CALJIC 9.00 Improperly Allows Conviction of Assault Based on Negligence

    Element 1 of CJ 9.00 provides that an assault is committed by "an act which by its nature would probably and directly result in the application of physical force on another person." This improperly permits conviction of assault based on mere negligence. Therefore, the instruction should be modified to provide language such as the following:

    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" (PC 21a (1986); 1 Witkin and Epstein, Calif. Law(2d Ed.) §§ 143-52; see also CJ 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 (69) 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 ...." (Hood, 1 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 (71) 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. Hence, despite Hood's conclusion 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 willful and unlawful 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 willfully commit an act the direct, natural and probable consequences of which if successfully completed would be the injury to another." (Ibid.)

    Rocha compounded 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(84) 159 CA3d 781, 789 [205 CR 722].) Hence, a conviction of assault may not be grounded upon an intent to frighten (People v. Wolcott (83) 34 C3d 92, 99 [192 CR 748]) or upon mere recklessness. (People v. Brown (89) 212 CA3d 1409, 1419 [261 CR 262].) 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 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 (74) 43 CA3d 391, 396 [117 CR 595]) but presumably under appropriate circumstances would be a lesser related offense].)

    In People v. Colantuono (94) 7 C4th 206, 215 [26 CR2d 908], the Supreme Court 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.

    However, when considered in context with the preceding case law and the statutory language, Colantuono is consistent with the logical conclusion that assault requires either (1) an intent to forcibly and unlawfully touch another person or (2) the commission of an intentional act which the defendant knew was substantially certain to result in a forcible and unlawful touching. (See People v. Smith (97) 57 CA4th 1470, 1487-88 [67 CR2d 604].)

    As to the first alternative, the Colantuono majority adhered to the view that it is "technically accurate" that assault requires an "`intent to cause [some] injury to another person.'" (Colantuono, 7 C4th at 217.) The majority cites as explaining a "critical analytical point" the portion of footnote 12 in Rocha, 3 C3d at 899-900, which states that an intent to touch is requisite of assault. However, the Colantuono majority also concluded that the doing of an act inherently dangerous to others with conscious disregard of human life and safety is equivalent to an assault. (Colantuono, 7 C4th at 219.)

    The critical step in this reasoning process is the assumption that the "inherent danger" of the defendant's act is such that the harmful consequence of the act (i.e., unlawful touching) is "known to be substantially certain to result." (Colantuono, 7 C4th at 219-20; People v. Smith, supra, 57 CA4th at 1485.)

    The CALJIC definition of assault fails to incorporate the foregoing principles. The version of CJ 9.00 adopted in response to Colantuono eliminated any reference to an attempt to apply physical force and replaced it with a requirement that the person "willfully commit an act that by its nature would probably and directly result in the application of physical force." This instructional language is apparently adopted from footnote 10 of Colantuono (7 C4th at 218-19.) However, the language in this footnote was not intended to be a legal definition of assault. Rather the court was merely pointing out that even when the defendant has presented evidence that he or she did not intend to injure the victim the jury may still find the required mental state "from the totality of the circumstances" of a violent act.

    Hence, CJ 9.00 fails to properly define assault because it includes neither the intent to forcibly and unlawfully touch the victim nor the alternative intent to commit an act from which it is "known" to the perpetrator that a battery is "substantially certain to result ...." (Perkins on Criminal Law (3rd Ed.) Ch. 7, § 1, p. 835; Colantuono, 7 C4th at 219.) Moreover, the CJ 9.00 terminology is nothing more than another way of expressing the natural and probable consequence concept which was contained in the prior CJ instruction. As discussed above, such a concept is grounded in negligence and, hence, is an incorrect definition of the required intent for assault under PC 240. (Smith, supra, 57 CA4th at 1484.)

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