Opinion
Kelvin L. Taylor, Palo Alto, court-appointed, for appellant.
Thomas C. Lynch, Atty. Gen. of California, Robert R. Granucci, Jerome C. Utz, Deputy Attys. Gen., San Francisco, for respondent.
ELKINGTON, Associate Justice.
Defendant David Keith Hood was convicted by jury verdicts of assault on a peace officer with a deadly weapon (Pen.Code, § 245, subd. (b)) and assault with intent to commit murder (Pen.Code § 217). He was sentenced to state prison only on the latter charge, the judgment providing that "the sentence [on the Penal Code section 245, subdivision (b), violation) is withheld and will only be imposed if the sentence [on the section 217 violation] is not carried out for any reason." He appeals from the judgment.
We state the evidence as it tends to support the verdicts of the jury. "The test on appeal is whether there is substantial evidence to support the conclusion of the trier of fact." (People v. Dougherty, 40 Cal.2d 876, 885, 256 P.2d 911, 916.)
Defendant, his brother Donald, and another had been drinking heavily. Around 3 a.m. they went to the home of a friend, Susan Bueno. When Susan went to the door one of the men asked to use her bathroom. She told them to go away, whereupon defendant forced his way in, pulling the lock off the door. The others followed him in. Defendant started hitting Susan, kicking her and grabbing her by the throat; a neighbor, hearing screams, called the police.
Three police officers, responding to the call, went to the premises. Susan came running to the door; "she was crying real hard, hard to understand." When asked, "Who did it?" she pointed to the kitchen saying, "They're in there right now." She told Officer Alfred Elia that Dave had been hitting her and that she "wanted him out of the house and they wouldn't leave." Fearing trouble, she asked the officers not to go in the kitchen. The officers, however, went to the kitchen where they found defendant and his two companions.
The officers stated that they were there in response to a disturbing-the-peace complaint. Defendant first contends that there was insufficient evidence to support his conviction for violation of Penal Code section 245, subdivision (b). He insists that there was no evidence form which it could be determined that "he knew or reasonably should have known" that Officer Elia was engaged in the performance of his duties, because, he argues, he was never informed that he was being placed under arrest.
We find this contention to be wholly without merit. The officer was in police uniform, and defendant admitted knowing that he was a policeman. In his abusive language he described his victim as a "cop." We need not split hairs as to whether defendant was or was not being arrested. Accepting as true defendant's contention that he was never informed that he was being placed under arrest, the officer was nonetheless engaged in the performance of his duties in investigating a disturbance upon a complaint. Defendant had forcibly entered the house as a trespasser and had assaulted the occupant. The officer, in response to the complaint and with the permission of the occupant, lawfully entered the dwelling; he was authorized to complete his investigation, including a detention of the defendant for the purpose of making reasonable inquiries. (People v. Harris, 212 Cal.App.2d 845, 848-849, 28 Cal.Rptr. 458; People v. Anguiano, 198 Cal.App.2d 426, 429, 18 Cal.rptr. 132.) During such investigation the officer was in fact engaged in the performance of his duties, and the defendant was so advised.
Next, defendant asserts that the court erred in failing to instruct sua sponte that the jury might find him guilty of a violation of Penal Code section 245, subdivision (a) (assault with a deadly weapon generally, for which a lesser penalty is provided), an offense necessarily included within the offense proscribed by subdivision (b). The jury were instructed on assault with a deadly weapon on a peace officer and on simple assault, and were further instructed that the latter offense is a lesser offense included within the former. The jury were told that if they entertain a reasonable doubt as to which offense was committed, they must convict only of the lesser.
We find no error in these instructions. Here, without conflict, the evidence established that defendant knew Officer Elia to be a police officer engaged in the performance of his duties. Defendant's own testimony was that he had called the officer a "cop" and had demanded the production of a search warrant.
The only conflict in the evidence was as to the manner in which the scuffle was begun. The officer testified that he intended to place defendant under arrest, but as he began defendant "threw a punch" at him. Defendant testified that immediately after he had insulted the officer, the officer reached to grab him; believing that the officer was about to draw his service revolver, Consistent with this defense theory, appropriate instructions were given that defendant was privileged to use any reasonable force in self-defense if he were attacked, and that self-defense would constitute a complete defense to the crime charged.
Where, as here, the evidence shows that the defendant is guilty of the offense charged, or not at all, it is proper to exclude from the consideration of the jury any lesser offense. (People v. Thomas, 58 Cal.2d 121, 127, 23 Cal.Rptr. 161, 373 P.2d 97; People v. Morrison, 228 Cal.App.2d 707, 713, 39 Cal.Rptr. 874.) As indicated, there was no conflict in the evidence, and no issue raised, that defendant knew the officer to be investigating a complaint. The issue whether the officer had left the bounds of his duties to assault defendant in response to defendant's insulting remarks was for the jury. If defendant's testimony were to be believed, he was entitled to an acquittal, and not a conviction for the lesser offense proscribed by subdivision (a).
Although the officer testified that he intended to place defendant under arrest, both sides agree, for different reasons, that this was never communicated to defendant. Accordingly, any possible theory by the prosecution that defendant was resisting a lawful arrest was apparently abandoned, and no instructions were given the jury that he officer was attempting to make an arrest or that he would have been entitled to use reasonable force to effect the arrest. We note, however, that even if the case had been tried on the theory that the officer was attempting to effect an arrest, defendant's testimony, if believed, would have been complete defense, for the privilege of self-defense against excessive force applies whether an arrest is lawful or unlawful. (People v. Curtis, 70 A.C. 360, 369-370, 74 Cal.Rptr. 713, 450 P.2d 33.)
Defendant's final contention relates to the "intoxication" and "specific intent" instructions given by the court. As previously noted, there was substantial evidence that defendant was intoxicated at the time of the commission of the acts upon which the charges are based.
The charged offense of assault with intent to commit murder requires a specific intent to commit murder. the court properly instructed in the language of CALJIC (California Jury Instructions, Criminal) No. 78-B, as follows:
"In the time of assault with intent to commit murder of which the defendant, David Hood, is accused in count III of the indictment, a necessary element is the existence in the mind of the defendant of the specific intent to commit murder. [p] If the evidence shows that the defendant was intoxicated at the time of the alleged offense, the jury should consider his state of intoxication in determining if defendant had such specific intent."
Then, however, the court gave CALJIC Instruction No. 78 (Revised) which is designed to be given only in reference to crimes not involving a specific intent. This instruction follows:
"Our law provides that 'no act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition.' [p] This means that drunkenness, if the evidence shows that the defendant was in such a condition when allegedly he committed the [a] crime charged, is not of itself a defense in this case. It may throw light on the occurrence and aid you in determining what took place, but when a person in a state of intoxication, voluntarily produced by himself, commits a crime such as that [any of those] charged against the defendant to this case, the law does not permit him to use his own vice In People v. Graves, 263 A.C.A. 835, 842-845, 70 Cal.Rptr. 509, we held that it was error to instruct in the language of CALJIC No. 78 on a charge involving specific intent. We further held that the error was not cured by also giving the correct instruction, CALJIC No. 78-B. The holding of Graves is clearly applicable to defendant's conviction of assault with intent to commit murder. A remaining question is whether such error is prejudicial.
The record does not indicate whether or not the court used the parenthesized language.
As we have stated, there was substantial evidence of defendant's intoxication at the time of the events leading to the charges against him. Although there was clearly an intent to injure Office Elia, the jury could reasonably have found that the defendant entertained no intent to kill. Proper instructions on the relation of intoxication to the required specific intent may well have led to a different verdict on the assault with intent to commit murder charge. From our examination of the entire cause, including the evidence, we cannot say that the error was harmless. (See Cal.Const., art. VI, § 13; People v. Watson, 46 Cal.2d 818, 836, 299 P.2d 243.) The judgment as to the charge of assault with intent to commit murder (Pen.Code, § 217) accordingly must be reversed.
Defendant states that the second charge, assault upon a peace officer with a deadly weapon (Pen.Code, § 245, subd. (b)), is also a specific intent crime. He then insists, in relation to that charge, the failure to instruct on specific intent, and the confusing, intoxication instructions, also constitutes prejudicial error.
It has been held that an element of an assault with a deadly weapon is a specific intent to injure another. (See People v. Coffey, 67 Cal.2d 204, 221-222, 60 Cal.Rptr. 457, 430 P.2d 15.)
The jury here were instructed that "An assault is an unlawful attempt, coupled with a present ability to commit a violent injury on the person of another." This language, requiring for consummation of such a crime, an attempt to commit an injury on the person of another is the substantial equivalent of an instruction requiring a specific intent to injure another. There was no error in the trial court's failure to use the latter language. Furthermore, defendant readily admits the required specific intent to injure; he claims his attack on the officer was in self-defense, which contention was rejected by the jury. Accordingly, as the Penal Code section 245, subdivision (b), charge, there was no error in the specific intent instructions and no prejudice resulting from the court's conflicting charge on the effect of intoxication.
As we have previously noted, sentence was imposed only for the violation of Penal Code section 217, which is punishable by "not less than one nor more than fourteen years." The sentence for violation of Penal Code section 256, subdivision (b), which carries a greater penalty, "not exceeding fifteen years," was withheld, to be imposed only if the sentence for the former violation was not for any reason carried out. Although this is a proper procedure for complying with the provisions of Penal Code section 654 relating to multiple punishment (People v. Niles, 227 Cal.App.2d 749, 754-756, 39 Cal.Rptr. 11), and it was within the discretion of the trial court to sentence only for the lesser offense, defendant correctly points out that as a result of his appeal he may be subject to a greater penalty. Such a result would be contrary to the rule of People v. Ali, 66 Cal.2d 277, 281, 57 Cal.Rptr. 348, 424 P.2d 932, holding that a defendant may not be required to risk a greater punishment for the privilege of exercising his right of appeal. We hold, therefore, that if, upon further proceedings in the trial court, defendant is sentenced for the Penal Code section 245, subdivision (b), offense, his term of imprisonment may not exceed fourteen years.
The judgment of conviction of assault with intent to commit murder is reversed. MOLINARI, P.J., and SIMS, J., concur.