Opinion
Previously published at 15 Cal.App.4th 999, 9 Cal.App.4th 1116
Review Granted Dec. 3, 1992. [Copyrighted Material Omitted] [Copyrighted Material Omitted] COUNSEL
Joseph F. Walsh, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.
Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Acting Sr. Asst. Atty. Gen., Robert F. Katz, Supervising Deputy Atty. Gen., and J. Robert Renner, Deputy Atty. Gen., for plaintiff and respondent.
OPINION
FRED WOODS, Associate Judge.
A jury convicted appellant of assault with a firearm (PEN.CODE, §§ 245 , subd. (a)(2), 12022.5) and found true a great bodily injury allegation (§ 12022.7). The trial court stayed the great bodily injury enhancement and sentenced appellant to state prison for a total term of seven years. Appellant contends the trial court: (1) made instructional errors; (2) wrongfully denied his in-trial continuance motion; and (3) committed Miranda error. We find no prejudicial error and affirm the judgment.
Unless otherwise noted all statutory references are to the Penal Code.
The Rocha opinion was authored by Chief Justice Wright. The other Justices signing this opinion were Peters, Tobriner, Mosk, Burke, Sullivan, and McComb.
FACTUAL BACKGROUND
There is no insufficiency of evidence claim. We summarize the evidence with a focus on appellant's instruction error contentions.
On November 17, 1990, at about 6:30 p.m. four boys and young men, all friends, were talking and playing around on a neighborhood street corner. Sergio, 20 years old, lived directly across the street. Gabriel, 14 years old, was "play wrestling" with Eddie, while Charles, 14 years old, was just talking.
All ages are at the time of trial, May 1991, six months after the crime.
Even assuming the majority opinion is correct in its argument assault does not require an intent to attempt to commit a battery, the instruction is defective. Assume arguendo the only intent required is the "general intent to wilfully commit an act the direct, natural and probable consequences of which if successfully completed would be the injury to another." ( Rocha, supra, 3 Cal.3d at p. 899, 92 Cal.Rptr. 172, , italics added.) The instruction given in this case informed the jurors the intent element--specific or general--is to be presumed if it finds the defendant committed an act "inherently dangerous to others" and "with a conscious disregard of human life and safety."
He was not asked his age.
Appellant, 20 years old, also a neighbor, walked over to the group and they exchanged greetings.
Gabriel stopped "play wrestling" with Eddie and tried to engage appellant in a "play fight." Appellant refused. Gabriel persisted, taunting appellant. Appellant drew his .357 magnum, fired once, the bullet striking Gabriel, five feet away, in the neck. The gunshot wound caused Gabriel to be permanently paralyzed from the neck down.
Five persons observed these events. All testified. There was both agreement and disagreement in their descriptions. We synopsize each account.
CHARLES: After appellant walked over to us Gabriel gave him a playful little push. Appellant got mad and told Gabriel "to knock it off." Appellant pulled his gun from his jacket and said "Don't think I won't shoot you." He was standing about two and one-half feet from Gabriel pointing the gun at him. Gabriel tried to push the gun away two or three times but appellant pointed it at him again. Gabriel's hand was not touching the gun when it went off. Appellant just stood there a moment, jumped up like he was scared, and said "Oh shit, I shot him." Appellant asked Gabriel, "Did I shoot you?" Then appellant said "Don't tell anybody I shot him" and ran away.
GABRIEL: The four of us were just "horsing around" when appellant joined us. I can't remember what we were talking about. Appellant reached into his jacket, pulled out a gun, and "shook it in front of my face." There was a flash--I was "a little bit unconscious" and heard him say "I shot him."
EDDIE: When appellant walked up Gabriel started "slap boxing" with him, hitting their hands on each other's hands. Appellant said to Gabriel "I'm going to shoot you." He said it "playing around." Gabriel said "No you won't." Appellant pulled a gun and, without saying anything else, shot Gabriel. Appellant yelled "I shot him." Appellant then ran toward his house.
About a week earlier, when we were at a friend's house and I was sitting on the couch, appellant pointed the gun at me and fired. I was scared. But it was only a blank.
SERGIO: I've known appellant for 10 years, he lives down the street.
Gabriel and Eddie were "play wrestling" when appellant walked over to us. Gabriel tried to pick a "play fight" with him. He taunted appellant and appellant didn't like it, I could tell from his expression. Appellant told Gabriel "to stop it at that moment." Gabriel persisted and appellant got angrier. "Next thing you know, Gabriel and [appellant] started pushing each other a little, which [appellant] didn't like." When appellant pushed Gabriel, appellant "wasn't playing no more." Appellant pulled his .357 magnum from his left hip. Gabriel said "Are you going to shoot me?" and appellant said "I might." When appellant pointed the gun I turned away. After the shot appellant said "Oh, my God I shot him." Appellant shot Gabriel in the neck under the chin.
I had seen appellant with the gun many times.
APPELLANT: I had owned the gun for a few months and carried it with me except when I went to work. It was always unloaded. On November 17 I took the gun with me because I intended to shoot myself later that evening. I believed the gun was unloaded because it always was, although I didn't check it. I had three loose bullets in my pocket. When I walked over to Gabriel and the others I was on my way to a friend's house. I don't remember taking the gun out but at some point I had it in my hand. Gabriel grabbed it and it went off.
About a week earlier, at a friend's house, we shot some blanks with my gun but I didn't shoot one "at Eddie."
....
Later that evening appellant, with his father, went to the police station and surrendered. He told Officer Root where he had hidden the gun. Another officer promptly recovered it. The gun had five live rounds and one expended casing.
When appellant was searched and booked no loose bullets were found.
Appellant testified he must have lost the three bullets climbing over and under fences when he ran home after the shooting. Months later, when his lawyer told him to look for the three bullets, he found two of them.
DISCUSSION
1. Appellant contends the trial court erred in its "requisite intent for assault with a deadly weapon" instruction.
The court gave three instructions relating to the "requisite intent for assault with a deadly weapon": CALJIC No. 3.30 (1989 Revision) ["... there must exist a union ... of act ... and general criminal intent"], CALJIC No. 9.00 (Assault-Defined), and CALJIC No. 9.02 (Assault ... With Firearm), as modified. This instruction, No. 9.02, reads:
"Every person who with general criminal intent makes an unlawful attempt coupled with the present ability, to apply physical force upon the person of another is guilty of the crime of assault. [p] In order to prove such crime, each of the following elements must be proved:
"Defendant is accused in Count 1 of the information of having violated Section 245(a)(2) of the Penal Code, a crime.
"Every person who commits an assault upon the person of another with a firearm is guilty of a violation of Section 245(a)(2) of the Penal Code.
"In order to prove such crime, each of the following elements must be proved:
"1. A person was assaulted, and
"2. The assault was committed with a firearm.
"A firearm includes a handgun.
"Actual bodily injury is not a necessary element of the crime.
"If such bodily injury is inflicted, its nature and extent are to be considered in connection with all the evidence in determining whether the means used and the manner in which it was used were such that they were likely to produce great bodily injury.
"The requisite intent for the commission of an assault with a deadly weapon is the intent to commit battery. Reckless conduct alone, does not constitute a sufficient basis for assault or for battery even if the assault results in an injury to another. However, when an act inherently dangerous to others is committed with a conscious disregard of human life and safety, the act transcends recklessness, and the intent to commit a battery is presumed." (Emphasis added.)
Appellant's argument is solely addressed to the modification of CALJIC No. 9.02, the last paragraph, which we have italicized.
Respondent suggests we should decline to review this contention because appellant failed to timely object to the instruction and his belated objection was neither specific nor clear. Although there is some merit in this suggestion, we reject it. An appellate court "may" review instructional error even when "no objection was made" (§§ 1259, 1469). Here, appellant did object.
Appellant's argument is based upon, and recapitulates, People v. Burres (1980) 101 Cal.App.3d 341, 161 Cal.Rptr. 593. It is this: (1) the intent required for an assault (with or without a deadly weapon) is an intent to batter (2) the trial court eliminated the intent element of assault by giving a presumption instruction and (3) since the jury may have considered the presumption conclusive, appellant was denied due process of law.
As we explain, not only is appellant's argument mistaken, but it is mistaken as to each of its parts.
a. Assault does not require an intent to batter
An assault is an attempt, "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§ 240.) More concisely, an assault is an attempt to commit battery.
Since an element of an attempt is "a specific intent to commit the crime " (CALJIC No. 6.00 ), an assault (i.e., an attempt to commit battery)--logic and consistency tell us--must contain a specific intent to commit battery. Once it may have been so. (People v. Carmen (1951) 36 Cal.2d 768, 774-775, ; 1 Witkin, Cal.Crimes (1963) § 256, p. 242 ["An assault is an attempt ...; hence the elements of an attempt must be shown, i.e., a specific intent to commit a battery ... "].) But ultimately those stalwart warriors, Logic and Consistency, again suffered defeat. The battle, while it raged, was intense. (See generally People v. Morrow (1969) 268 Cal.App.2d 939, 949-953, 74 Cal.Rptr. 551.) Its end is described by Witkin & Epstein: "In People v. Hood (1969) 1 Cal.3d 444, 82 Cal.Rptr. 618, , the court reexamined the question, reviewed the authorities, and pointed out that the distinction between specific and general intent crimes evolved as a judicial response to the problem of the intoxicated offender. (1 Cal.3d at 455, 82 Cal.Rptr. 618, .) 'It would therefore be anomalous to allow evidence of intoxication to relieve a man of responsibility for the crimes of assault with a deadly weapon or simple assault, which are so frequently committed in just such a manner.' (1 Cal.3d at 458, 82 Cal.Rptr. 618, .) Contrary cases were disapproved. (1 Cal.3d at 459, 82 Cal.Rptr. 618, .)
CALJIC No. 6.00 states: "An attempt to commit a crime consists of two elements, namely a specific intent to commit the crime, and a direct but ineffectual act done toward its commission."
"The issue was again examined in People v. Rocha, supra. The court first noted that, in Hood, 'we declined to categorize' as either general or specific the intent required for either simple assault or assault with a deadly weapon. (3 Cal.3d at 897, 92 Cal.Rptr. 172, .) The court then specifically adopted the majority rule with respect to assault with a deadly weapon:
" 'Traditionally, simple assault, and assault with a deadly weapon have been referred to as "general intent" crimes. The mens rea of such offenses is established by showing "an intent to perform an act of such a nature that the law declares its commission punishable as a criminal offense." The act must be committed wilfully but knowledge that it is unlawful or a belief that it is wrong need not be proven. We adhere to those cases that hold that assault with a deadly weapon is a general intent crime.' " (1 Witkin, Cal.Criminal Law (2d ed. 1988) § 415, p. 476; original emphasis.)
The Rocha coup de grace was not entirely tidy. After dispatching specific intent as an assault element, the point at which the above Witkin & Epstein quotation stops, Rocha then stated: "It remains to define what that intent is." (People v. Rocha, supra, 3 Cal.3d 893, 899, 92 Cal.Rptr. 172, .)
Rocha then began its definition effort, stating: "An assault is an unlawful attempt, coupled with the present ability, to commit a violent injury on the person of another, or in other words, it is an attempt to commit a battery. [Citations.]" (Ibid.) So far, so good. But now what? Logic and Consistency require the conclusion that "therefore the requisite intent of assault is the intent to batter." But an "intent to batter" is a specific intent, which Rocha had just rejected.
To avoid this apparent dilemma, Rocha first employs a "bridge" sentence, largely recapitulating what it had already stated, and then, in the next two sentences, defines the criminal intent of assault. The "bridge" sentence is the following: "Accordingly the intent for an assault with a deadly weapon is the intent to attempt to commit a battery...." (Ibid.; emphasis added.)
This sentence was not intended to, and does not, define the intent element of assault. To define the intent or mental state or mens rea of a crime is to identify the mental state that must accompany conduct to make that conduct a crime. The essential ingredient of any such definition is its identification of that requisite mental state which co-exists with conduct (CALJIC No. 3.30). In specific intent crimes, such as burglary, present conduct (entering a structure) must be coupled with a future-looking state of mind (an intent to--in the future--commit theft or a felony). In general intent crimes, such as rape, present conduct (sexual intercourse) is coupled with a present-looking state of mind (knowledge of the act). In both, the requisite state of mind is that which must co-exist with and accompany conduct which, together--act and intent--constitute a crime.
In contrast, an "intent to attempt " does not identify a mental state which accompanies conduct. Rather, it describes a mental state which precedes conduct. On Monday, one may intend to attempt to steal a car on Tuesday. But on Tuesday, while engaged in that attempt, one no longer intends to attempt, one is attempting.
Following the "bridge" sentence, Rocha then does define intent for assault. It states: "We conclude that the criminal intent which is required for assault with a deadly weapon and set forth in the instructions in the case at bench, is the general intent to wilfully commit an act the direct, natural and probable consequences of which if successfully completed would be the injury to another.... The intent to cause any particular injury [citation], to severely injure another, or to injure in the sense of inflicting bodily harm is not necessary." (Ibid.; emphasis added.)
"The instruction provides: 'An assault with a deadly weapon is an unlawful attempt, coupled with a present ability, to commit a violent injury upon the person of another with a deadly weapon. Any object, instrument or weapon, when used in a manner capable of producing and likely to produce death or great bodily injury, is then a deadly weapon.
In sum, assault is a general intent crime and does not require an intent to batter. b. The trial court did not eliminate the intent element of assault by giving a presumption instruction.
At appellant's request the trial court erroneously, but beneficially to appellant, instructed the jury: "The requisite intent ... of an assault with a deadly weapon is the intent to commit battery." The court further instructed the jury that this intent is presumed "when an act inherently dangerous to others is committed with a conscious disregard of human life and safety."
Considered together, as the jury was told they should be (CALJIC No. 1.01), the instructions stated that either of two intents satisfied the requisite intent for assault with a deadly weapon: (1) intent to commit battery or (2) doing an act inherently dangerous to others with a conscious disregard of human life and safety.
Although, as appellant correctly argues, if the jury determined the second intent was proved then the first was eliminated, this did not eliminate the intent element of assault. As we have explained, the first (intent to commit battery) is not an element of assault. The second, which at a minimum the jury was required to find, was an accurate statement of law. (People v. Lathus (1973) 35 Cal.App.3d 466, 471, 110 Cal.Rptr. 921; People v. Martinez (1977) 75 Cal.App.3d 859, 863, 142 Cal.Rptr. 515; People v. Bedolla (1979) 94 Cal.App.3d 1, 6, 156 Cal.Rptr. 171; In re Jose R. (1982) 137 Cal.App.3d 269, 275, 186 Cal.Rptr. 898; Allstate Ins. Co. v. Overton (1984) 160 Cal.App.3d 843, 849-850, 206 Cal.Rptr. 823; In re Brian F. (1985) 167 Cal.App.3d 672, 675, 213 Cal.Rptr. 195.)
In fact, the jury found appellant had the intent to commit battery. Their "true" finding of the great bodily injury allegation stated: "the said defendant ... with the intent to inflict such injury, personally inflicted great bodily injury upon [the victim]...." (Emphasis added.)
People v. Burres, supra, 101 Cal.App.3d 341, 161 Cal.Rptr. 593, upon which appellant relies, misreads and miscites Rocha. Burres states: "The intent necessary to commit an assault is the intent to commit battery. (People v. Rocha, supra, 3 Cal.3d at p. 899, .)" (Id. 101 Cal.App.3d at p. 346, 161 Cal.Rptr. 593.) As we have taken pains to explain, Rocha holds the opposite. Neither on page 899, 92 Cal.Rptr. 172, , as cited by Burres, or anywhere, does Rocha state the requisite intent of assault is intent to commit battery. Burres (as does Lathus, supra, 35 Cal.App.3d at p. 469, 110 Cal.Rptr. 921) mistakes the unfortunate Rocha sentence ("Accordingly the intent for an assault with a deadly weapon is the intent to attempt to commit a battery ...") for one absent from and deliberately eschewed by Rocha. This misunderstanding fundamentally flaws Burres. (See also People v. Cotton (1980) 113 Cal.App.3d 294, 169 Cal.Rptr. 814 [A divided court distinguished Lathus but also misconstrued it.] and People v. Riederer (1990) 217 Cal.App.3d 829, 266 Cal.Rptr. 355 [The court went to extraordinary lengths in assuming Lathus error and assuming no invited error in order to disagree with Burres that Lathus error required automatic reversal. Riederer does not cite or discuss People v. Benson (1982) 130 Cal.App.3d 1000, 180 Cal.Rptr. 921, decided by the Burres court, which abandoned automatic reversal and adopted the Chapman standard (Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705.).].)
We note that In re Daniel R. (1992) 9 Cal.Rptr.2d 9, which agreed with Burres, and whose rationale the concurring opinion adopts--was ordered depublished by our Supreme Court on September 3, 1992.
c. Even if the jury considered the "presumption" conclusive, appellant was not denied due process of law.
As we have explained, the subject instruction stated that either of two intents satisfied the requisite intent for assault with a deadly weapon. Since one (intent to commit battery) exceeded the legal standard and the other accurately described the legal standard, the instruction did not deny appellant due process of law. 2. Appellant contends the trial court erred in giving CALJIC Nos. 4.45 and 3.36.
The CALJIC Committee could prevent this recurring Lathus problem by correcting its Comment to CALJIC No. 9.02 (1 CALJIC (5th ed. 1988) 439-440) and by adding an alternative paragraph to CALJIC No. 9.00.
CALJIC No. 4.45, modified, was requested by appellant. The prosecutor objected to the instruction but said if it was given it should be given in its entirety, not as modified by appellant. The trial court then asked trial counsel for appellant, "Do you want it in its entirety [ ]?" and he said "Yes."
The instruction reads: "When a person commits an act or makes an omission through misfortune or by accident under circumstances that show neither criminal intent nor purpose, nor criminal negligence, he does not thereby commit a crime."
Trial counsel for appellant explained to the trial court that his initial modification, deletion of "nor criminal negligence," was "because we don't have an instruction that says what criminal negligence is."
With the acquiescence of appellant's trial counsel, the trial court then added CALJIC No. 3.36, the instruction which defines criminal negligence.
" 'Criminal negligence' means conduct which is more than ordinary negligence. Ordinary negligence is the failure to exercise ordinary or reasonable care.
Appellant now contends the court erred in giving these instructions.
Appellant, having requested these instructions as a matter of tactics, is barred by the invited error doctrine from claiming error. (People v. Marshall (1990) 50 Cal.3d 907, 931, 269 Cal.Rptr. 269, ; People v. Gallego (1990) 52 Cal.3d 115, 183, 276 Cal.Rptr. 679, ; People v. Cooper (1991) 53 Cal.3d 771, 830, 281 Cal.Rptr. 90, ; People v. Duncan (1991) 53 Cal.3d 955, 970, 281 Cal.Rptr. 273, .) 3. Appellant contends the trial court abused its discretion by denying appellant's in-trial continuance motion.
Appellant contends the trial court erred in denying his motion for an in-trial continuance. The motion was apparently made at the bench and was not reported. Based upon later, reported, colloquies and appellant's motion for a new trial, it appears that near the end of the prosecution's case, on Monday, May 20, 1991, appellant requested a continuance until either Wednesday or Friday, when he believed his "expert" witness, a Dr. Goodman, would be available. The trial court denied the motion. Appellant claims abuse of discretion.
In reviewing this claim we are guided by the following standard: "The granting or denial of a motion for continuance in the midst of a trial traditionally rests within the sound discretion of the trial judge who must consider not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors, and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion. In the lack of a showing of an abuse of discretion or of prejudice to the defendant, a denial of his motion for a continuance cannot result in a reversal of a judgment of conviction." (People v. Laursen (1972) 8 Cal.3d 192, 204, 104 Cal.Rptr. 425, .)
We find no abuse of discretion. Before the continuance motion the trial court had admonished both attorneys "to have the witnesses here on time." Beyond this fact, the record is virtually non-existent. Whether or not at the time of the motion appellant identified his expert witness, described his qualifications, summarized his expected testimony, or indicated how this testimony was admissible is utterly conjectural.
The record fails to support appellant's claim.
4. Appellant contends the trial court committed Miranda error.
Appellant contends that admitting his post-custody, pre-advisement, statements and the assault weapon--constitute Miranda error.
As to his statements, the prosecutor offered none. It was during the defense that his trial counsel offered, over vigorous prosecutor objection, appellant's exculpatory hearsay statements. The trial court, which confused "spontaneous" in the sense of merely volunteered with "spontaneous" in the excited utterance sense used by Evidence Code section 1240, admitted the statements. This part of appellant's contention is without merit.
As to the gun, the argument fails for three reasons: (1) a public safety exception to Miranda applies (New York v. Quarles (1984) 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550.); (2) Although a gun was admitted during the prosecution's case, the prosecutor failed to link that gun to appellant. The prosecutor did not elicit appellant's extrajudicial statements concerning the gun nor have any of the four percipient witnesses attempt to identify it. It was only appellant, during his testimony, who provided the link; (3) Any error in admitting the gun was harmless by any standard because it was a "non-issue." The percipient witnesses testified to appellant owning a gun and using that gun to shoot the victim. Appellant admitted both facts.
DISPOSITION
The judgment is affirmed.
LILLIE, P.J., concurs.
JOHNSON, Associate Justice, concurring.
I concur in the judgment solely because the errors I perceive in the trial court proceedings and the rationale of the majority opinion were cured by the jury's "true" finding on the great bodily injury allegation. As the majority opinion points out (maj. opn. at pp. 139-140 fn. 8) in that finding the jury actually determined appellant harbored an "intent to commit battery" (and a fortiori, an "intent to attempt to commit battery").
I write separately, nevertheless, because of sharp differences with the rationale of the majority opinion. That opinion goes to great lengths to attempt to tell the California Supreme Court what it meant in its opinion in People v. Rocha (1971) 3 Cal.3d 893, 92 Cal.Rptr. 172, . Unfortunately, it does so by rejecting and attempting to explain away that portion of the Rocha opinion where the high court expressly said it was defining the requisite intent of the crime of assault. The words the Rocha court used in articulating that definition are straight forward: "Accordingly, the intent for an assault ... is the intent to attempt to commit a battery...." (Maj. opn. at p. 139, italics omitted, quoting People v. Rocha, supra, at p. 899, 92 Cal.Rptr. 172, .)
This is not the definition of assault the majority prefers. Accordingly, the majority attacks the Supreme Court's logic. Certainly, the Justices of our high court could not have meant what they said in defining the requisite mental element of assault, because their definition doesn't make sense. The majority even appears to question whether the high court justices who decided Rocha understood the meaning of the "intent or mental state or mens rea" of a crime. 1 According to the majority opinion, everyone knows all specific intent crimes couple present conduct with a future-looking state of mind and all general intent crimes couple present conduct with a present-looking state of mind. (Maj. opn. at p. 139.) The Supreme Court naively attempted in Rocha to couple assault with a state of mind which precedes rather than accompanies conduct. This, according to the majority, is a logical impossibility. Consequently, we are asked to treat the Supreme Court's definition as a nullity--or as a mere "bridge," a transitional sentence enroute to the "real" definition.
I find the majority's tricotomy amusing but neither accurate nor useful. One can have a present-looking rather than future-looking intent when committing certain specific intent crimes. (Attempted murder is a prime example where the present-looking and specific intent to murder is coupled with an act calculated to accomplish that intended goal.) Moreover, that state of mind need not first originate at the moment the act occurs; it can precede the actual act as well. (For instance, the intent to murder someone can exist for hours or days or weeks before the defendant is in a position to implement that intent with an act.) And, consistent with the Supreme Court and in contrast to the majority opinion in this case, it is possible while committing certain acts to be attempting to commit others. Whether one succeeds in those attempts is another question.
Accordingly, I conclude our high court meant what it said in Rocha--"the intent for an assault ... is the intent to attempt to commit a battery...." (People v. Rocha, supra, 3 Cal.3d 893, 899, 92 Cal.Rptr. 172, .) Among other things, this is the least culpable and least specific state of mind consistent with the statutory definition of the crime of assault which the Legislature enacted. As it has read since its original enactment in 1872, that definition says: "An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (Pen.Code, § 240.) Since it is impossible to attempt something which one does not intend to accomplish, at a minimum this crime requires an intent to attempt what the Legislature also defined 120 years ago as a "willful and unlawful use of force or violence upon the person of another." (Pen.Code, § 242, defining the crime of "battery.")
I am further persuaded the California Supreme Court indeed meant what it said in defining the intent element of assault as requiring an "intent to attempt a battery" by the fact the same court which decided Rocha used those same words and no other in defining that element a few months later. In People v. Parks (1971) 4 Cal.3d 955, 959, 95 Cal.Rptr. 193, , another assault case, Chief Justice Wright wrote: "Recently we held that only a general criminal intent, namely the intent to attempt to commit a battery, must be demonstrated to establish assault with a deadly weapon. (People v. Rocha, supra, 3 Cal.3d 893, 899 .)" (Italics added.) If the Supreme Court in Rocha only used this language as a transition to the "real" definition--as the majority opinion contends--is it not curious the same author and the same concurring justices only bothered to mention the transition and not the "real" definition in an opinion filed just a few months later.
I would feel compelled to dissent from the rationale of the majority opinion even if my only differences were those discussed above--the error I perceive in that opinion's interpretation of Rocha and the intent element of the crime of assault. But having concluded the required intent is the "intent to attempt to commit a battery," I also find the instruction the trial court gave in this case to be fatally defective.
I agree with the majority opinion that the first line of the questioned instruction was in error, but in different ways and with different consequences. That line, as will be recalled, was: "The requisite intent ... of an assault with a deadly weapon is the intent to commit battery." (Italics added.) The majority opinion finds this is an erroneous statement of the intent element. However, the majority, for all the reasons it recites and which I rejected above, would replace this line with nothing. In my view, consistent with Rocha and Parks the instruction is erroneous, but should be revised to read: "The requisite intent ... of an assault with a deadly weapon is the intent to attempt to commit a battery." (Italics added.) This is the proper statement of the state of mind which must accompany the act constituting the attempt. Accordingly, it remains an essential part of the instruction defining the crime.
After effectively striking the "intent to commit battery" sentence, the majority opinion strives to save the instruction by construing the remaining language as setting forth an alternate state of mind--indeed in the majority's view, the correct statement of the intent element. This despite the fact this language does not even purport to establish an alternate state of mind, but to set forth a conclusive presumption the erroneous "intent to commit battery" element is satisfied if the jury finds "an act inherently dangerous to others is committed with a conscious disregard of human life and safety." Even were it true the mental element of the crime of assault could be satisfied by either of two different states of mind, this would not be the way to do it. Rather, as is done with express malice and implied malice, and the like, the instruction would have to include two discrete definitions and explain the differences. The jury could only be confused and misled by an instruction which defined a required state of mind then said that state of mind is presumed if an act is committed which evidences a different state of mind.
But there is a more fundamental flaw with the majority's construction of this instruction than its lack of clarity and the resulting jury confusion. As the Supreme Court held in Rocha and Parks the crime of assault requires proof of one state of mind--the "intent to attempt to commit a battery." The jurors cannot be instructed they must "presume" the existence of this required state of mind from proof another act was committed while in a different state of mind without running afoul of Sandstrom v. Montana (1979) 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39. 2
This is not to say it would have been impossible in the instant case for a properly instructed jury to have legitimately inferred the defendant had an intent to attempt a battery when he committed the dangerous act of waving a gun in the face of another person. But those jurors were given a different and constitutionally infirm instruction. They were told the requisite intent is presumed. Once they concluded the act was dangerous they had no choice but to find the mental element was present. This is the sort of instruction the United States Supreme Court condemned in Sandstrom v. Montana, supra, 442 U.S. 510, 99 S.Ct. 2450.
For the reasons explained so well in Sandstrom, I would feel compelled to support reversal of appellant's conviction were these the only instructions and the only verdict bearing on appellant's state of mind. However, as noted at the beginning of this concurring opinion, the jury was given an opportunity to consider appellant's state of mind in connection with the great bodily injury enhancement. At that point the jury returned a finding appellant had an "intent to inflict [great bodily injury]" when he committed the assaultive act. This is a state of mind which subsumes the "intent to attempt to batter." As a consequence, I am able to concur in the judgment.
"1. An unlawful attempt was made to apply physical force upon the person of another,
"2. At the time of such attempt the person who made the attempt had the present ability to apply such physical force, and
"3. The person making the attempt had a general criminal intent, which, in this case, means that such person intended to commit an act, the direct natural and probable consequences of which if successfully completed would be the application of physical force upon the person of another.
"To constitute an assault, it is not necessary that any actual injury be inflicted. However, if an injury is inflicted it may be considered in connection with other evidence in determining whether an assault was committed and, if so, the nature of the assault."
" 'To constitute an assault with a deadly weapon, actual injury need not be caused. The characteristic and necessary elements of the offense are the unlawful attempt, with criminal intent, to commit a violent injury upon the person of another, the use of a deadly weapon in that attempt, and the then present ability to accomplish the injury. If an injury is inflicted, that fact may be considered by the jury, in connection with all the evidence, in determining the means used, manner in which the injury was inflicted, and the type of offense committed.' (CALJIC 604, 2d rev. ed. 1958.)" (Id. at p. 900, fn. 13, 92 Cal.Rptr. 172, .)
This finding would have rendered harmless any CALJIC No. 9.02 error, had there been any such error. (People v. Sedeno (1974) 10 Cal.3d 703, 715, 112 Cal.Rptr. 1, ; People v. Morse (1992) 2 Cal.App. 4th 620, 648-649, 3 Cal.Rptr.2d 343.)
We believe it useful for the concurring opinion to consider these simple questions:
(1) By holding assault to be a general, not a specific, intent crime what mental element did Rocha eliminate (if not "intent to batter")?
(2) If a general intent crime (assault) requires an intent to batter, what's the difference between a general and specific intent?
(3) How do you reconcile assault requires an intent to batter with Rocha's holding: "the intent ... to injure ... is not necessary."?
(4) How do you reconcile assault requires an intent to batter with the instruction given by the Rocha trial court, omitting intent to batter, and approved by Rocha?
Its errant sentence ("The requisite intent for the commission of an assault with a deadly weapon is the intent to commit battery.") in that Comment should be deleted as should the related last phrase in that paragraph ("and the intent to commit a battery is presumed.") (Id. at p. 439.)
CALJIC No. 9.00 could usefully provide an alternative to its present "[3 ...]" paragraph. We suggest the following: The person making the attempt had a general criminal intent, which, in this case, means that such person committed an act inherently dangerous to [another] [others] with a conscious disregard of human life and safety.
" 'Criminal negligence' refers to a negligent act which is aggravated, reckless and gross and which is such a departure from what would be the conduct of an ordinarily prudent, careful person under the same circumstances as to be contrary to a proper regard for human life danger to human life or to constitute indifference to the consequences of such acts. The facts must be such that the consequences of the negligent act could reasonably have been foreseen and it must appear that the danger to human life was not the result of inattention, mistaken judgment or misadventure but the natural and probable result of an aggravated, reckless or grossly negligent act."
In the facts of this case the jury could have concluded that pointing a gun--even one he was sure was unloaded--at another person is "inherently dangerous" and shows "a conscious disregard of human life." Yet doing so does not demonstrate the required intent--general or specific--to commit an act whose "direct, natural and probable consequences if successfully completed would be the injury to another." Indeed on most occasions where a person points what he or she believes to be an unloaded gun at another person no harm occurs. Consequently, injury is neither natural nor probable and "if successfully completed" this act in the vast majority of cases injures no one.
Yet as every parent properly tells every child--"Don't point an unloaded gun at anyone or anything you don't want to shoot." That admonition is given because pointing what you believe to be an unloaded weapon at someone is perceived to be "inherently dangerous" in the sense occasionally and tragically someone is injured or killed because the "unloaded" gun turns out to be loaded. The admonition is not given, however, because the "natural" and "probable" consequence of doing so is injury to the person at whom the weapon is aimed.
Under versions presented by some witnesses in this case all appellant did or intended to do was the act of pointing an unloaded gun at someone in order to frighten him. Other versions, of course, are consistent with the conclusion appellant deliberately fired the weapon at the victim--an act whose direct, natural and probable consequences would be injury to that victim. The problem is that under the instruction given the jury could have convicted appellant of assault under any of these versions and without finding he even had the general intent to commit an act which "naturally and probably" injures someone. As long as the jurors felt waving a gun in someone's face is "inherently dangerous" and no one told them it was not, they were to presume appellant harbored the requisite intent and was guilty of assault.