Brief Bank # B-709 (Re: F 9.00 n7 [Assault: No Intent Required As To A Particular Victim].)
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II.
IN CONNECTION WITH THE ASSAULT ON MR. B IN COUNT III,
THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY THAT THE VICTIM
MUST HAVE BEEN REASONABLY FORESEEABLE TO THE DEFENDANT.
A. Nature Of The Error
In Count III appellant was convicted of assault with a firearm (§ 245, subd. (a)(2)) against Mr. B, based on a single shotgun blast which injured both Count II victim Ms. G and Mr. B. In connection with all three firearm assault counts (II, III and V), the trial court defined “assault” for the jury according to the standard instructions. (CALJIC Nos. 9.02, 9.00; see RT 885-886, CT 9293.) But because that instruction omits a material aspect of the mental element of the offense, one clearly at issue in this case, reversal is required.
The assault instruction was given as follows:
In order to prove [a violation of § 245, subdivision (a)(2)], each of the following elements must be proved: One, a person was assaulted; and, two, the assault was committed with a firearm. A firearm includes a shotgun. As used in these instructions for assault with a firearm, assault is defined as follows: One, a person willfully commits an act that by its nature would probably and directly result in the application of physical force on another person; and, two, at the time the act was committed,. such person had the present ability to apply physical force to the person of another.
Willfully means that the person committing the act did so intentionally. To constitute an assault, it is not necessary that any actual injury be inflicted; however, if an injury is inflicted, it may be considered in connection with other evidence in determining whether an assault was committed and, if so, the nature of the assault. (RT 886, emphasis added; CT 92-93; CALJIC Nos. 9.02 [in part], 9.00.)
The inadequacy of the above instruction is apparent in connection with Count III: In requiring only a “willful[] . . . act that by its nature would probably and directly result in the application of physical force on another person[,]” the instruction failed to inform the jury that appellant had to be reasonably aware of Mr. B as a potential victim of the force. That is, if the jury found (as it did in Count I) that appellant intended to fire the shotgun at Ms. G, and appellant’s act naturally would have resulted in injury to someone near her, appellant’s awareness or ignorance of that person’s presence was entirely meaningless. Indeed, the only factual question would be whether Mr. B was physically situated in such a position as to be a likely victim of the gunfire, regardless of his visibility to appellant when the shot was fired. But the law of assault does not permit such a result.
Section 240 defines the crime of assault: “An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” Stated in “shorthand” fashion, it is an attempt to commit a battery. (People v. Colantuono (1994) 7 Cal.4th 206, 214-215.)
Assault . . . [has an] essential relation to battery: An assault is an incipient or inchoate battery; a battery is a consummated assault. . . . . This infrangible nexus means that once the violent-injury-producing course of conduct begins, untoward consequences will naturally and proximately follow. “The gravamen of the crime defined by [Penal Code] section 245 is the likelihood that the force applied or attempted to be applied will result in great bodily injury.” [Citation.] (Id. at 216-217, emphasis in original.)
This “likelihood” is a reference to the defendant’s reasonable perspective, not simply that of a jury attempting an objective reconstruction of proximate causation. In other words, it must be “‘known'” to the defendant that a battery is “‘substantially certain to result . . . .’ [Citations.]” (Id. at 219.) “[T]he perpetrator must be aware of the nature of the conduct and choose to ignore its potential for injury . . . .” Id. at 220, emphasis added.) One who intentionally fires a gun is certainly aware of the nature of his conduct, but vis-a-vis a particular victim, the perpetrator cannot consciously ignore the potential for injury if he is unaware of the victim’s presence. “[E]ven the most expansive interpretation of the intent required to commit an assault with a deadly weapon still requires a defendant to be aware of the presence of potential victims. [Citations.]” (In re Daniel R. (1993) 20 Cal.App.4th 239, 246, fn. 5.)
A recent Court of Appeal decision underscores appellant’s point. In People v. Tran (1996) 47 Cal.App.4th 253 (review den. Oct. 16, 1996), a knife-wielding defendant, who had previously threatened a married couple, chased the husband who was carrying their 18-month-old son at the time. The defendant was convicted of two counts of deadly weapon assault. (Id. at 256-257.) In rejecting the defendant’s insufficiency of evidence argument with respect to assault on the child, the court made it clear that while a specific intent to injure was not required, the defendant’s awareness of the victim was very much an element of the offense:
We read Colantuono to mean that an intent to do an act which will injure any reasonably foreseeable person is a sufficient intent for an assault charge. Defendant need not have specifically intended to injure baby Jackson; chasing Sang Ngoc Tang (who was carrying Jackson) and wielding a large knife conveyed an intent to cause injury with the knife. It is not reasonable to insist that defendant desired only to injure the father, and thus was not liable for an assault on the son. Surely a knife attack on the father could foreseeably have wounded the baby. (47 Cal.App.4th at 262, emphasis added.)
Thus, the fact that Mr. B, standing near Ms. G, was injured by the gunshot does not by itself show whether his injury was reasonably “likely” from appellant’s perspective. That question is for the trier of fact (People v. Colantuono, supra, 7 Cal.4th at 218, fn. 9)–if a jury, one properly instructed as to the foreseeability requirement. The instruction as given does not convey such a requirement; on the contrary, there is more than a “reasonable likelihood” of CALJIC No. 9.00 being interpreted so as to render consideration of the defendant’s perspective irrelevant. (Estelle v. McGuire (1991) 502 U.S. 62, 72 [116 L.Ed.2d 385, 399; 112 S.Ct. 475, 482]; People v. Clair (1992) 2 Cal.4th 629, 663.)
The key principle, as read to the jury, was the following: “(A] person willfully commits an act that by its nature would probably and directly result in the application of physical force on another person . . . .” (RT 886, emphasis added.) The phrase “by its nature” makes no reference to the defendant’s perception or understanding vis-a-vis the victim. In context, it modifies the “act” which the defendant “willfully committed.” But there is no stated or obvious link between the defendant’s “willfulness” and what “would” be the “natural” result of the act. That is, the defendant must intend to commit an act. And under the circumstances–regardless of whether they are known to the defendant–the act is one which “would” likely “result in” force against the victim. In omitting instruction on an “aspect of the intent element” of assault, the court violated appellant’s federal and state constitutional rights to due process and jury trial. People v. Cummings (1993) 4 Cal.4th 1233, 1314.)
Appellant is unaware of California case law which has directly addressed this issue. In Tran, supra, as in the instant case, the jury apparently received the standard jury instruction defining assault. (47 Cal.App.4th at 262.) The Court of Appeal approved this instruction and rejected the defendant’s argument that it “did not convey the intent required for an assault on Jackson Tang.” (Ibid., fn omitted.) But the result in Tran does not resolve the issue here, as the court was not asked to address and so did not reach that issue. Instead, the defendant contended that “the jury instructions did not adequately inform the jury of itsduty to find a specific intent to injure Jackson.” (Id. at 261, emphasis added.) As noted above, no such intent requirement exists in the law of assault, and Tran recognized as much. (Id. at 262.) The court concluded by quoting the assault instruction, simply to point out its generally accurate statement of mens rea, applicable to the facts and issue of that case:
[The instruction] stated, in relevant part, that the prosecution must prove: “A person willfully committed an act that by its nature would probably and directly result in the application of physical force on another person,” with “willfully” being further defined as “the person committing the act did so intentionally.” The court also instructed the jury on the general intent requirement. We find no error. (Ibid.)
The quoted analysis is merely dicta with respect to the instant issue, as the question of foreseeability to the defendant was neither raised nor considered. Indeed, the Court of Appeal suggested that given the facts, unforeseeability could “not reasonably” be found. (Ibid.) “‘Language used in any opinion is of course to be understood in the light of the facts and the issue then before the court, and an opinion is not authority for a proposition not therein considered. [Citation.]’ [Citations.]” (People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 65-66.)
Appellant recognizes that in Colantuono the Supreme Court “admonish[ed] trial courts not to embellish on the standard jury instructions for assault and assault with a deadly weapon unless compelled by the peculiar facts of the case. [Citation.]” (7 Cal.4th at 222.) But like the Tran opinion, Colantuono had no occasion to consider the extent to which the “standard jury instructions” adequately informed the jury about the requirement that the defendant be reasonably aware of the victim. [Footnote 1] In the context of the Supreme Court’s discussion, “[t]he pivotal question [wa]s whether the defendant intended to commit an act likely to result in such physical force, not whether he or she intended a specific harm. [Citation.]” (7 Cal.4th at 218, fn. omitted.) Thus, the bulk of Colantuono’s mens rea discussion concerned the issue of what was intended by the defendant. Although–as Tran recognized-Colantuono’s discussion additionally shows that victim foreseeability to the defendant is part of the assault mens rea, neither court examined the precise instructional issue presented here.
Thus, in terms of the Supreme Court’s admonition, appellant is not complaining that the standard assault instruction should have been “embellished”; his concern is properly directed at omission of a significant aspect of the mens rea for assault, not otherwise identified in the instruction. And as Colantuono also observed, “[s]ince intent always remains an issue of fact [citation], the jury must clearly understand its responsibility to resolve that question beyond a reasonable doubt. . . . [Citations.}” (Id. at 221.) In any event, Colantuono did not shield CALJIC No. 9.00 from required augmentation where “compelled by the peculiar facts of the case.” (7 Cal.4th at 222.) In the instant case, unlike the facts of Tran and Colantuono, [Footnote 2] a foreseeability instruction was so compelled, as there ‘was a clear factual issue of whether appellant was aware of Mr. B’s presence.
The Smith girls’ mother, Mrs. Smith, testified only that Mr. B was standing” inside the front door when Ms. G went down. (RT 84.) Her vantage point was of course behind both victims, so her testimony does not clearly resolve the issue of Mr. B’s visibility from appellant’s perspective in firing the shot. A. Smith testified that Mr. B “was on the stairs which are right behind Ms. G where she was standing.” (RT 143-144.) But she clarified that she did not see him until she went into the house after the shot was fired, despite the fact that she was out in front, looking at Ms. G. (RT 168-169.) B. Smith, also in front, saw Ms. G when appellant fired the shot, but similarly did not see Mr. B until she went into the house. (RT 182-183.) Ms. G testified that she was already a couple of feet into the hallway when the shot was fired, and she did not see Mr. B. (RT 267, 274-275.) And according to Mr. B, the shot was fired as he was approaching Ms. G, still behind her and on the side. He heard the “bang” as he saw appellant with the rifle, but had no chance to say anything. (RT 220-221.)
The only evidence directly suggesting appellant’s awareness of Mr. B was Officer Helm’s testimony that at the time of his arrest appellant acknowledged that he had seen Mr. B and knew he had shot him. The officer did not explain whether appellant claimed to have seen Mr. B as of the moment the shot was fired. (RT 371, 418-419.) As recounted by Helm, however, appellant’s detailed story included no reference to Mr. B as a shooting victim or having been present in the hallway. (RT 390.) On the contrary, appellant explained the Mr. K shooting by suggesting that “there was not anything any different than shooting one [Ms. G] or two [Ms. G and Mr. K] . . . .” (RT 394.)
At trial, appellant testified that he “didn’t even know [Mr. B] was there” and did not know that he had been hit. (RT 694.) Appellant added that between the shooting and his surrender, he learned from some other people that Mr. B had been shot (and that Ms. G was supposedly dead). (RT 698.) He explained that he exaggerated his culpability to police to ensure his death sentence, based on the assumption that Ms. G was dead; the police did not tell him otherwise, nor did they answer his question about how Mr. B was doing. (RT 700701.)
In argument, both attorneys expressly acknowledged the factual issue of appellant’s awareness. The prosecutor initially argued only that Mr. B was in the doorway “[s]tanding beside Ms. G” when he was shot. (RT 771, 803; see also RT 856-857 [closing argument].) In her closing statement defense counsel spent more than two pages of transcript arguing that appellant did not see and could not have seen Mr. B at the time the shot was fired. (RT 828829, 833.) [Footnote 3] And the prosecutor referred to counsels argument, replying that appellant must have seen Mr. B. (RT 851-852.) [Footnote 4]
Unfortunately, the significance of this disputed factual issue presumably was lost on the jury. While the attorneys argued their factual positions, neither linked them to the assault instruction or elements. And as appellant has shown, that instruction did not inform the jury that the issue of Mr. B’s visibility to appellant made any difference with respect to appellant’s guilt.
B. The Error Requires Reversal
Because of the federal constitutional error, as argued above, the judgment in Count III must be reversed unless the impact of the error was harmless beyond a reasonable doubt. (People v.Cummings, supra, 4 Cal.4th at 1314-1315.) Stated otherwise, reversal is required unless “the evidence . . . is ‘of such compelling force as to show beyond a reasonable doubt’ that the erroneous instruction ‘must have made no difference in reaching the verdict obtained., ‘ [Citation.]” (People v. Harris (1994) 9 Cal.4th 407, 431, fn. omitted [quoting Yates v. Evatt (1991) 500 U.S. 391, 407 [114 L.Ed.2d 432, 451-452, 111 S.Ct. 1884], disapproved on another ground in Estelle v. McGuire, supra, 502 U.S. at 72, fn. 4 [116 L.Ed.2d at 399, 112 S.Ct. at 482]].)
The record in support of the need for a foreseeability instruction, outlined above, shows that the bulk of the pertinent evidence actually contradicted a finding that appellant was aware of Mr. B at the time of the shooting. At minimum, the evidence was in serious conflict, and the attorneys so argued to the jury. It cannot reasonably be maintained that the evidence of appellant’s awareness was “of such compelling force as to show beyond a reasonable doubt” that the omission of any instruction as to the existence of that factual element “must have made no difference” to the jury.
Nor did the remaining instructions and findings necessarily resolve the foreseeability/awareness issue against appellant. People v. Sedeno (1974) 10 Cal.3d 703, 721, disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12.) In People v. Colantuono, supra, the Supreme Court relied on this principle in determining that any instructional error would have been harmless:
Given the jury’s express finding that appellant inflicted great bodily injury within the meaning of Penal Code section 12022.7, any possible deficiency was, beyond a reasonable doubt, not prejudicial. [Citations.] This finding required a determination as a preliminary fact that appellant, with the specific intent to inflict such injury, did personally inflict great bodily injury on the victim in the commission of the crime alleged. [Citation.] (7 Cal.4th at 222.)
In the instant case, the section 12022.7 enhancement finding in connection with Count III cannot save the instructional error, however. Over appellant’s objection (RT 669, 758-759), the court modified CALJIC No. 17.20 to remove the very factor cited in Colantuono:
If you find the defendant guilty of Penal Code Section 245 subdivision (a) (2), assault with a firearm, the crime charged in Count Three of the information, with the specific intent to inflict great bodily injury on some person such injury, did personally inflict great bodily injury on Mr. B during the commission of the crime of assault with a firearm.
In determining whether or not the defendant personally intended to inflict great bodily injury on a person it is required that you find the defendant specifically intended to inflict great bodily injury on some person, and that the defendant personally did inflict great bodily injury on a person. It is not required that you find the defendant inflicted the great bodily injury on the particular person he intended to injure. (CT 102, modifications as indicated in original; RT 894-995.)
Thus, the jury was never asked to find, in any context, that appellant had any mens rea whatsoever with respect to Mr. B, the assault victim in Count III. The judgment in that count must be reversed.
FOOTNOTES:
The court’s discussion was triggered by a trial court’s “augmentation” of CALJIC No. 9.00, as follows: “‘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 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.'” (7 Cal.4th at 211-212.) In his appeal, the defendant contended this modification created a mandatory presumption as to intent. (Id. at 212.) The Supreme Court ultimately disagreed (id. at 220-221), although critical of the modification’s use of the word “presumed” (id. at 221); this was the context for the court’s admonition.
In Colantuono, during a “play fight” the defendant pointed a revolver at the victim and continued to aim it at him; the gun discharged, shooting the victim in the neck. (7 Cal.4th at 211.)
Some examples from counsels argument: “[Appellant) never even saw Mr. B. Ms. G said she never saw Mr. B. Mr. B was sort of an accident.” (RT 828.) “Look at the angle again where the shell was found, where the pellets are on that door. . . . . He could not possibly have seen that Mr. B was even there.” (RT 829.) “[T]here is no reason even to suspect that Mr. B was there.” (RT 833.)
The prosecutor’s primary approach was to argue that appellant’s testimony about Mr. B was not credible. The prosecutor cited only one item of direct evidence about the shooting, mischaracterizing B. Smith’s testimony: “[S]he said she saw him in the doorway just at or about the time of the shooting.” (RT 852.) (As noted above, she did not see Mr. B until she went in the house after the shooting. (RT 182183.))
