COLANTUONO

(April 1994)

Note: All references to "FORECITE" refer to FORECITE California, authored by Thomas Lundy and available from James Publishing. Go to:http://jamespublishing.com/books/fc.htm

    Colantuono attempted to end the acknowledged confusion about the intent required for assault. But the opinion produced by the majority is full of opaque language, internal contradictions and other impediments to ready understanding. The resulting confusion is reflected in the fact that the two concurring opinions reached opposite conclusions as to what the majority opinion actually said.

    Nevertheless, the bottom line appears to be the following:

    Assault is a general intent crime. This requires an intent to commit a "violent act" rather than a specific intent or purpose to injure the victim. (But see separate opinions of Mosk and Kennard.) A violent act is one which is "likely" to result in a touching of the victim.

    The intent to commit a violent act must be willful. This requires that the perpetrator "be aware of the nature of the conduct and choose to ignore its potential for injury ...." (Colantuono 7 C4th at 220.) In other words, it must be "known" to the perpetrator that a battery is "substantially certain to result ...." (Perkins on Criminal Law(2d Ed.) Ch. 7, § 1, p. 747; Colantuono 7 C4th at 219.)

    The instructional implication of these conclusions is that the standard CALJIC instructions (9.00 - 9.02) correctly state the law and should not be embellished unless "compelled by the peculiar facts of the case." (Colantuono7 C4th at 221-22.) CJ 9.00 provides two means of committing an assault. One, an attempt to apply physical force; two, intentional commission of "an act, the direct, natural and probable consequences of which if successfully completed would be the application of physical force ...." The words "successfully completed" arguably convey the wilfulness (i.e., knowledge or awareness) element by requiring consideration of the likely consequences of the intended act. (Thus, intentionally attempting to fire a shot over the victim's head is not an assault -- even if the victim is accidently shot -- because if "successfully completed" the act would not have resulted in the application of physical force.

    Additional clarification of this knowledge/awareness element may be requested to pinpoint the defense theory (see 1 FORECITE Practice Guide § III) when the peculiar facts of the case raise such an issue.

    A. Intoxication and Assault. Colantuono reaffirmed that the mental state for assault may not be negated by intoxication (Colantuono 7 C4th at 213-14, fn 3; see also People v. Whitfield (94) 7 C4th 437, 449 [27 CR2d 858]; PC § 22.) However, if awareness or knowledge is an element of assault, there may be a federal constitutional argument that, notwithstanding PC § 22, the defendant should be allowed to negate such a mental element by any available evidence including intoxication.

    B. Nature of the Injury Required for Assault. Colantuono (7 C4th at 214, fn 4) reaffirmed the tortured statutory interpretation of violent injury to include injury to the victim's "feelings." However, the language of CJ 9.00 ("application of physical force") does not require jury consideration of the victim's feelings.

    In People v. Whitfield (94) 7 C4th 437 [27 CR2d 858], the California Supreme Court seemed to endorse the view that the distinction between specific and general intent crimes is merely a device to permit evidence of intoxication to reduce the crime to a lower degree but not to permit it to result in total acquittal. Consistent with this view is the following quotation from Fletcher, Rethinking Criminal Law (1978), p. 850, upon which the Whitfield court relied: "The distinction between specific and general intent facilitates a compromise between the rigors of denying the relevance of intoxication and allowing it to undercut all liability; in this respect the classification is functionally sound .... The distinction between general and specific intent is frequently litigated, for the simple reason that the courts tend to employ these terms as though they had a meaning beyond their function as devices for seeking a compromised verdict." (Whitfield at 451, fn 5.)

    This language suggests that in determining whether intoxication may negate a mental element, the analysis under PC § 22 should shift to whether or not disproof of the element will totally exonerate the defendant. How far the courts will actually digress from the traditional specific/general intent analysis remains to be seen.

    As set forth in the instructions defining implied malice and concurrence of act and intent, implied malice is shown when the defendant (1) has committed the requisite act[s] and (2) the act[s] [was] [were] accompanied with the requisite mental state. Here the prosecution is relying upon __________ [insert act or acts relied upon by the prosecution] as the requisite act[s]. However, even if you are satisfied beyond a reasonable doubt that the defendant committed the alleged act[s] and that the act[s] [was] [were] [dangerous to human life] [produced a high probability that death would result (see 2 FORECITE F 8.31a)], you may not rely upon any act[s] to find the existence of malice unless the defendant possessed the requisite mental state when the act[s] [was] [were] committed.

    Specifically, you may not rely upon an act to find the existence of malice if, as a result of intoxication [and/or mental defect, etc. (see 2 FORECITE F 4.21 Note #8)] [and/or physical trauma (see 2 FORECITE F 3.32)]:

    1. Defendant was unconscious when the act[s] [was] [were] committed; or,

    2. Even if not unconscious, defendant did not possess the required mental state when the act[s] [was] [were] committed.

    If you have a reasonable doubt as to whether the requisite mental state for malice has been proven, you must give the defendant the benefit of that doubt and find [him] [her] guilty of involuntary manslaughter rather than murder.

Points and Authorities

    In People v. Whitfield (94) 7 C4th 437 [27 CR2d 858], the Supreme Court held that PC § 22 does not preclude the use of intoxication evidence to negate implied malice. The basis for this conclusion is that the element of implied malice which requires that the defendant act with knowledge of the danger to, and in conscious disregard of, human life, is closely akin to specific intent. Thus, read in context, the phrase "when a specific crime is charged" in PC § 22 includes murder, even where the prosection relies exclusively upon the theory that malice is implied, rather than expressed. Additionally, this interpretation of the statutory language is consistent with the purpose of PC § 22(b) which is to permit evidence of intoxication to reduce the crime to a lower degree, but not to admit such evidence if it would result in total acquittal. Allowing a defendant charged with murder to introduce evidence of voluntary intoxication to demonstrate the absence of malice would not result in an acquittal, but in reduction of the offense to involuntary or vehicular manslaughter. Thus, PC § 22 is not intended to preclude consideration of evidence of voluntary intoxication on the issue of implied malice.

    Nevertheless, the court held that CJ 8.47 was properly refused in Whitfieldbecause it "erroneously implied that, if defendant was unconscious when the collision occurred, he could not be convicted of murder." Hence, to comport with Whitfield, CJ 8.47 -- at least in second degree drunk driving murder cases in which the determination of implied malice does not depend exclusively upon the defendant's state of mind at the time the accident occurs -- should be modified.

    It is important to note that even though Whitfield observed that the defendant need not have the requisite mental state at the time of the accident, the statutory requirement that there be a concurrence of act and intent requires proof of a specific act or acts which were committed with the requisite mental state. (PC § 20; see also 2 FORECITE F 3.31.5.)

    Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution's burden of proof thereon violates the defendant's state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, 1 FORECITE Practice Guide § VII.]

    NOTES: For express malice cases, use 2 FORECITE F 8.47a. For cases involving both express and implied malice, 2 FORECITE F 8.47a and 2 FORECITE F 8.47b should be given or combined.

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