P.C. § 245–Assault With A Deadly Weapon
by Richard Layon
Few sections of the Penal Code have generated as much consternation as that of Penal Code § 2452. The apparent reason for the confusion is that section 245 crosses a traditionally specific intent offense–assault or attempted battery–with that of a general intent crime–battery–producing an offspring comprised of rather curious components.
CALJIC 9.00 defines assault as (1) a willful and unlawful act which by its nature would probably and directly result in the application of physical force to the person of another; and (2) at the time the act was committed, the person had the present ability to apply physical force to another. While a tremendous amount of effort, and paper, has been generated addressing the nuances of section 245–of which it is teeming–none more so than that which has been utilized ascertaining the mental state required for the commission of such an offense.
Not long ago, the California Supreme Court attempted to clear up the ambiguity surrounding section 245 in People v. Colantuono, (1994) 7 Cal.4th 206. In Colantuono, the Supreme Court sought to eliminate recurring confusion about the intent or mental state necessary to establish an assault.
The majority held that the offense of “Assault with a Deadly Weapon” is a general intent crime, with its mens rea established by proof that a defendant intentionally or willfully committed an act that by its nature would probably and directly result in injury to another. No proof of an additional specific intent to inflict a particular harm is required. Ibid at p. 214.
Although the defendant must intentionally engage in conduct that will likely produce injurious consequences, the prosecution need not prove a specific intent that defendant intended to inflict a particular harm. The evidence must only demonstrate that the defendant willfully or purposefully attempted a violent injury or the least touching. Ibid.
Stated another way, the pivotal question is whether the defendant intended to commit an act likely to result in a violent injury, not whether s/he intended to commit a specific harm. Ibid at p. 218. The distillation of the aforementioned draws one to the conclusion that reckless or negligent conduct or conduct engaged in with the mens rea to only frighten [i.e. firing a weapon into the air] will not support a violation of section 245.
After reading Colantuono when it first came out on the advance sheets–and several times thereafter–I have come to the conclusion that, though Justice Arabian made a valiant effort to resolve the confusion and consternation amongst the bench and bar surrounding the elements of section 245, he fell somewhat short. This conclusion is buttressed by the difficulty which has been observed, since Colantuono was published, with both the bench and members of the bar. In sum, the mental component of section 245–a general intent coupled with a specific mens rea–has been, and remains, clear as mud.
Recently, in People v. Smith, (1997) ____ Cal.App.4th ____, 97 D.A.R. 12263 (2/26/97) the Third District Court of Appeals found itself–like many predecessors–wrestling with section 245. The approach taken by the Smith court was to discuss what section 245 was not, rather than the traditional tack of enunciating what it was.
In Smith, the defendant was charged with violating section 245(c)3. Specifically, Smith was driving his vehicle on the roadway as he approached a police barricade designed to stop and redirect traffic. The events which occurred next were undisputed to the extent that Smith is observed revving his engine and accelerating rapidly down the highway for approximately 100 feet until a police cruiser blocked his pathway; Smith’s troubles increased exponentially due to the fact that he had acquired a police officer as a hood ornament during the course of his brief hiatus through the blockade. Ibid at pp. 12264-12265.
Smith insisted that he accelerated because another officer waived him forward. Officers observing the debacle testified that no law enforcement official waived Smith forward; rather he accelerated and drove through the police line, resulting in one officer being hit and the balance scattering so as to avoid being run over. Ibid at p. 12265.
Following the presentation of the evidence and the reading of standard CALJIC instructions–including 9.00–the jury retired and began deliberations. Early in the deliberating process, the jury sent out a note with the following questions: (1) “[d]oes the intent to move the vehicle forward, alone constitute `general criminal intent’?” (2) “[i]s the conscious intent to injure necessary for `general criminal intent’?” In responding to the jury’s queries, the court stated that: “while reckless conduct alone does not suffice for conviction of ADW, . . . `if a person intended to commit an act, the natural and probable consequence of which if successfully completed would be the application of physical force upon the person of another, this would not constitute reckless conduct.’” The jury thereafter returned a verdict of guilty to the charged offense. Ibid at p. 12265
Smith appealed claiming the trial court erred inasmuch as it instructed the jury that the mental state of section 245 was satisfied, in essence, by negligent conduct. In the context of this case, the error arose when the court instructed the jury that a violation of section 245 occurs if the defendant intended to move the vehicle forward, the natural and probable consequence of which would be the application of physical force upon the person of another. Ibid at pp. 12263-12264, 12266.
In reversing the judgment, the court in Smith explained that the guidance provided the jury by the trial court directed–irrespective of whether the defendant intended a battery–that the mere act of moving the car, where it is reasonably foreseeable that such an act would result in the application of physical force upon another, would extend criminal liability to the actor under section 245. The court was quick to point out that this was a negligence standard. Ibid at p. 12266.
The court then queried, rhetorically of course, how language evoking a negligence standard came into the lexicon associated with section 245. The court in Smith looked back to the California Supreme Court’s earlier opinion in People v. Rocha, (1971) 3 Cal.3d 893 and noted that the phrase “`natural and probable consequences’ was imported into the law of assault with a deadly weapon in a confusing passage [by the Rocha court].” Ibid at p. 12267.
The court opined that Rocha really did not mean to import a negligence standard into section 245 by stating all that was required was a general intent to commit an act, the natural and probable consequence of which, if completed, would be injury to another. Rather what the court in Rocha meant to say–in reference to the phrase “natural and probable consequence”–is that a specific harm need not be intended, nor need it occur, but great bodily injury upon the person being assaulted must be a foreseeable consequence of the act. Ibid at pp. 12267-12268.
The court in Smith then reviewed Colantuono, supra, and observed the harmony between its conclusion, as to what is not a violation of section 245, and Colantuono’s description as to what was. The court noted that to constitute an assault, the defendant must intend to commit a battery. If there is not present purpose to do an injury, there is no assault. Ibid at p. 12267. Viewed from a different angle, it is not enough that the act itself is intentionally done, even though the actor realizes or should realize that it contains a very grave risk of bringing about the contact. Such realization may make the actor’s conduct negligent, or even reckless, but unless s/he realizes that to a substantial certainty that contact will result, the actor had not that intention which is necessary to make him criminally liable for an assault. People v. Smith, supra at p. 12268, fn. 10 [citations omitted.] See also People v. Lee, (1994) 28 Cal.App.4th 1724, 1734 [intent to frighten or reckless conduct is not sufficient to support a conviction for assault with a deadly weapon].
The problematic phrase “natural and probable consequence”, as used in conjunction with section 245, supplants the intent required of an assault with a deadly weapon–an intended forcible and unlawful touching as a desired consequence or one that is known to be substantially certain to result–for the lessor negligence standard. Aside from being at the far end of the “mental state gradient”, negligence, as embodied in the natural and probable consequence standard; (1) is an objective determination and ignores what the defendant knew about the consequences of his act at the time he engaged in it; and (2) it looks to reasonably foreseeable consequences, not to consequences which were desired or which are substantially certain to result from the defendant’s conduct. People v. Smith, supra, 97 D.A.R. at p. 12269; in accord, People v. Tran, (1996) 47 Cal.App.4th 253.
And there you have it; ADW in a nutshell. If you weren’t confused before you read this article, surely you are now. Next month, “`R.A.P.’n From Six Feet Under”–The Rule Against Perpetuities: How To Make That Controlling Dead Hand Compliant.”
- Rick Layon received his Bachelor of Science Degree in Biology from San Diego State University in 1986, and his Juris Doctor from Willamette University in 1990. Mr. Layon is co-chair of the Criminal Section of the North County Bar Association. He is a partner in the firm of Layon & Holck, A.P.L.C. and limits his practice to the area of criminal defense.
- Unless indicated to the contrary, all statutory references are to the Penal Code
- Assault with a deadly weapon or by means likely to produce great bodily injury upon a person known to be a peace officer engaged in the performance of his duties. Ibid at p. 12265.