingly, since assault attempt to commit a and an battery, attempt requires intent, the specific mental state element of assault is the specific commit a battery.
In holding crime, that assault is anot the court relies, supra, 3 Cal.3d on which the majority may have over looked the code earlier, commissioners’ I comments referred to are they not mentioned in Rocha. The majority attempts resolve the “understand *20 ante, able analytical caused uncertainty” 215), (maj. Rocha but opn., at p. succeed, does not because it is impossible to how one logically explain may attempt Therefore, commit battery without commit desiring to one. should not attempt to clarify but forthrightly should overrule it. Because, shown, as I crime, have assault is a intent specific it follows that in this case the jury instruction given—that “when an act inherently danger- ous to others is committed with a conscious of human life disregard ... safety intent to commit a battery is defective. Was presumed”—was it prejudicial on this record? No. My reasons follow.
Although the presumption affected the only element offense issue, the doubt, error was beyond harmless a reasonable for the issue was another, necessarily resolved adversely defendant under properly given instruction. Sedeno Specifically, on instructing jury the allegation
defendant had inflicted great bodily injury, trial court “If stated: find you firearm, guilty defendant of assault with a you must determine whether or defendant, not such specific with the intent inflict such did injury, person ally great inflict bodily on injury (Italics added.) [the The jury victim].” true, necessarily thus found to be allegation the enhancement
found the victim. a physical had the defendant only. the judgment affirmance of majority’s I concur Accordingly,