Opinion
Robert T. Bertholdo, Chatsworth, under appoinment by the Court of Appeal, for defendant and appellant.
Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Bruce M. Perlman, Deputy Atty. Gen., for plaintiff and respondent.
AISO, Associate Justice.
Charged with assaults by means of force likely to produce great bodily injury in violation of section 245, subdivision (a), of the Penal Code upon his landlady (count I) and upon a fellow boarder (count II), defendant pleaded 'Not Guilty' and 'not Guilty by Reason of Insanity' to the charges. He duly waived a jury trial and submitted all issues on the transcript of the preliminary hearing and the reports of three psychiatrists (two court-appointed, one privately retained) filed with the court. The court found him guilty on both counts and sane both at the time of trial and when he committed the offenses. Following a Penal Code, section 1203.03 diagnostic commitment and report, the court denied probation and sentenced defendant to the state prison. Defendant appeals from the 'judgment and sentence.' (Pen.Code, § 1237, subd. 1.)
References to section '245' or '245, subdivision (a)' are to the Penal Code, unless otherwise indicated.
Sentence to state prison on each count was ordered to run concurrent to each other and concurrent to another sentence also then pronounced upon an earlier conviction for illegal possession of marijuana, on which defendant was on probation until the conviction in this case. While not compelled to do so by Penal Code, section 654, because there were two victims (People v. Ridley (1965) 63 Cal.2d 671, 678, 47 Cal.Rptr. 796, 408 P.2d 124), the trial court stayed exceution of sentence on count II pending appeal, if any, on count I, and if judgment thereon 'is affirmed and becomes final, the stay of execution of sentence as to Count 2 shall become permanent.'
I.
Since the appeal presents a question of law, the facts will be adumbrated only briefly. Defendant was a tenant of a rooming (boarding) house owned and managed by Mrs. Patricia Hogan, the victim named in count I. Mrs. Hogan was 69 years old and weighed around 225 pounds. Peter Larson, the victim named in count II, was another boarder, an 84-year-old invalid who used a cane to walk about and who weighed 169 pounds. At the times in question, defendant was 29 years old, stood six feet three or four inches tall, and weighed 200-240 pounds.
On Saturday evening, May 7, 1966, around 8 p. m., Mrs. Hogan noticed defendant drinking wine as he watched television. Shortly before 9 p. m., she further observed him wander into Larson's room (located on the first floor at the foot of the stairway), fall on Larson's bed, and thereafter make his way to his room upstairs. Mrs. Hogan went to defendant'room about 15 minutes later, because he was 'falling on the floor and making noises' and told him to stop drinking or move out.
Thereupon, defendant proceeded to attack her, yanking her by her hair, knocking her to the floor several times with his closed fists, with such force as to momentarily render her unconscious at one point, and kicking her and twisting her leg while she was on the floor. To her entreaty to stop hitting her, he replied, 'No, I won't stop hitting you. I am going to kill you.' Larson, hearing Mrs. Hogan's cries, came upstairs and hit defendant on the head with his cane in order to cause defendant to cease twisting Mrs. Hogan's leg. Disregarding Mrs. Hogan's plea that defendant not hit Larson because he was 84 years old, defendant landed blows with his fists closed, in the area of Larson's cheeks and eyes, causing Larson to sink to his knees. As Larson sought to retreat downstairs, defendant pursued him. Picking up 7 or 8 large heavy milk cans of the type used to deliver milk to restaurants, which had been placed for decorative purposes on the stairway, he pitched them at Larson striking him 6 or 7 times variously on Larson's head, leg, and back.
Two of these were 5-gallon cans, about 3 feet high. The others were 2-gallon cans, about 2 feet high. They had steel bands around them. Mrs. Hogan's daughter had decorated them so that they could be used for ornamental purposes.
Both victims required medical treatment; Larson was hospitalized for nearly a week.
II.
The gravamen of the defense was that defendant was not aware of what he was doing due to 'temporary insanity' caused by voluntary intoxication. While conceding that defendant's acts constituted batteries, his trial counsel vigorously disputed the prosecution's theory that an assault by means of force likely to produce great bodily injury is a general intent crime. He strenuously urged that defendant did not have the capacity to entertain the intent requisite to the aggravated assaults in question.
Relevant to this issue, the three psychiatrists had reported the following as their respective opinions:
The trial court did not make an express ruling, but impliedly treated the crimes as general intent crimes, which appellate Posed, therefore, is whether an assault by means of force likely to produce great bodily injury is a specific intent crime to which diminished capacity caused by voluntary intoxication must be entertained as a possible defense. Under SECTION 22 OF THE PENAL CODE, even unconsciousness caused by voluntary intoxication would not constitute a defense if an assault is a general intent crime. (People v. Conley (1966) 64 Cal.2d 310, 324, 49 Cal.Rptr. 815, 411 P.2d 911.)
The following remarks epitomize the trial court's treatment of the issue: 'I think in interpreting the laws you have to weigh the realities of the situation. You have to weigh the interests of the general security against, or protect against unprovoked and unjustified assaults. [p] Now, I don't see how you can get any kind of a fancy theory in here and deprive the public of this kind of protection, particularly aged people who are virtually defenseless. * * * [p] I don't see how you can do this on the basis of any kind of a rationale or use of some newfangled or psychological theory. I just don't feel that this is adequate protection of the people, and I think it is time that it is halted.'
Penal Code, section 22: 'No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition. But whenever the actual existence of any particular purpose, motive, or intent is a necessary element to constitute any particular species or degree of crime, the jury may take into consideration the fact that the accused was intoxicated at the time, in determining the purpose, motive, or intent with which he committed the act.' (Italics added.)
III.
We meet with at least apparent confusion in the authorities. In People v. Sanchez (1950) 35 Cal.2d 522, 219 P.2d 9, a case involving the intoxication issue and where the evidence showed a completed battery, the court said: '[T]he charge of assault with a deadly weapon is sustained by uncontradicted evidence showing not merely an assault in the technical sense (Pen.Code, § 240) but an actual battery (Pen.Code, § 242) with a weapon and by means of force unmistakably coming within the purview of section 245 of the Penal Code. Under these circumstances no proof of specific intent was essential to sustain the conviction * * *.' (Emphasis added to last sentence; 'assault' italicized in original.)
Since the legal principles involved apply equally to assaults 'with a deadly weapon or instrument' and 'by means of force likely to produce great bodily injury,' the authorities dealing with both types will be cited interchangeably. When a distinction is intended, the abbreviations 'ADW' and 'ASS/GBI' will be employed.
Is the last sentence quoted to be restricted to the problem of proof as distinguished from an essential element of the substantive crime? Sanchez did not elaborate.
Concerning an assault by means of force likely to produce great bodily injury, the learned Mr. Witkin explicates: 'The following significant aspects of the offense should be noted: (a) No specific intent is required. (See People v. Schmidt [(1944) 66 Cal.App.2d 253, 256 [152 P.2d 1021]].) (b) No weapon or instrument is required * * * the criminal force quite often consists of blows of the fist, kicks, or other acts without use of any weapon. [Citations.] (c) The victim usually is seriously injured, but this is not a necessary element of the crime.' (1 Witkin, Cal. Crimes (1963) p. 255; fn. 8 added.)
See also: People v. Finley (1963) 219 Cal.App.2d 330, 340, 33 Cal.Rptr. 31, cert. denied, 377 U.S. 912, 84 S.Ct. 1174, 12 L.Ed.2d 181 (ASS/GBI); People v. Gordan (1894) 103 Cal. 568, 575, 37 P. 534; People v. Marseiler (1886) 70 Cal. 98, 100, 11 P. 503; People v. Gaines (1966) 247 Cal.App.2d 141, 148, 55 Cal.Rptr. 283; People v. Swansboro (1962) 200 Cal.App.2d 831, 837, 19 Cal.Rptr. 527; People v. Laya (1954) 123 Cal.App.2d 7, 15, 266 P.2d 157.
However, People v. Wilson (1967) 66 Cal.2d 749, 765, 59 Cal.Rptr. 156, 427 P.2d 820 impliedly holds that something more than a general criminal intent is required for a violation of section 245, subdivision (a). The statement in People v. Carmen (1951) 36 Cal.2d 768, 775 ,228 P.2d 281, 286, that '[o]ne could not very well 'attempt' or try to 'commit' an injury on the person of another if he had no intent to cause any injury to such other person' has been considered by some commentators as having placed California among the jurisdictions requiring a specific intent for an aggravated assault. (See 92 A.L.R.2d, p. 643.) In People v. Fanning (1968) 265 Cal.App.2d People v. Morrow
IV.
Section 245, subdivision (a), in part pertinent here provides: 'Every person who commits an assault upon the person of another with a deadly weapon or instrument or by any means of force likely to produce great bodily injury is punishable * * *.'
As noted by the court in People v. Corlett (1944) 67 Cal.App.2d 33, 54-55, 153 P.2d 595, 605, '[t]he intention to actually injure another is not mentioned in that section .' This is not an inadvertent omission. As enacted in 1872, section 245 read: 'Every person who, with intent to do bodily harm, and without just cause or excuse, or when no considerable provocation appears, or when the circumstances show an abandoned and malignant heart, commits an assault upon the person of another with a deadly weapon, instrument, or other thing, is punishable by imprisonment in the State Prison not exceeding two years, or by fine not exceeding five thousand dollars, or by both.' (Italics added.) Under a statute so worded, whether the accused acted 'with intent to do great bodily harm to a person' constituted the 'very gravamen of the offense.' (People v. Keefer (1861) 18 Cal. 636,638.)
This enactment was based on the Crimes and Punishment Act, section 50 (Stats. 1850, c. 99, § 50, p. 234), as amended by Statutes 1855, chapter 82, section 2, page 106. (In re Shull (1944) 23 Cal.2d 745, 749, 146 P.2d 417; Deering's Cal.Codes, Pen.Code, § 245, Legislative History.)
An 1873-74 amendment deleted the provisions pertaining to intent, provocation, and malice or wantonness, and substituted the word 'or' for the comma following the words, 'deadly weapon,' and the words, 'by any means of force likely to produce great bodily injury' in lieu of 'other thing.' In People v. Turner (1884) 65 Cal. 540, 542, 4 P. 553, 554, the court rejected a defense contention that the amendment did not change the essential elements of the crime. The court said: 'We think that the amendment has worked a material change in the section, and that, as it now stands, it is unnecessary to charge in the indictment, or for the jury to find, that the assault was made with a deadly weapon. It is sufficient to follow the language of the statute in charging the offense, and, by parity of reasoning, it is sufficient for the jury to find in the language of the charge.'
(West's Anno.Cal.Codes, Pen.Code, § 245, Historical Note; Deering's op. cit., supra.)
Thus the legal history provides support for the line of cases holding that a violation of section 245, subdivision (a), does not require an intent to severely injure the victim; or to injure the victim or another where the context indicates that the word 'injure' is used in the sense of inflicting physical or bodily 'injury'; or an intent to commit the offense (aggravat ed
E. g., cases dealing with ASS/GBI: People v. Finley (1963) supra, 219 Cal.App.2d 330, 340, 33 Cal.Rptr. 31; People v. Pullins (1950) 95 Cal.App.2d 902, 904, 214 P.2d 436; People v. Schmidt (1944) supra, 66 Cal.App.2d 253, 256, 152 P.2d 1021; People v. Bumbaugh (1941) 48 Cal.App.2d 791, 796-797, 120 P.2d 703. With ADW: People v. Herd (1963) 220 Cal.App.2d 847, 850, 34 Cal.Rptr. 141.
E. g., People v. McCoy (1944) 25 Cal.2d 177, 194, 153 P.2d 315; People v. Sandoval (1963) 222 Cal.App.2d 348, 351, 35 Cal.Rptr. 227; People v. Walker (1950) 99 Cal.App.2d 238, 242, 221 P.2d 287; People v. Stephens (1959) 168 Cal.App.2d 557, 558, 336 P.2d 221; People v. Corlett (1944) supra, 67 Cal.App.2d 33, 54, 153 P.2d 595, 964; People v. Lim Dum Dong (1938) 26 Cal.App.2d 135, 140, 78 P.2d 1026.
E. g., People v. Corlett, supra; People v. Herd, supra.
An assault is an attempt to commit a battery, and as we shall explain below the code definition of assault (Pen.Code, § 240) does not in substance provide otherwise. It is then syllogized '[s]ince an assault is an attempt, the rules generally applicable to the law of attempts apply to cases of simple assault and also to felonious assaults' (Fricke-Alarcon, Cal.Crim.Law (9th ed. 1965) p. 185), and since an attempt requires a specific intent to commit a crime (e. g., People v. Camodeca (1959) 52 Cal.2d 142, 145, 338 P.2d 903; People v. Gallardo (1953) 41 Cal.2d 57, 66, 257 P.2d 29), an 'assault is a specific intent crime' (People v. Fanning (1968) supra, 265 Cal.App.2d 729, 734, 71 Cal.Rptr. 641). It has been held that '[t]o constitute an assault there must be a specific intent to commit a battery.' (People v. Corson (1963) 221 Cal.App.2d 579, 581, 34 Cal.Rptr. 584, 586 [citing 1 Witkin, Cal.Crimes, Assault, § 256, p. 242].) The difficulty is that these authorities do not inform us as to the nature and intrinsic quality of the state of mind characterized by the conceptual terminology, 'a specific intent to commit a battery.' Is it a state of mind ponderably different from the intent adequate to constitute the completed crime, which itself is a general intent crime?
1 Witkin, Cal. Crimes (1963) ksupra, p. 241; 5 Cal.Jur.2d Rev., Assault and Battery, supra, p. 310. At common law an assault, as an offense distinguished from a tort, was an attempt to commit a battery. (See Perkins, An Analysis of Assault and Attempts to Assault (1962) 47 Minn.L.Rev. 71 et seq.)
See infra page 715 et seq.
'In order to make out an assault, it is necessary to establish the ordinary requirements of an attempt to commit a crime, and, hence, a specific intent to commit a battery is usually required. 'Any attempt to create a battery is an assault.' When dealing with the criminal assault, as was the case when dealing with the attempt, it is imperative that a specific intent be proven.' (Baker, Criminal Law: Criminal Assaults: Mens Rea (1961) 14 Okla.L.Rev. 44, 52.)
First, a clarification of some of the words used in sections 240 and 242 of the Penal Code, defining the inchoate crime of assault and the completed crime of battery, is in order. 'An assault is an unlawful attempt, An assault at common law and an assault as defined in our Penal Code are essentially the same. (People v. Yslas (1865) 27 Cal. 630, 633.) The terminology of section 240 itself can be traced to 1 East, Pleas of the Crown (1803) 406. (Perkins, An Analysis of Assault and Attempts to Assault (1962) supra, 47 Minn.L.Rev. 71, 78.) 'Present ability' as used in section 240 means merely the ability to commit a battery and not the aggravated offense. (Perkins, Criminal Attempt and Related Problems (1955) 2 U.C.L.A.L.Rev. 319, 345.)
'The words 'volence' in P.C. 242 and 'violent' in P.C. 240 * * * have no real significance. It has long been established, both in tort and criminal law, that the 'least touching' may constitute battery. In other words force against the person is enough; it need not be violent or severe, it need not cause bodily harm or even pain, and it need not leave any mark.' (1 Witkin, Cal.Crimes (1963) supra, pp. 243-244.)
In People v. Bradbury (1907) 151 Cal. 675, 676-677, 91 P.497, the court said: 'The 'violent injury' here mentioned is not synonymous with 'bodily harm,' but includes any wrongful act committed by means of physical force against the person of another, even although only the feelings of such person are injured by the act. The term 'violence' as used here is synonymous with 'physical force,' and in relation to assaults the two terms are used interchangeably. * * * 'The kind of physical force is immaterial; * * * it may consist in the taking of indecent liberties with a woman, or laying hold of and kissing her against her will.' * * *' (Accord: People v. Flummerfelt (1957) 153 Cal.App.2d 104, 106, 313 P.2d 912.)
A battery is a general intent crime. To constitute a battery '[i]t is enough that the act be intentional and unlawful; there need not be an intent to injure.' (1 Witkin, Cal.Crimes (1963) supra, p. 244.) Penal Code, section 7, subdivision 1, provides in part: 'The word 'wilfully,' when applied to the intent with which an act is done * * * implies simply a purpose or willingness to commit the act, * * *. It does not require any intent to violate law, or to injure another, * * *.'
Notwithstanding the label 'specific intent,' for a simple assault there need be only a state of mind of wilfully inflicting a legal harm (Raefeldt v. Koenig (1913) 152 Wis. 459, 140 N.W. 56, 57, L.R.A. 1918 E, 1052) i. e. a technical battery, or of unlawfully 'making a bodily contact' with (Fuller v. State (1903) 44 Tex.Cr.R. 463, 72 S.W. 184; 1 Wharton, Criminal Law and Procedure [Anderson ed. 1957] § 330, p. 676) or applying force to the person of another (Commonwealth v. White (1921, Comm.Pleas, Pa.) 37 Montg. County Law Rep. 283, 284). Such an intent has been construed to amount to no more than 'a Burke v. United States
There appears to be no precise agreement as to what the term 'specific intent' means:
Parker v. United States (1966) 123 U.S.App.D.C. 343, 359 F.2d 1009, 1012-1013, disposed of the question in pragmatic fashion. Construing a statute making 'an assault with a dangerous weapon' punishable, the court said: 'Since the statute does not require that the weapon be used with a conscious purpose to inflict injury, we decline to read this requirement into it. * * * The concern of the statute is with assaults that are committed with dangerous weapons. Whether those weapons are used purposely to inflict injury or only recklessly, if the other elements of an assault are present, the conduct still falls within the ambit of the statute. Since a specific intent to inflict serious injury with the weapon is not necessary, drunkenness is no defense. Whatever ambiguities there may be in distinguishing between specific and general intent to determine whether drunkenness constitutes a defense, an offense of this nature is not one which requires an intent that is susceptible to negation through a showing of voluntary intoxication.' (Emphasis added.)
Having projected our analysis beyond People v. Fanning (1968) 265 Cal.App.2d 729, 734, 71 Cal.Rptr. 641, where we said an 'assault is a specific intent crime' and finding that while the statement is conceptually correct, the intrinsic nature and quality of the intent is not ponderably distinguishable from the 'general intent' adequate for a battery, we now hold that a violation of section 245, subdivision (a), of the Penal Code may be treated as a general intent crime to which voluntary intoxication, even when it causes a diminished capacity, is not a defense. In this respect, we return to the holdings of People v. Gordan (1894) supra, 103 Cal. 568, 575, 37 P. 534; People v. Marseiler (1886) supra, 70 Cal. 98, 100, 11 P. 503; and People v. Gaines (1966) supra, 247 Cal.App.2d 141, 148, 55 Cal.Rptr. 283, that voluntary intoxication is immaterial to the intent requisite to commit an assault with a deadly weapon. The result we reach would appear to comport with both the common law background of the rule embodied in section 22 of the Penal Code and with the definition
Cf. Arnold, Criminal Attempts--The Rise and Fall of an Abstraction (1930) 40 Yale L.J. 53.
Professor Hall states that even a 'general criminal intent' is specific. 'We have previously considered one of these problems, namely, the current distinction of 'specific' and 'general' intent, and it will be recalled that one of the conclusions reached was that all mentes reae are specific.' (Hall, General Principles of Criminal Law (2d ed. 1960) p. 546.)
Penal Code, section 22 interjects a policy consideration laid down by the Legislature, so that determination of the issue presented on this appeal is not a question determinable by logic alone. Of interest is Professor Hall's statement that Stephen's formulation of the rule now embodied in section 22, 'established the emerging rationale of the long-desired mitigation of punishment of grossly inebriated homicides.' He also alludes to the common law cases leading to the formulation of the rule, among which are those that instructed the jury to consider the element of intoxication in an assault with intent to murder, but that intoxication was not considered relevant where it was committed with a dangerous instrument, which if used, would produce grievious bodily harm. (Hall, op. cit., supra, pp. 522-523.)
V.
Our observations herein are limited to the crimes defined by section 245, subdivision (a); in particular, they do not apply to other types of aggravated assault, sech as those prohibited by Penal Code, sections 217 (with intent to commit murder) and 220 (with intent to commit certain enumerated felonies).
Since the crimes in violation of section 245, subdivision (a), are seldom filed upon except where there have been actual physical injuries, the happier solution would be for the Legislature to promulgate a new section making a battery with a deadly weapon or instrument or by means of force likely to produce great bodily injury a felony.
VI.
The judgment is affirmed.
STEPHENS, Acting P.J., and REPPY, J., concur.
(A). Dr. Tutunjian: '(5) Did he have the mental capacity to form the specific intent to commit crime charged? At the time of the incident I do not believe that he had the intent to commit the crime with which he is charged but he did it just the same. (6) Did he have the mental capacity to deliberate? In my judgment at the time of the offense he did not have the mental capacity to deliberate.'
(B). Dr. Bailey: '(5) He had the mental capacity to form the specific intent to commit crimes; but (6) He did not have the mental capacity to deliberate.'
(C). Dr. Wilkins: '5. He did not have the mental capacity to form the specific intent on May 7, 1966, to do bodily harm to his landlady and border [sic]. 6. He did not have the mental capacity to deliberate at that time.'
The proof adduced in this case would have supported the findings of the trial court even if a specific intent standard were applicable. Normally, in the absence of a specific finding or ruling, it will be presumed upon appeal that the correct standard was applied. However, the presumption is dispelled where the issue of 'general intent' or 'specific intent' has been raised and argued at length. Under such circumstances, it was incumbent upon the trial court to make a specific ruling to inform the parties and their counsel as to which yardstick was being applied. Other than the remarks set forth above, the trial court merely asked defense counsel what he had to say about the prosecution's argument that the assaults involved were general intent crimes. Thus the trial court's remarks were at best ambiguous. Hence we entertain defendant's contention that the trial court treated the assaults as general intent crimes.
'It is sometimes stated that an attempt requires 'a specific intent.' This is not accurate terminology. What must be specific is the crime which is intended.' (Keedy, Criminal Attempts at Common Law (1954) 102 Pa.L.Rev. 464, 468.)
'How, then, to define this 'specific intention' which we must so diligently seek in every criminal attempt? This is an open inquiry, inviting the consideration of psychologist, jurist and lawyer alike. * * * What is meant by a specific criminal intent is that * * * kind of intention--that intent to effect some consequence through a voluntary act, which is prohibited by the criminal law. The kind of intention necessary * * * must reach all the way to the consequences which would comprise the substantive crime upon which the attempt is founded.' (Skilton, The Mental Element in a Criminal Attempt (1937) 3 U.Pitt.L.Rev. 181, 182.)
'[A]t least one of the defendant's objectives (of which there may be several) must constitute (whether the defendant knows the law or not) the crime attempted.' (Sayre, Criminal Attempts (1928) 41 Harv.L.Rev. 821, 858.)