Brief Bank # B-652a
COURT OF APPEAL OF THE STATE OF CALIFORNIA
IN AND FOR THE SIXTH APPELLATE DISTRICT
THE PEOPLE OF THE STATE OF CALIFORNIA, No. H004199
Plaintiff and Respondent,
Santa Clara
vs. County No. 116478
JONATHAN T.,
Defendant and Appellant.
/
APPELLANT’S OPENING BRIEF
On Appeal from the Judgment of the Superior Court
Of the State of California
In and For the County of Santa Clara
HONORABLE JACK KOMAR
THOMAS LUNDY
Attorney at Law
37 Old Courthouse Sq., Suite 304
Santa Rosa, California 95404
Telephone: (707) 523‑7515
Attorney for Appellant
IV
THE RECORD CONTAINS INSUFFICIENT EVIDENCE
TO SUPPORT THE VERDICT IN COUNT III FOR
“CONDITIONAL ASSAULT”
Count III of the information charged appellant with assault with a deadly weapon upon George S in violation of Penal Code section 245(a)(2). Even though the evidence showed that appellant only pointed the gun at the victim and did not attempt to commit a battery upon him, the prosecution argued that the requirements of the statute were satisfied under a “conditional” assault theory. That is, the pointing of a gun coupled with a threat or demand is sufficient to satisfy the statute. (See, CT 243.) The trial court agreed with the prosecutor and denied appellant’s motion to dismiss, motion for a directed verdict, and for a new trial. (RT 186, 1352, 1875.) In denying the Penal Code section 1118.1 motion the trial judge stated that a conditional assault was established because the requisite threat need not be verbalized. (RT 1352.)
This conclusion was erroneous. The cases which have considered this issue have consistently required a stated demand, threat or condition. Hence, because no such statement was made here, the conviction must be invalidated.
In California, assault is defined as “an unlawful attempt, coupled with the present ability, to commit a violent injury on the person of another.” (P.C. section 240.)[16] This statutory definition incorporated the common law definition of assault as “an attempted battery.” (In re James M. (1973) 9 Cal.3d 517, 521; People v. Rocha, supra, 3 Cal.3d at 899; People v. Yslas (1865) 27 Cal. 630.) The cases are legion which define assault as an attempt to commit a battery and which define an “intent to commit battery” as the requisite intent. (E.g., In re James M., supra, 9 Cal.3d at 521‑522; People v. Rocha, supra, 3 Cal.3d at 899; People v. Burres (1980) 101 Cal.App.3d 341, 346; People v. Lathus (1973) 35 Cal.App.3d 466, 470; 1 Witkin, Cal. Crimes section 255.) Therefore, the essential elements of assault with a deadly weapon have been defined as:
“(1) the intentional commission of an act (2) with a deadly weapon, (3) the successful completion of which would probably result in injury to the person of another.” (People v. Armendariz (1985) 174 Cal.App.3d 674, 681‑682.)
However, another line of cases has carved out a judicially created exception to the attempt requirement of the statute by permitting conviction of assault based upon a “conditional offer of violence.” (See, Perkins, Criminal Law (2nd Ed.) pp. 131‑132.) This doctrine is summarized by Perkins as follows:
“A conditional offer of violence without justification or excuse is sufficient to constitute an assault. [Footnote omitted.] It is no answer to a charge of assault in such a case that the victim could avoid the threatened harm by complying with the unlawful command, [footnote omitted] nor that he did actually so avoid it. [Footnote omitted.] Thus, it is an assault to double the fist and run at another, saying, ‘If you say that again I will knock you down;’ [footnote omitted] or to draw a pistol and point it at another with the threat, ‘If you do not pay me my money I will have your life’; [footnote omitted] or to point a weapon in this manner and tell the other to take off his overalls and quit work or be shot.” [Footnote omitted.] (Id.)
In California the “conditional assault” doctrine was judicially adopted as a matter of policy to avoid “a great defect in the law.” (People v. McMakin (1857) 8 Cal. 547, 548‑549.) In its earliest discussion of the doctrine the Supreme Court declared as follows:
“The prisoner put himself in a position to use the weapon in an instant, having only to elevate the pistol and fire, at the same time declaring his intention to do so, unless the prosecutor would leave the ground. It is true, the threat was conditional, but the condition was present, and not future, and the compliance demanded was immediate. Where a party puts in a condition which must be at once performed, and which condition he has no right to impose, and his intent is immediately to enforce performance by violence, and he places himself in a position to do so, and proceeds as far as it is then necessary for him to go in order to carry out his intention, then it is as much an assault as if he actually struck, or shot, at the other party, and missed him. It would, indeed, be a great defect in the law, if individuals could be held guiltless under such circumstances. The drawing of a weapon is generally evidence of an intention to use it. Though . . . that evidence may be rebutted . . . when the party draws the weapon, although he does not directly point it at the other, but holds it in such a position as enables him to use it before the other party could defend himself, at the same time declaring his determination to use it against the other, the jury are fully warranted in finding that such was his intention.” (Id.)
In so adopting the “conditional assault” doctrine it could be argued that the Court effectively eliminated a statutory element of the offense. As Perkins observes, none of the examples of conditional assault used in his text involved “an attempt to commit a battery and hence none of them would seem sufficient to constitute an assault in a state limiting the offense to this basis alone.” (Perkins, supra.) Nevertheless, the conditional assault exception has been judicially approved on many occasions since the McMakin case. (E.g., People v. Fain (1983) 34 Cal.3d 350, 356‑357; People v. McCoy (1944) 25 Cal.2d 177, 192‑193; People v. Vorbach (1984) 151 Cal.App.3d 425, 429; People v. Duncan (1945) 72 Cal.App.2d 423, 427.)
However, even though the conditional assault exception purports to remove one element of the offense, it adds another: i.e., an express or stated condition. As illustrated by the above excerpts from Perkins and People v. McMakin, supra, criminal liability under the conditional assault doctrine requires the accused to state or express a condition to the accused. (See, Perkins, supra.) That is, the doctrine applies where the accused “puts in a condition which must be at once performed . . .” (People v. McMakin, supra, 8 Cal. at 54.) Hence, subsequent cases have consistently required that the drawing or pointing of a deadly weapon be coupled with an expressed demand or condition in order to constitute an assault. (People v. Fain, supra, 34 Cal.3d at 356‑357: “defendant aimed his gun and demanded compliance with his instructions”; People v. McCoy, supra, 25 Cal.2d at 192: “knife was exhibited in connection with a qualified threat [original emphasis]”; People v. McMakin, supra: accused pointed a loaded gun toward the victim and demanded that he leave the premises immediately; People v. Vorbach, supra, 151 Cal.App.2d at 428‑429: defendant “held the knife in a threatening manner and demanded money”; Pittman v. Superior Court (1967) 256 Cal.App.2d 795, 798: defendant stated “Don’t touch me or I will fire”; People v. Swansboro (1962) 200 Cal.App.2d 831: defendant “threatened to come out shooting . . . to kill the officers”; People v. Thompson (1949) 93 Cal.App.2d 780, 782: defendant pointed gun and demanded that officers raise their hands”; People v. Duncan (1945) 72 Cal.App.2d 423, 427: defendant “covered” both witnesses “with a gun and ordered them out of the automobile.”
In the present case no such demand or condition was expressed by appellant. As appellant was running across the street George S ran toward him and as appellant turned toward Mr. S the gun turned also. No demands or conditions were stated while the gun was pointing at Mr. S and appellant simply turned away and walked calmly back to his house. (RT 1180‑1183; 1200‑1201.) Accordingly, there was no actual attempt to commit a battery upon Mr. S and there were no statements of appellant to satisfy the requirements of the conditional assault exception. Accordingly, the conviction must be reversed.
[16] In 1850 the legislature adopted “An Act Concerning Crimes and Punishment.” The essential elements of assault were then incorporated into the 1872 version of the Penal Code. (See, People v. Rocha (1971) 3 Cal.3d 843, 898, fn. 3.)
