People v. Colantuono

Page 908

26 Cal.Rptr.2d 908

7 Cal.4th 206, 865 P.2d 704

The PEOPLE, Plaintiff and Respondent, v. Vernon COLANTUONO, Defendant and Appellant.

No. S029545.

Supreme Court of California In Bank.

Jan. 31, 1994.

[7 Cal.4th 210] [865 P.2d 706] Joseph F. Walsh, Los Angeles, for defendant and appellant.

J. Robert Renner, Office of Atty. Gen., Los Angeles, for plaintiff and respondent.

ARABIAN, Justice.

In this case we determine whether the trial court properly instructed the jury on assault and assault with a deadly weapon (Pen.Code, §§ 240, 245). To do so, we again analyze the intent or mental state necessary to establish these offenses and "hopefully eliminate the confusion on this issue which has developed throughout the courts of this state." (People v. Rocha (1971) 3 Cal.3d 893, 896, 92 Cal.Rptr. 172, 479 P.2d 372 [Rocha].)

FACTS

The facts are brief but tragic: Early on the evening of November 17, 1990, four young men, all friends of appellant, were congregated on a neighborhood street corner talking and engaging in a certain amount of horseplay. Appellant approached the group and exchanged greetings. One of the young men, Gabriel Laguna, tried to draw appellant into a "play fight." When appellant declined, Laguna persisted and mildly taunted him. Appellant became somewhat irritated or angry and then drew a .357 magnum revolver from his waistband and pointed it at Laguna.

According to some of the witnesses, Laguna attempted to push the weapon away several times, but appellant continued to aim it at him. At this point appellant either said, "I'm going to shoot you," or Laguna asked, "Are you going to shoot me?" In any event, the gun discharged seconds later, shooting Laguna in the neck and totally paralyzing him. Appellant asked the victim "Did I shoot you?" or stated "I shot him" and then ran away. He later turned himself in to the police.

With slight discrepancies, the four percipient witnesses, including the victim, recounted the foregoing events at trial. Appellant took the stand in his own behalf and testified that when he approached his friends on the street corner, he was contemplating taking his own life later that evening. He did not know the gun was loaded, although he had bullets for it in his jacket pocket. Appellant claimed he did not intend to shoot the victim, and fired the weapon only accidentally as Laguna pushed it away. He armed himself for protection against gangs but never carried the gun loaded when he was out on the street. Numerous defense witnesses testified to appellant's character for nonviolence.

The trial court gave the standard instructions on assault and assault with a deadly weapon, ¹ with the following augmentation: "The requisite intent for the commission of an assault with a deadly weapon is the intent to commit a battery. Reckless conduct alone, does not constitute a sufficient basis for assault or for battery even if the assault results in an injury to another. However, when an act inherently dangerous to others is committed with a conscious disregard of human life and safety, the act transcends recklessness, and the intent to commit a battery is presumed." The jury found appellant guilty of assault with a deadly weapon (Pen.Code, § 245, subd. (a)(2)) and found true allegations that he intentionally inflicted great bodily injury (Pen.Code, § 12022.7) and personally used a firearm in the commission of the crime (Pen.Code, § 12022.5). The trial court sentenced appellant to a total of seven years in state prison but recommended housing him at the California Youth Authority.

On appeal, appellant contended the language cited above impermissibly relieved the prosecution of proving every element of the offense beyond a reasonable doubt because it created a mandatory presumption as to his intent. In a divided opinion, the Court of Appeal concluded the modification did not remove the question of intent from the jury's consideration. The court found that the instructions as a whole accurately stated the substance of the law and set forth the predicate facts that would establish assault with a deadly weapon, including the requisite mental state. We granted appellant's petition for review to resolve a developing conflict in decisions of the Courts of Appeal.

DISCUSSION

The portion of the instruction on assault with a deadly weapon in question appears in the Comments to CALJIC No. 9.02 (5th ed. 1988), which in turn cites People v. Lathus (1973) 35 Cal.App.3d 466, 470, 110 Cal.Rptr. 921 (Lathus), as its source. Appellant contends the supplemental language allowed the jury to presume his intent, thereby unconstitutionally relieving the prosecution of its burden of proof on that element. (Sandstrom v. Montana (1979) 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39; see People v. Burres (1980) 101 Cal.App.3d 341, 346-353, 161 Cal.Rptr. 593 [Burres].) The Attorney General responds that the instruction was proper because it simply defined those circumstances sufficient to establish the commission of an assault without the aid of an impermissible presumption. (Cf. People v. Dillon (1983) 34 Cal.3d 441, 474-476, 194 Cal.Rptr. 390, 668 P.2d 697 [felony-murder rule does not create presumption of malice but states rule of substantive law, which alternately defines first degree murder by eliminating necessity of proving malice].) As we explain, the answer lies somewhere in between, albeit closer to the position advocated by the Attorney General.

Deciphering the requisite intent for assault and assault with a deadly weapon has been a recurring task for this court. ² (See e.g., People v. McMakin (1856) 8 Cal. 547.) We last addressed the question in Rocha, supra, 3 Cal.3d 893, 92 Cal.Rptr. 172, 479 P.2d 372, having previously touched upon the subject in People v. Hood (1969) 1 Cal.3d 444, 82 Cal.Rptr. 618, 462 P.2d 370 (Hood ). The issue in Hood concerned whether to allow evidence of the defendant's intoxication as a defense. (1 Cal.3d at p. 458, 82 Cal.Rptr. 618, 462 P.2d 370.) Our analysis recognized that a conventional specific intent-general intent inquiry was inadequate to resolve the question directly: both definitions could apply equally depending upon the analytical perspective. (Id., 1 Cal.3d at pp. 456-458, 82 Cal.Rptr. 618, 462 P.2d 370.) We therefore resorted to "other [policy] considerations" in deciding that " 'an offense of this nature is not one which requires an intent that is susceptible to negation through a showing of voluntary intoxication,' " principally because it could lead to the anomalous result of "allow[ing such] evidence ... 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." (Id., 1 Cal.3d at p. 458, 82 Cal.Rptr. 618, 462 P.2d 370.) Thus, without definitively articulating the requisite mental state, our decision in Hood was consistent with the "[m]any cases" holding that neither offense is a specific intent crime. (Id., 1 Cal.3d at p. 452, 82 Cal.Rptr. 618, 462 P.2d 370.)

In Rocha, supra, we squarely confronted the issue and held, in accord with long-standing tradition as well as the legislative history of Penal Code section 245, that assault with a deadly weapon is a general intent crime. ³ (3 Cal.3d at p. 899, 92 Cal.Rptr. 172, 479 P.2d 372; see Hood, supra, 1 Cal.3d at p. 452, 82 Cal.Rptr. 618, 462 P.2d 370, and fn. 4.) To determine the precise nature of this intent, we began with the statutory definition of assault: "an unlawful attempt, coupled with the present ability, to commit a violent injury on the person of another, or in other words, it is an attempt to commit a battery. [Citations.] Accordingly 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 use of force or violence upon the person of another.' [Citation.] We conclude that the criminal intent which is required for assault with a deadly weapon ... 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. Given that intent it is immaterial whether or not the defendant intended to violate the law or knew that his conduct was unlawful. The intent to cause any particular injury [citation], to severely injure another, or to injure in the sense of inflicting bodily harm ⁿ⁴ is not necessary." (Rocha, supra, 3 Cal.3d at p. 899, 92 Cal.Rptr. 172, 479 P.2d 372; People v. Parks (1971) 4 Cal.3d 955, 959, 95 Cal.Rptr. 193, 485 P.2d 257, fns. omitted.)

From the foregoing we can distill the following principles concerning the mental state for assault: The mens rea is established upon proof the defendant willfully committed an act that by its nature will probably and directly result in injury to another, i.e., a battery. Although the defendant must intentionally engage in conduct that will likely produce injurious consequences, the prosecution need not prove a specific intent to inflict a particular harm. (Cf. Pen.Code, § 7, subd. 1 [" 'willfully,' when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act, or make the omission referred to"].) The evidence must only demonstrate that the defendant willfully or purposefully attempted a "violent injury" or "the least touching," i.e., "any wrongful act committed by means of physical force against the person of another." (People v. McCoy (1944) 25 Cal.2d 177, 191, 153 P.2d 315; see, ante, p. 913, of 26 Cal.Rptr.2d, p. 709, of 865 P.2d, fn. 4.) In other words, "[t]he use of the described force is what counts, not the intent with which same is employed." (People v. Finley (1963) 219 Cal.App.2d 330, 340, 33 Cal.Rptr. 31.) Because the offensive or dangerous character of the defendant's conduct, by virtue of its nature, contemplates such injury, a general criminal intent to commit the act suffices to establish...