Opinion
Review Dismissed and Cause Remanded March 17, 1994.
Previously published at 18 Cal.App.4th 913
Marcia C. Levine, Truckee, By appointment of the Court of Appeal First District Appellate Project, for defendant/appellant.
Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Ronald S. Matthias, Supervising Deputy Atty. Gen., Jeremy Friedlander, Deputy Atty. Gen., Atty. General's Office, San Francisco, for plaintiff/respondent.
PETERSON, Presiding Justice.
In this case, we will hold that the doctrine of transferred intent is inapplicable to the crime of assault with a deadly weapon. We will conclude that CALJIC No. 9.10 does not inject the issue of transferred intent into such crime, and that CALJIC No. 9.10 is properly given in conjunction with CALJIC No. 9.00.
I. FACTUAL AND PROCEDURAL BACKGROUND
On August 31, 1991, near 1 p.m., Anthony Lee (appellant) got into an altercation with Jerry McCarter near the corner of Walnut Street and 102d Avenue in Oakland. After arguing a few moments, appellant left the scene briefly and then returned with a gun. Sensing danger, McCarter fled down 102d Avenue past a car which was pulling to the curb to park. As he did so, appellant fired three or four shots at McCarter. The first shot hit the ground; but a subsequent shot missed McCarter and struck the driver of the parking car, Ken Furtado, permanently paralyzing him.
Based on these facts, an information was filed and subsequently amended charging appellant with three counts: assault with a firearm against Furtado (PEN.CODE, § 245, subd. (a)(2)), being a felon in possession of a gun (§ 12021), and assault with a firearm against McCarter (§ 245, subd. (a)(2)). At his subsequent trial, appellant defended the charges claiming he had been identified mistakenly. The jury rejected this defense and convicted appellant of the offenses noted above. After the court sentenced appellant to 11 years in prison, he filed the present appeal.
All subsequent statutory references are to the Penal Code.
II. DISCUSSION
The prosecution's theory at trial was that appellant could be convicted of assaulting Furtado even though he intended to shoot McCarter. Accordingly, the prosecutor asked the court to instruct the jury with CALJIC No. 9.10. Defense counsel agreed the instruction was appropriate, so the court instructed the jury with CALJIC No. 9.10 as follows: "Where one attempts to assault a certain person with a firearm but by mistake or inadvertence assaults a different person, the crime, if any, so committed is the same as though the person originally intended to be assaulted had been assaulted."
Appellant now challenges his conviction claiming the instruction quoted above was improper. He claims CALJIC No. 9.10 describes the doctrine of transferred intent, and that transferred intent was inapplicable under the facts of this case. We reject this argument. While we agree that the doctrine of transferred intent is inapplicable to the crime of assault with a deadly weapon, the instruction appellant challenges does not inject that doctrine in such crime and was properly given.
We seriously question whether appellant has preserved the issue for purposes of appeal. Appellant agreed, in the court below, that the instruction he now challenges should be given, so he invited any "error" which may have occurred. While we need not decide the issue, it appears appellant is barred from raising the issue on appeal. (People v. Gallego (1990) 52 Cal.3d 115, 182-183, 276 Cal.Rptr. 679, 802 P.2d 169.)
We begin our analysis with People v. Rocha (1971) 3 Cal.3d 893, 899, 92 Cal.Rptr. 172, 479 P.2d 372 where our Supreme Court resolved what had been a hotly debated issue and ruled that assault with a The language from Rocha we have quoted clearly suggests that a defendant need not intend to apply force to any particular person to be guilty of an assault; and a number of courts have interpreted the crime in this way. For example, in People v. Martinez (1977) 75 Cal.App.3d 859, 142 Cal.Rptr. 515 the defendant threw a beer bottle toward a group of police officers who had gathered to disburse an angry crowd. The bottle struck one officer in the elbow and shattered, covering him with glass. The lower court dismissed an information charging the defendant with assault with a deadly weapon, and the appellate court reversed stating, "That [the defendant] may not have intended to strike [the officer] specifically is irrelevant (People v. Rocha, id. 3 Cal.3d at p. 899, 92 Cal.Rptr. 172, 479 P.2d 372) since it may be inferred from his conduct alone that he had the requisite general intent to commit an assault with a deadly weapon." (Id. at pp. 863-864, 92 Cal.Rptr. 172, 479 P.2d 372.)
Similarly, in People v. Bedolla (1979) 94 Cal.App.3d 1, 156 Cal.Rptr. 171, the defendant got into an altercation with two men at a store. When the men left the store, the defendant followed them on a motorcycle and fired two shots in their direction, one of which hit a patrol car occupied by a police officer. The defendant was convicted of assault with a deadly weapon, and the question on appeal was whether certain instructional error was harmless. The court concluded it was because the evidence overwhelmingly supported the charge. Whether the defendant intended to hit the men or the police car was irrelevant because, "The jury could not reasonably have reached any conclusion other than that [the defendant] had acted with a conscious disregard for human safety." (Id. at p. 7, 156 Cal.Rptr. 171; see also People v. Griggs (1989) 216 Cal.App.3d 734, 742-743, 265 Cal.Rptr. 53 [Defendant, who fired a shot into a crowd outside of a concert, was properly convicted of assault with a deadly weapon even though he was not aiming at any particular person.].)
From Rocha and the other cases cited above, we conclude that a defendant need not intend to apply force to any particular person to be guilty of an assault. The intent element is satisfied so long as "the direct, natural and probable consequences" (People v. Rocha, supra, 3 Cal.3d at p. 899, 92 Cal.Rptr. 172, 479 P.2d 372) of the defendant's act would be injury to some other person. The identity of that other person is irrelevant.
This conclusion has important consequences for crimes of assault with a deadly weapon. If a defendant need not intend to strike any particular person to be guilty of an assault, it follows that whether a defendant strikes his intended or an unintended victim is irrelevant. However, if it does not matter whether a defendant strikes his intended or an unintended victim, it also follows that the doctrine of transferred intent does not apply at all in an assault case. This is so because there is no specific intent to transfer. Accordingly, we conclude the principle of transferred intent is inapplicable to the crime of assault with a deadly weapon.
Prior to Rocha, several courts, including our Supreme Court, applied the doctrine of transferred intent to the crime of assault. (See, e.g., People v. Henderson (1949) 34 Cal.2d 340, 347, 209 P.2d 785; People v. Wells (1904) 145 Cal. 138, 140, 78 P. 470; People v. Ramirez (1923) 64 Cal.App. 358, 359-360, 221 P. 960.) Later Court of Appeal decisions, such as People v. Cotton (1980) 113 Cal.App.3d 294, 301, 169 Cal.Rptr. 814 and People v. Williams (1980) 102 Cal.App.3d 1018, 1026-1027, 162 Cal.Rptr. 748, have not considered the implications Having concluded that the principle of transferred intent is inapplicable to the crime of assault with a deadly weapon, we now must decide whether the instruction provided to the jury in this case was proper. Appellant claims it was not because the instruction describes the principle of transferred intent in an assault case. We do not read the instruction in that way. CALJIC No. 9.10 does not tell a jury that a defendant's intent to assault one person may be transferred to some other person. The instruction says nothing about transferring intent. Rather, read in conjunction with CALJIC No. 9.00, CALJIC No. 9.10 clarifies for the jury, in an understandable and concrete way, this principle: Defendant is not exculpated from criminal liability for assaulting an unintended victim if he intended to commit a successfully completed act (firing the gun), the direct, natural, and probable consequence of which applied physical force upon or injury to another. Put another way, the jury's focus is thereby properly removed from considering who the assailant intended to injure, to whether the assailant had the general criminal intent to commit the act producing the consequential injury on the victim. This statement of the law is entirely consistent with Rocha and its description of assault as a general intent crime.
CALJIC No. 9.00 defines the "intent" element of assault as follows: "The person making the [unlawful] attempt [to apply physical force upon the person of another must have] 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." (Brackets added.)
CALJIC No. 9.10, thus, simply addresses and negates what would otherwise be frequently asserted, particularly in shootings, as a defense in cases where an unintended victim is assaulted, i.e., that the defendant should be exonerated because he did not intend to assault the actual victim. The instruction forecloses this defense and reinforces CALJIC No. 9.00, defining the offense as a general intent crime. We conclude CALJIC No. 9.10 was properly given in this case.
III. DISPOSITION
The judgment is affirmed.
KING and HANING, JJ., concur.