Opinion
Rehearing Denied June 16, 1970.
Opinion on pages 909 to 921 omitted
HEARING GRANTED
See 3 Cal.3d 893 for resulting opinion.
For Opinion on Hearing, see 92 Cal.Rptr. 172, 479 P.2d 372.
Neil A. Helding, Hanford, under appointment by the Court of Appeal, for defendant and appellant.
Thomas C. Lynch, Atty. Gen., Charles P. Just and Joel S. Primes, Deputy Attys. [86 Cal.Rptr. 838]Gen., Sacramento, for plaintiff and respondent.
OPINION
STONE, Presiding Justice.
Defendant appeals from a judgment entered pursuant to a jury verdict finding him guilty of assault with a deadly weapon in violation of Penal Code, section 245.
On the night of March 17, 1968, defendant and Pete Aguilar got into an argument in a bar in the City of Hanford, and mutually agreed to go behind the building and settle their differences. As they were leaving, the back door apparently swung against one of them and a scuffle ensued, during which defendant inflicted three knife wounds upon Aguilar; the knife blade penetrated the abdominal wall and pierced his liver, his finger was cut, and his elbow was cut to the bone.
Defendant denied that he intended to assault Aguilar with the knife. He testified that, in fact, it was Aguilar who drew the knife, but dropped it, and as defendant kneeled and picked it up the victim kicked at him and was wounded.
Defendant does not challenge the sufficiency of the evidence but he does raise serious questions of law. His principal point is that the trial judge improperly instructed the jury on the requisite intent to commit assault with a deadly weapon, and on the effect of intoxication upon his ability to form such intent. The judge refused defendant's proffered instructions defining assault with a deadly weapon as a crime requiring specific intent. On this issue, the court instructed the jury that assault with a deadly weapon is a general-intent crime, or in substance, that a person who intentionally does that which the law declares to be a crime is acting with criminal intent.
1] People v. Hood, 1 Cal.3d 444, 82 Cal.Rptr. 618, 462 P.2d 370, which came down after the case before us was tried, discusses in some detail general and specific intent in relation to assault cases. However, Hood is primarily concerned with whether evdence of intoxication can be considered in determining the intent with which a defendant commits the act charged as an assault. The Supreme Court recognized there are two lines of cases in California, one holding that assault is a specific intent crime, the other that it is a general intent crime (p. 455, 82 Cal.Rptr. 618, 462 P.2d 370) but it did not eliminate the dichotomy by approving one line of cases or the other; rather, the court synthesized general and specific intent in assault cases in the framework of a single question, whether to give effect to evidence of intoxication. The court said:
'* * * 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. Since the definitions of both specific intent and general intent cover the requisite intent to commit a battery, the decision whether or not to give effect to evidence of intoxication must rest on other considerations,' (P. 458, 82 Cal.Rptr. at 626, 462 P.2d at 378.)
The other considerations the court found persuasive were expostulated as follows:
'* * * a drunk man is capable of forming an intent to do something simple, such as strike another, unless he is so drunk that he has reached the stage of unconsciousness. What he is not as capable as a sober man of doing is exercising judgment about the social consequences of his acts or controlling his impulses toward anti-social acts. He is more likely to act rashly and impulsively and to be susceptible to passion and anger. It would therefore be anomalous to allow evidence of intoxication to relieve a man of responsibility for the crimes of assault with a deadly weapon or simple assault, which are so frequently committed in just such a manner.' (P. 458, 82 Cal.Rptr. at 627, 462 P.2d at 379.)
In light of Hood, we believe the trial court properly refused to give defendant's proffered instruction that the jury should [86 Cal.Rptr. 839]consider the effect of intoxication upon his capability to form the intent to commit the assault. But this does not answer the vexing question whether the trial court erred in giving the jury an instruction on general intent and refusing defendant's proffered instruction that assault with a deadly weapon requires a specific intent.
Not only do we have two lines of cases relative to whether section 245 is a specific intent or a general intent crime, but legal writers and commentators interpret the purport of Hood differently insofar as intent is concerned. For example, Mr. Witkin, a renowned legal authority and author of textbooks on California law, seems to find in the Hood dicta, an implication that Penal Code, section 245 is a general intent crime, for he says, in California Crimes, 1969 Supplement, pages 88-89:
'In People v. Hood, supra, the court reexamined the question, reviewed the authorities and pointed out that the distinction between specific intent and general intent crimes evolved as a judicial response to the problem of the intoxicated offender. (1 Cal.3d 455, [82 Cal.Rptr. 618, 462 P.2d 370.]) The conclusion reached was that neither assault nor assault with a deadly weapon should be regarded as specific intent crimes: * * *'
The Committee on Standard Jury Instructions, Criminal, in the 1970 edition of CALJIC came to the opposite conclusion. Their instruction 9.03 'Assault With a Deadly Weapon' reads in part:
'The necessary elements of the offense are the unlawful attempt with the specific intent to commit a violent injury upon the person of another by the use of a deadly weapon in that attempt. * * *'
To add to the confusion, the CALJIC Committee cited People v. Hood, supra, apparently as authority for their position that violation of Penal Code, section 245 is a specific intent crime.
An analysis of the many assault cases indicates that the courts holding assault with a deadly weapon to be a general intent crime have been concerned with the fact that certain acts are inherently dangerous to life and limb, and that a person of ordinary prudence knows or ought to know that if he commits such an act, for example, striking with an ax, the result will be injury or death. Therefore an intent to commit the act itself manifests an intent to injure or kill. On the other hand, those courts holding assault with a deadly weapon to be a specific intent crime have been concerned with acts (see People v. Marceaux, 3 Cal.App.3d 613, 83 Cal.Rptr. 798), where there has been no battery and the gravamen of the assault under section 245 rests upon a defendant's potentiality to commit bodily harm.
In Marceaux, the defendant pointed a loaded and cocked rifle at a person he deemed to be an intruder, but testified that he never intended to pull the trigger, that his intention was to frighten the victim. The court concluded that under these facts the jury must be instructed that specific intent to implement such potentiality is an element of the crime. The Supreme Court, in denying a hearing in Marceaux, approved, sub silentio, the requirement of an instruction on specific intent, at least in cases of like character to Marceaux, where there has been no battery.
This brings us to the point that there is an implication in Marceaux that perhaps only general intent is required where there has been a battery, otherwise instructions on specific intent are required. Such a bifurcated approach to the question of intent in assault cases not only would complicate the giving of instructions at the trial level, but it would not provide uniform treatment of defendants in section 245 cases. A man working in his garden might tap a persistently meddlesome neighbor youngster on the seat of his pants with his garden trowel, without even getting off his knees. Certainly he would have no more intent to injure than the gun-pointer in Marceaux, yet under the 'battery--intent' theory the general intent to swat the youngster would be sufficient to find the man guilty of assault [86 Cal.Rptr. 840]with a deadly weapon since a garden trowel could well be defined as a deadly weapon under Penal Code, section 245. Thus, under the battery-general intent theory, we would have the anomalous situation of a defendant pointing a loaded and cocked gun being entitled, under Marceaux, to an instruction on specific intent, while the petulant gardener who committed a battery would have to stand trial on a general intent instruction.
The difficulty in defining intent in section 245 cases arises from the broad scope of the section. Each element of the crime, (a) the act, (b) the weapon or means employed, and (c) the potential to do harm, is open to an endless variety of circumstances. Facts falling within the section run the gamut from a vicious hacking with an ax, at one extreme, to an innocent paddling with a trowel, at the other, and in between the non-battery, threatening stance while pointing a potentially dangerous weapon. In view of the broad spectrum of situations conceivably within the ambit of section 245, a bifurcated intent rule, determined objectively in case of a battery and subjectively absent a battery, does not appear to be the answer. The intent, to commit an assault with a deadly weapon, of the gardener swatting the neighbor youngster on the seat of his pants is just as subjective, despite the battery, as is that of the defendant in Marceaux who pointed a loaded rifle but committed no battery. And, strictly construed, the gardener, who obviously had the general intent to commit a battery, would be, under the general intent rule, guilty of violating Penal Code, section 245 even though he had no intent to commit an assault with a deadly weapon.
2] It seems to us that when attention is focused on proof of intent, rather than the kind of intent required, no insurmountable problem arises. By holding that specific intent is an element in every violation of section 245, we do no violence to the reasoning that general intent to commit an act of violence supplies the necessary intent, because intent may be inferred from the act and the circumstances surrounding its commission. For example, it would seem quite impossible to infer that one striking another with an ax had any intent other than specifically to injure, from the very nature of the act itself. This, in sum, is what those who argue that a section 245 assault is a general intent crime are saying. On the other hand, pointing but not firing a loaded gun does not in and of itself support an inference of an intent to injure; it takes something more than the act of pointing a gun to supply the specific intent to assault with a deadly weapon. (People v. Marceaux, supra.)
In short, the nature of the act in a Penal Code, section 245 assault should be addressed to proof of the elements of the crime, including specific intent, and not preliminarily to serve as a standard for determining whether a jury should be instructed on specific or general intent.
3] A word must be said about People v. Gaines, 247 Cal.App.2d 141, 55 Cal.Rptr. 283, and People v. Morrow, 268 Cal.App.2d 939, 74 Cal.Rptr. 551, cited in the dissent, in which this court held that assault with a deadly weapon is a general intent crime. Subsequent to the filing of these cases, the Supreme Court denied a hearing in People v. Marceaux, supra, 3 Cal.App.3d 613, 83 Cal.Rptr. 798, thereby placing its imprimatur upon the holding that an instruction on specific intent is required in assault with deadly weapon cases falling within the ambit of Marceaux.
Under the rationale of Auto Equity Sales, Inc. v. Superior Court, 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937, we deem ourselves bound by the Supreme Court's approval of Marceaux, which is an implicit disapproval of the Gaines and Morrow holdings that all assaults with a deadly weapon are general intent crimes.
As to the Court of Appeals opinion in People v. Seals, 276 A.C.A. 213, 80 Cal.Rptr. 710, cited in the dissent, an opinion that relied to a large extent upon legislative intent, as does the dissent, we refrain [86 Cal.Rptr. 841]from commenting since the Supreme Court granted a hearing in Seals, thus superseding the Court of Appeal opinion with its own. Interestingly enough, Seals was disposed of by the Supreme Court in a Memorandum Opinion based upon People v. Hood, supra, 1 Cal.3d 444, 82 Cal.Rptr. 618, 462 P.2d 370. Consequently we have looked to Hood and Marceaux as reflecting the latest developments in the area of intent in cases of assault with a deadly weapon. (See also People v. Spence, 3 Cal.App.3d 599, 83 Cal.Rptr. 711.)
4] We conclude that the reasonable and fair solution to the present uncertainty as to requisite intent is to hold, and we do hold, that specific intent is an element of the crime of assault with a deadly weapon as defined in Penal Code, section 245, an intent that may be proved circumstantially from the act itself and from the surrounding circumstances. Viewing this conclusion in the light of reversible error, we look to the facts of the case before us.
5] The record reflects that after deliberating some seven hours the jury returned to the courtroom and the foreman told the court:
'The jury would like to clarify more definitely on the charge with assault with a deadly weapon, how much intent has to be shown on the part of the defendant. Also, what constitutes the lesser offense of assault. Can we have that clarified?'
The trial judge reread the instructions defining a section 245 assault as a general intent crime. Forty minutes later the jury returned a guilty verdict. Since the jury obviously was troubled over the question of intent, the erroneous instruction on this subject requires a reversal.
We turn to defendant's contention that the district attorney committed prejudicial misconduct by asking, 'Isn't it also a fact, Mr. Rocha, that you smoked a marijuana cigarette in back of the Capitol Bar * * *' Defense counsel objected immediately, and the propriety of the question was argued outside the presence of the jury. The district attorney advised the court he was attempting to impeach defendant's credibility by showing that he was under the influence of marijuana at the time of the occurrence, so that his ability to perceive the events was distorted and his ability to recollect them was impaired. The trial court ruled the question was improper, but denied defendant's motion for a mistrial.
, 7] Even though the question was merely asked, and not answered, several questions arise. The first is whether the trial court properly sustained the objection. We believe so, for, unlike the use of alcohol, the effect of marijuana is not well enough established to be accepted as common knowledge. A witness can be impeached by a showing that he was under the influence of alcohol at a time relevant to his testimony, and no expert need testify as to whether alcohol affects the cerebral process; impeachment upon the ground a witness was under the influence of marijuana requires not only proof of use at a relevant time but it requires expert testimony as to the effect of such use. (People v. Smith, 4 Cal.App.3d 403, 411-412, 84 Cal.Rptr. 412; People v. Ortega, 2 Cal.App.3d 884, 900, 83 Cal.Rptr. 260; People v. Buono, 191 Cal.App.2d 203, 12 Cal.Rptr. 604.) When the trial judge asked for an offer of proof, the district attorney related the substance of testimony by two witnesses that defendant had smoked marijuana prior to the knifing, but nothing in the way of expert testimony as to the effect such smoking might have upon a witness's ability to perceive events and recall them. Accordingly, the trial court properly sustained the objection.
8] Defendant also charges that the district attorney acted in bad faith in asking the question. There appears to have been no intentional misconduct of a prejudicial nature. The district attorney's good faith is evidenced by the argument he made to the court at the time, strongly urging that impeachment by proof of marijuana [86 Cal.Rptr. 842]used parallels the procedure when impeachment is by proof of use of alcohol.
Finally, any prejudice emanating from the question was overcome by defense counsel's prompt objection, which prevented the witness from answering, and by the court's admonition to the jury, at defendant's request, to disregard the question. The court said:
'Ladies and Gentlemen of the Jury, just before you left the courtroom for the recess, a question was asked of the defendant as to whether or not he had been smoking marijuana that day or I believe something to that effect--would yon read the question please, Mr. Reporter? * * *
'There was an objection to this question, and the Court has made a ruling in the absence of the jury and the Court is now going to--the Court has sustained that objection that the witness shall not answer the question and you are to disregard the question, forget that it was even asked and do not conjecture as to what the answer may or may not have been.'
We believe the admonition cured any prejudice; certainly we cannot assume the jury disregarded the judge's instructions. (People v. Cannedy, 270 Cal.App.2d 669, 678-679, 76 Cal.Rptr. 24; People v. Ney, 238 Cal.App.2d 785, 801, 48 Cal.Rptr. 265; People v. Robles, 207 Cal.App.2d 891, 897, 24 Cal.Rptr. 708.)
By reason of error in instructions, the judgment is reversed.
GARGANO, J., concurs.
COAKLEY, Associate Justice (dissenting).
I dissent. My colleague has written another lucid and persuasive opinion on a difficult question concerning which much confusion has recently developed. The majority opinion states that there are 'two lines of cases in California, one holding that assault is a specific intent crime, the other that it is a general intent crime.' The opinion then adopts that 'line of cases' holding that assault is a specific intent crime. The 'line,' if indeed it is a line, is very short in comparison with the truly long line of cases holding that assault is a general intent crime. Thus, the Supreme Court in People v. Hood, 1 Cal.3d 444, 452, 82 Cal.Rptr. 618, 622, 462 P.2d 370, 374, said:
'Many cases have held that neither assault with a deadly weapon nor simple assault is a specific intent crime.'
This is followed by a fine print annotation covering more than haif a page citing cases in support of the quoted statement. The court then noted that judicial doubt as to whether an assault with a deadly weapon is a specific intent crime is of fairly recent origin. The court observed also that the cases which it cites as having given rise to such doubt did not directly hold that assault or assault with a deadly weapon is a specific intent crime. It then noted the opinion of this court in People v. Morrow, 268 Cal.App.2d 939, 74 Cal.Rptr. 551, which expressly held that assault with a deadly weapon does not require proof of specific intent to harm the victim, noting, specifically, that '[t]he Morrow court reviewed many of the earlier cases and decided that such an overwhelming line of authority could not be considered overruled merely by implication from Carmen, [36 Cal.2d 768, 228 P.2d 281,] Wilson, [261 A.C.A. 1, 67 Cal.Rptr. 678,] and Coffey [67 Cal.2d 204, 60 Cal.Rptr. 457, 430 P.2d 15.]' I find nothing in Hood declaring that Morrow and the long line of cases relied on in Morrow should be overruled.
The fact is that the 'line' of cases to which the majority refer, and which hold directly that an assault with a deadly weapon is a specific intent crime, are People v. Fanning, 265 Cal.App.2d 729, 71 Cal.Rptr. 641, and People v. Marceaux, 3 Cal.App.3d 613, 83 Cal.Rptr. 798. Fanning is of doubtful authority for the twofold reason that (1) the Supreme Court in Hood expressly disapproved the holding in Fanning with respect to the defendant's in [86 Cal.Rptr. 843]toxication, and, therefore, in my judgment, cast doubt on the related subject in Fanning, viz., specific intent; and (2) in People v. Seals,276 A.C.A. 213, 80 Cal.Rptr. 710, the Court of Appeal, Second Appellate District, which authored Fanning, expressly retreated from its holding in Fanning and held that a "violation of section 245, subdivision (a), of the Penal Code may be treated as a general intent crime." This then leaves Marceaux as the sole authority in the "line" of cases holding that assault with a deadly weapon is a specific intent crime and that the jury msut be so instructed.
The Supreme Court granted a hearing in Seals. Thereafter, in People v. Seals, 1 Cal.3d 574, 82 Cal.Rptr. 873, 462 P.2d 993, the judgment was affirmed, the Supreme Court relying on its decision in Hoodi.%1
Examination of People v. Marceaux, supra, discloses that the court's conclusion was arrived at solely upon the basis of Fanning and its interpretation of Hood. As pointed out, Fanning can no longer be considered as authority on the issue of specific intent with relation to assault with a deadly weapon. And, in the opinion of my colleagues, Hood "did not eliminate the dichotomy."
Mr. Witkin believes the question was settled in Hood, stating that "[t]he conclusion reached [in Hood] was that neither assault nor assault with a deadly weapon should be regarded as specific intent crimes." (Witkin, California Crimes (1969 Supp.) § 264, pp. 88-89.) While Hood is not as clear on the subject as we wish it were, nevertheless I am inclined to concur in Mr. Witkin's interpretation of Hood. Certainly, that interpretation in Marceaux and in the majority opinion herein.
Turning to the legislative history of Penal Code, section 245, which courts may and should examine if in doubt as to the purpose of a statute (14 Cal.Jur.2d, Criminal Law, § 105, p. 312), I find:
In 1850, the Legislature adopted "An Act Concerning Crimes and Punishment." Section 50 thereof dealt with various crimes against the person. With respect to assault with a deadly weapon that section provided:
'* * * An assault with a deadly weapon, instrument, or other thing, with an intent to inflict upon the person of another a bodily injury, where no considerable provocation appears, or where the circumstances of the assault show an abandoned and malignant heart shall subject the offender to imprisonment * * *.'
Section 50 was amended in 1855, but without change as to an assault with a deadly weapon.
When the Penal Code was adopted in 1872, assault with a deadly weapon was assigned its own section number, viz., 245. The element of specific intent was retained in these words: 'Every person who, with intent to do bodily harm * * *.'
However, in 1873-1874, Penal Code, section 245 was amended in the form in which it now appears, the amendment omitting all reference to intent.
From this history, the conclusion to me, at least, seems inescapable that, after due consideration, the Legislature determined that henceforth the crime of assault with a deadly weapon required proof of general intent, only. Thus has Penal Code, section 245 been construed for almost 100 years, presumably with the knowledge and approval of the Legislature. For the courts, now, to read into the statute words which were removed by solemn act of the Legislature is judicial legislation in its most repugnant form. It may be well, therefore, to remind ourselves of the role and limitations of the courts in construing statutes where no countervailing constitutional provision or statute is involved. None is involved in this case. Because the applicable [86 Cal.Rptr. 844]rules of construction are academic no extensive citation of authority is necessary.
See People v. Hood, supra, 1 Cal.3d page 452, 82 Cal.Rptr. 618, 462 P.2d 370, footnote 4, for collection of cases construing Penal Code, sections 240 and 245.
'In the construction of a statute or instrument, the office of the Judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or omit what has been inserted; * * *' (Code Civ.Proc. § 1858; see 45 Cal.Jur.2d, Statutes, § 103, pp. 617-618.)
'The power to define criminal offenses and to prescribe the applicable punishments rests exclusively and entirely with the legislature, subject to limitations of the federal and state constitutions. * * *' (14 Cal.Jur.2d, Criminal Law, § 107, p. 314.)
As noted, no constitutional question is involved in this case. The issue was solely one of legislative intent.
'The courts are not concerned with the wisdom, motive, or policy behind a legislative enactment. These are primarily legislative matters. The court's power is confined to a determination of whether the subject of the legislation is within the subject of the legislation is within the legislative power and whether the means adopted by the legislature to accomplish the desired result are reasonably appropriate to that purpose and have a substantial relation thereto. The fact that the court may not agree with the wisdom of the enactment or that it doubts its beneficial character does not justify the ignoring of plain and unambiguous language.' (45 Cal.Jur.2d, Statutes, § 106, p. 620.)
Because of what I believe to be the true legislative intent of Penal Code, section 245, and because, as noted supra, I believe that the majority has been misled by a nonexistent 'line of cases,' I would follow the prior decisions of this court in People v. Morrow, supra, 268 Cal.App.2d 939, 74 Cal.Rptr. 551, and People v. Gaines, 247 Cal.App.2d 141, 55 Cal.Rptr. 283, and the many precedents cited in the court's footnote in Hood, 1 Cal.3d at pages 452-453, 82 Cal.Rptr. 618, 462 P.2d 370, and hold that proof of specific intent is not required in the prosecution of assault with a deadly weapon, and, therefore, that no instruction to that effect is required.
Finally, in reversing in spite of conclusive evidence of guilt, my colleaguse have overlooked the constitutional mandate that '[n]o judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury * * * unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.' (Cal.Const. art. VI, § 13; People v. Watson, 46 Cal.2d 818, 299 P.2d 243.)
For all the reasons stated I would affirm the judgment.