Adventures in the Wonderland of Specific Intent

(April 1993)

    There are a number of crimes whose statutory definitions implicitly contain specific intent elements but which are treated as general intent crimes by CALJIC and the courts. The failure to instruct upon the specific intent element and require a jury verdict thereon in such crimes violates federal due process. This article addresses four statutes where specific intent instructions ought to be given but are generally not. First, however, to put this problem in context, the principles applicable to a determination of general and specific intent will be briefly discussed.

    The terms "specific" and "general" intent have been notoriously difficult to define and apply. (See People v. Hood (1969) 1 C3d 444, 456 [82 CR 618]; People v. Daniels (1975) 14 C3d 857, 860 [122 CR 872]. The terms have been "employed in more than one sense, thereby causing confusion. . ." (Daniels 14 C3d at 860) and a number of text writers have recommended that the terms be abandoned altogether. (See texts cited in Daniels and Hood.) Nevertheless, the distinction between specific and general intent continues to be important for three reasons. First, if the crime requires a specific intent, the jury must be instructed upon that intent since it is an element of the offense. Second, in specific intent crimes special instruction upon circumstantial evidence may be required. (See CALJIC 2.02.) Third, specific intent may be negated by intoxication and mental impairment while general intent may not. (See PC § 22 and § 28.)

    The process of determining whether a crime entails general or specific intent should start with an examination of the statutory language. General intent crimes proscribe particular acts. For such crimes, reference is not made to any intent to accomplish some further act or achieve some further consequence. (Hood1 C3d at 456; People v. Lopez (86) 188 CA3d 592, 598 [233 CR 207].) Where the definition includes the defendant's intent to accomplish a further act or achieve an additional consequence, the crime is one of specific intent. (Ibid.)

    The words willfully, knowingly, and maliciously are usually expressions of general criminal intent when used in a penal statute. (PC § 7, subd. 1; People v. Williams (1980) 102 CA3d 1018, 1025-29 [162 CR 748].) However, this broad rule of statutory construction has not been consistently applied, and there are specific intent crimes, such as perjury (PC § 118) and lewd and lascivious conduct (PC § 288), which use the term willfully. (See People v. Viniegra(1982) 130 CA3d 577, 584 [181 CR 848]; People v. Worthington (1974) 38 CA3d 359, 368 [113 CR 322].)

    In People v. Alvarado (91) 232 CA3d 501, 505 [283 CR 479] and People v. Ricardi (90) 221 CA3d 249, 256 [270 CR 425] the courts held that murder is a specific intent crime even when based on implied malice. The Alvarado court stated, "malice may be established by showing the specific intent to commit an act from which malice may be implied. [citations.]" (Alvarado 232 CA3d at 505.) Ricardi concluded that implied malice murder is a specific intent crime for purposes of mensrea negation by intoxication. (Ricardi 221 CA3d at 256.)

    In Whitfield the court disagreed with Alvarado and Ricardi, concluding that implied malice murder is not a specific intent crime and only requires a general intent to commit an act together with the mental state of knowledge and conscious disregard of the risk to human life. Hence, Whitfieldcreates a conflict with Ricardi both on the question of whether implied malice requires specific intent and whether mental defect/intoxication may negate implied malice.

    However, even if Whitfield's interpretation is technically correct, it fails to address the defendant's 14th Amendment due process right to present evidence upon and have the jury determine any issue which negates a mental element of the charge. (See People v. Bobo (90) 229 CA3d 1417, 1442 [271 CR 277]: legislature cannot deny defendant opportunity to disprove requisite mental state.) Since Whitfield concedes that knowledge and awareness of the risks are mental elements of implied malice, it would be a fundamental due process violation to preclude the defendant from presenting evidence tending to negate these elements. It would also violate due process to preclude the defendant from obtaining jury instructions upon these issues. (See e.g., People v. Saille (91) 54 C3d 1103, 1120 [2 CR2d 364]; U.S. v. Sotello-Murillo(9th Cir. 1989) 887 F2d 176].)

    Assault is defined by statute as "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another. (PC § 240.) Because an attempt to commit a crime requires "a specific intent to commit the crime" (1 Witkin and Epstein, Calif. (Law 2d Ed.) Sections 143-152; see also CALJIC 6.00) it would seem logical, if not compelling, that assault requires a specific intent to commit a violent injury upon another. However, the case law has not taken such a logical approach to this question.

    In People v. Hood (1969) 1 C3d 444 [82 CR 618], the court discussed the questions of specific and general intent at length and concluded that "whatever reality the distinction between specific and general intent may have in other contexts, the difference is chimerical in the case of assault with a deadly weapon or simple assault . . . the definitions of both specific intent and general intent cover the requisite intent to commit a battery. . . ." (Hood1 C3d at 458.) [Hood went on to conclude that intoxication could not negate the requisite intent for assault as a matter of public policy. (Ibid.)]

    In People v. Rocha (1971) 3 C3d 893 [92 CR 172] the defendant argued that assault is a specific intent crime and the jury must be instructed upon that specific intent as an element of the offense. Despite Hood'sconclusion that there is no meaningful distinction between specific and general intent in the context of assault, the Supreme Court purported to resolve the issue anyway. Predictably, such an endeavor created a confusing decision.

    The Rocha court initially concluded that an assault is "an attempt to commit a battery." (Rocha 3 C3d at 899.) Hence, the court stated that "the intent for an assault with a deadly weapon is the intent to attempt to commit a battery, a battery being `any wilful and unlawful use of force or violence upon the person of another.'" (Ibid.) However, the court went on to conclude that the criminal intent which is required for assault "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." (Ibid.)

    Rocha compounds the confusion because characterizing assault as purely a general intent crime removes any consideration of the defendant's motive. And, many cases (including Rocha) recognize that, because assault requires an intent to apply physical force (e.g., Hood 1 C3d at 458), the defendant's asserted motive is relevant to a determination of guilt or innocence. (People v. Garcia (1984) 159 CA3d 781, 789 [205 CR 722]; see also Rocha 3 C3d at 898, fn 5.) Hence, a conviction of assault may not be grounded upon an intent to frighten (People v. Wolcott (1983) 34 C3d 92, 99 [192 CR 748]) or upon mere recklessness. (People v. Brown (1989) 212 CA3d 1409, 1419 [261 CR 262]). (See also People v. Carmen (1951) 36 C2d 768, 775-776: disapproving cases which held that mere reckless conduct alone can constitute assault.) When the evidence supports such a theory, the defendant has the right, upon request, to an instruction which explains this to the jury and which requires the prosecution to prove the intent to apply physical force beyond a reasonable doubt. (Garcia 159 CA3d at 787.) "Thus a person who recklessly exhibits a weapon in a threatening manner which accidentally discharges injuring another does not commit an assault with a deadly weapon, but would be guilty of [brandishing (PC § 417)]." (Rocha 3 C3d at 898 fn. 5.) [Note: Brandishing (PC § 417) is not a lesser included offense of ADW (PC § 245) (People v. Escarcega (1974) 43 CA3d 391, 396 [117 CR 591]) but presumably under appropriate circumstances would be a lesser related offense.]

    The California Supreme Court will again address the intent necessary for assault in People v. Colantuono REV GTD (12/3/92) (S029545) 9 CA4th 116 [12 CR2d 134]. In Colantuono the majority opinion concluded that assault does not require an attempt to commit a battery. The majority construed Rochato merely require the commission of an act inherently dangerous to others with a conscious disregard of human life and safety. This holding conflicted with two other Court of Appeal decisions (People v. Lathus (1973) 35 CA3d 466, 471 [110 CR 921] and People v. Burres (1980) 101 CA3d 341 [161 CR 593]) which held that Rocha requires an intent to commit a battery. Moreover, as set forth by the dissent in Colantuono, the majority opinion also conflicts with Rocha and People v. Parks (1971) 4 C3d 955, 959 [95 CR 193] each of which stated that assault with a deadly weapon requires "the intent to attempt to commit a battery." Additionally, the majority in Colantuonofailed to discuss the express holdings in Rocha, Carmen and Garciathat a person who recklessly, or with mere intent to frighten, exhibits a weapon in a threatening manner does not commit an assault with a deadly weapon.

    In sum, under the express language of the statute, the defendant should be permitted to offer evidence and obtain a jury instruction that the presentation must prove an intent to "commit a violent injury on the person of another." (PC § 240.) Moreover, the defendant, under the 14th Amendment federal due process principles, should be able to offer evidence to negate said intent, including evidence of intoxication, to obtain a jury instruction pinpointing this evidence to the intent element of the charge. (See e.g., People v. Saille (91) 54 C3d 1103, 1120 [2 CR2d 364].)

    "A person is guilty of arson when he or she wilfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels, or procures the burning of, any structure, forest land, or property. (PC § 451.) Felony arson is divided into the following four categories, each of which carries different prison term limits: 1) arson that causes great bodily injury (§ 451(a)); 2) arson that causes an inhabited structure or inhabited property to burn (§ 451(b)); 3) arson of a structure or forest land (§ 451(c)); 4) arson of property (§ 451(d)). On the other hand, if the fire is "recklessly" set, the crime is misdemeanor arson (PC § 452).

    A common sense interpretation of these statutes would require an intent to burn a structure, forest land, or property for felony arson. For example, in People v. Tanner (1979) 95 CA3d 948, 956 [157 CR 465] the court held that it was error to instruct the jury that the intent with which the act is committed is immaterial to guilt. "The effect of the instruction was to remove from the jury the question of the existence of a critical element of the offense of arson--the general intent to set fire to a building." (Ibid; see also In re Stonewall F. (1989) 208 CA3d 1054, 1062-1068 [256 CR 578]: reckless burning of a structure is misdemeanor arson (§ 452) not felony arson (§ 451); People v. Swartz (1992) 2 CA4th 1319, 1324-25 [3 CR2d 816]: burning of a car within a garage with no intent to burn the structure does not give rise to arson liability for burning an inhabited structure even though the structure did burn.)

    The intent necessary for conviction of arson under § 451 was recently addressed in People v. Lopez (1993) 13 CA4th 1840, 1845-46 [17 CR2d 317]. Lopez relied upon People v. Glover (1991) 233 CA3d 1476 [285 CR 362] to conclude that to violate PC § 451(b), the defendant need only have the general intent to start a fire and need not have any intent to burn a structure. However, in light of the discussion above, Lopez andGlover should not be read to require only a general intent to start a fire which burned a structure. Regardless of whether it is characterized as general or specific intent, § 451 unquestionably requires that the defendant intended to burn the structure, property or forest land which was burned. CALJIC 14.80 fails to convey this requirement to the jury and should be modified to do so.

    While it has been held that to be armed with a firearm (PC § 12022) the defendant must possess it "with the intent to use the weapon as a means of offense or defense" (People v. Hays 147 CA3d at 545 [citing People v. Pheaster (63) 215 CA2d 756, 30 CR 363]; see also CALJIC 17.15), no case has directly considered whether "use" of a firearm (PC § 12022.5) requires specific intent. The CALJIC instruction (CJ 17.19) makes no reference to specific intent and defines use of a firearm as follows: "The term `used a firearm,' as used in this instruction, means to display a firearm in a menacing manner, intentionally to fire it, or intentionally to strike or hit a human being with it." While this instruction has been held to be a correct statement of the law (see e.g., People v. Reaves (74) 42 CA3d 852, 857 [117 CR 163]), this is not dispositive of the specific intent issue because that issue has not been expressly addressed and cases are not authority for propositions not considered. (People v. Dillon (1983) 34 C3d 441, 473-74 [194 CR 390].)

    The intent required by § 12022.5 hinges upon the meaning of the term "used." In People v. Chambers (1972) 7 C3d 666 [102 CR 776], the court observed that "the use of a firearm connotes something more than a bare potential for use, there need not be conduct which actually produces harm but only conduct which produces a fear of harm or force by means or display of a firearm in aiding the commission of one of the specified felonies. `Use' means, among other things, `to carry out a purpose or action by means of,' to `make instrumental to an end or process,' and to `apply to advantage.' [Citation.]" [Emphasis added] (Id. at 672.) This definition suggests that use of a firearm involves specific intent because the firearm must be used "to carry out the purpose" of "aiding the commission of one of the specified felonies."

    Such a construction is also consistent with other interpretations of the term "use." For example, People v. Southack (1952) 39 C2d 578 held that the display of a firearm did not necessarily constitute a use upon the victim in light of evidence from which it could have been found that the defendant's only intent was to protect himself should the victim attempt an unlawful entry of the defendant's home. (Southack 39 C2d at 591; see alsoChambers 7 C3d at 673.) [Southack interpreted PC § 1203 which Chambersheld to be consistent with § 12022.5. (Chambers 7 C3d at 674.)]

    In People v. Hays (83) 147 CA3d 534 [195 CR 252], the court found insufficient evidence for use of a firearm where the defendant simply displayed a firearm by wearing it without making any statements or otherwise indicating that the gun was being used for the purpose of creating fear in order to facilitate the commission of the offense. It is obvious that the insufficiency was not in the evidence of the actus reus (i.e. the passive display) but rather as to the mens rea. For example, if Hayshad accompanied the very same passive display with a threat to use the weapon to achieve his criminal purpose or if Hays had confessed that he wore the gun for the purpose of frightening the victims into compliance, then the means rea element of the offense would have been satisfied.

    In People v. Fierro (1991) 1 C4th 173, 226-27 [3 CR2d 426] the court, in considering whether a gun use enhancement may be founded upon acts committed after the crime, held that "the jury could reasonably have inferred that defendant used the gun against the murder victim to facilitate his escape or to prevent his identification as the robber of [the victim]." [Emphasis added.] (Fierro 1 C4th at 227; see also People v. Johnson (74) 38 CA3d 1, 12 [112 CR 834]: "A weapon is used . . . when it is pointed at a victim to enforce a demand." [Emphasis added.].)

    In sum, the display of a firearm is not the "use" of a firearm unless it was displayed for the purpose of aiding the commission of the offense. Thus, since the term "use" includes an intent to achieve a further purpose, § 12022.5 requires a specific intent upon which the jury should be instructed and which may be negated by intoxication or mental impairment. [Consistent with this interpretation, the court in People v. Walker(1988) 47 C3d 605, 634 [253 CR 863] noted without comment that the court instructed upon the concurrence of act and specific intent with reference to the firearm use enhancement.]

RETURN TO TABLE OF CONTENTS