Brief Bank # B-952 (Re: F 9.35 n8 [Spouse Or Cohabitant Beating: Specific Intent Instruction Required When PC 273.5 Is Charged].)
CAVEAT: The file below was not prepared by FORECITE. FORECITE has not made any attempt to review or edit this material and is not responsible for its content or format. FORECITE cannot guarantee the information is complete, accurate or up-to-date. You are advised to conduct your own independent, comprehensive research on all issues addressed in the material below.
NOTE: The text of the footnotes appear at the end of the document.
Date of Brief: September, 2002.
THE JURY INSTRUCTIONS RELATING TO PENAL CODE
SECTION 273.5, CORPORAL INJURY TO A SPOUSE, WERE
CONTRADICTORY AND CONFUSING, AND THUS
REQUIRE REVERSAL OF THE CONVICTION ON THAT COUNT
The trial court instructed the jury with CALJIC No. 3.30, which gives a broad definition of a general intent crime: “…To constitute general criminal intent it is not necessary that there should exist an intent to violate the law. When a person intentionally does that which the law declares to be a crime, he is acting with general criminal intent, even though he may not know that his act or conduct is unlawful”. (CT 100.) The court also instructed the jury with CALJIC No. 1.20, the instruction on the meaning of “willfully.“ (CT 103.) The jury was given a definition of corporal injury to cohabitant in CALJIC No. 9.35. (CT 101.)
Appellant contends that the instructions given left the jury with a confusing version of what mental state was necessary for the crime of corporal injury to spouse, and may have resulted in the jury convicting appellant on this count on the basis that it was a general intent crime. Therefore this conviction must be reversed and remanded for a new trial.
B. THE JURY INSTRUCTIONS GIVEN WERE INSUFFICIENT
As noted above, CALJIC 3.30 informed the jury of the definition of a general intent crime. In contrast, a specific intent crime, broadly defined by CALJIC 3.31, requires “a certain specific intent in the mind of the perpetrator. Unless such specific intent exists the crime to which it relates is not committed”.
Penal Code section 273.5 states in relevant part: “Any person who willfully inflicts upon his …spouse, …corporal injury resulting in a traumatic condition, is guilty of a felony…”. Appellant contends that Penal Code section 273.5 requires the proof of a specific mental state, namely the specific intent to cause bodily injury resulting in a traumatic condition.”
Spousal abuse is a specific intent crime because its language requires not just that the willful commission of an assaultive act, but the willful causing of a corporal injury, so CALJIC No. 3.31 or CALJIC No. 3.31.5 should have been given rather than CALJIC No. 3.30. The trial court erred by only instructing the jury with CALJIC No. 3.30, the general intent instruction, and with No. 1.20, the definition of Awillfully. (CT 100, 103.)
The seminal case addressing the difference between general intent and specific intent crimes is People v. Hood (1969) 1 Cal.3d 444, wherein the court stated:
When the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence, we ask whether the defendant intended to do the proscribed act. This intention is deemed to be a general criminal intent. When the definition refers to defendant’s intent to do some further act or to achieve some additional consequence, the crime is deemed to be one of specific intent. [Id. at p.456, emphasis added.]
The distinction between general and specific intent crimes was further discussed in People v. Dollar (1991) 228 Cal.App.3d 1335. The court stated:
General intent crimes proscribe particular acts. For such crimes, reference is usually not made to the actor’s intent to achieve a further act or a future consequence concerning the restricted action. The accompanying intent to accomplish a further act is inherent in making an offense a specific intent crime. [Id. at p.1341, emphasis added.]
This follows the analysis in Hood, supra, and is the most useful guide to determine the type of intent required to be guilty of the charged crime. The use of the word “willfully” sheds little light on making the distinction. Penal Code section 273.5 uses the phrase “willfully inflicts”. Noting the inadequacy of using the term “willfully” as a rule of intent, the court in Dollar, supra stated:
The words willfully, knowingly, and maliciously are usually expressions of general criminal intent when used in a penal statute. …[H]owever, [o]ther specific intent crimes also use the term “willfully”. Perjury … is a specific intent crime that uses the term “willfully”. [Id. at p.1340.]
In Dollar, the court held that one who, after committing a lewd act on a child, willfully and maliciously makes a credible threat against the witness or victim, is guilty of a specific intent crime.
In In re M.S. (1995) 10 Cal.4th 698 concerned an appeal from a conviction of Penal Code section 422.6 which is commonly referred to as a “hate crime statute”. The statute quoted in relevant part states: “No person shall by force, …or threat of force, will- fully injure,… or threaten any other person in the free exercise…of any right…secured…by the Constitution… because of the other person’s race…or sexual orientation.” The court held that to be convicted of these crimes one must have the “specific intent to interfere with the victim’s enjoyment of a defined civil or constitutional right because of his or her protected characteristic.” (Id., at p.727.) This conclusion was reached by following the analysis done in People v. Lashley (1991) 1 Cal.App.4th 938, which involved a hate crime statute. In Lashley it was held that the term “willfully” meant acting with “a purpose to deprive a person of a specific constitutional right.” The Lashley court followed the reasoning in United States v. Screws (1945) 325 U.S. 91 [89 L.Ed. 1495, 65 S.Ct. 1031], which involved a violation of a similar federal statute and set forth two requirements for a finding of specific intent under the federal hate crime statute:
The first is purely a legal determination. Is the …right at issue clearly delineated and plainly applicable under the circumstances of the case? If the trial judge concludes that it is, then the jury must make the second, factual, determination. Did the defendant commit the act in question with the particular purpose of depriving the citizen victim of his enjoyment of the interests protected by that…right? If both requirements are met, even if the defendant did not in fact recognize the [unlawfulness] of his act, he will be adjudged as a matter of law to have acted ‘willfully’-i.e., ‘in reckless disregard of constitutional [or statutory] prohibitions or guarantees.’ [Id., at p. 948-949, emphasis added, internal quotations omitted.]
The defendant must have intended to invade constitutionally protected interests, “not the mere reckless use of force, even if motivated by ill will.” (Id., at p. 949.)
In light of this, the court in In re M.S., supra, held:
…section 422.6 requires proof that defendants ‘willfully‘ engaged in the prohibited conduct, and section 422.7 requires evidence the crime was committed for the purpose of interfering with the exercise of legally protected rights. The United States Supreme Court has emphasized the value of a specific intent statute in mitigating potential vagueness of a statute. (Id., at p.718, emphasis original.)
Simply put, the bias must motivate the offense. (Id. at p. 719.)
People v. Wesley (1988) 198 Cal.App.3d 519, involved an appeal from a conviction of Penal Code section 1320.5. Section 1320.5 states in relevant part:
Every person who is charged with the commission of a felony, who is released from custody on bail, and who in order to evade the process of the court willfully fails to appear as required, is guilty of a felony. (Id., at p. 522.)
The issue on appeal was whether this was a specific or general intent crime. The court relied upon People v. Hood, supra, 1 Cal.3d 444, and held:
Giving this language its ordinary import, we conclude the Legislature intended section 1320.5 to be a specific intent crime: Not only must the individual intend to fail to appear, but also he or she must intend the failure to appear to ‘achieve some additional purpose ‘, i.e., ‘to evade the process of the court.’ [Id., at p. 522, emphasis added.]
We conclude the trial court here should have sua sponte instructed the jury on the necessary specific intent. The court’s failure to instruct on the element of specific intent denied Wesley due process and was error of constitutional dimension. (Id., at p. 524.)
If Penal Code section 273.5 were a general intent crime the fact that appellant intended to hit Ms. C would suffice. However, since it is a specific intent crime, appellant must necessarily have intended to cause her injury. He must have had the specific intent to achieve the additional consequence of causing “corporal injury resulting in a traumatic condition” [Footnote 1]. This specific intent requirement distinguishes this crime from battery, a general intent crime where no specific intent to injure is required.
In People v. Rodriguez (1992) 5 Cal.App.4th 1398, the court was called upon to determine whether a conviction of Penal Code section 273.5 was a crime of “moral turpitude“ sufficient to allow impeachment of the witness. The court stated:
We perceive the crux of Castro‘s definition to be the requisite animus of the felon: Must the crime be attended by knowledge of circumstances and a conscious decision to exploit them sufficient to signify readiness to do evil? To violate Penal Code section 273.5 the assailant must, at the very least, have set out … to injure a person [who falls within the statutory definition.] To have joined in, and thus necessarily be aware of, that special relationship, and then to violate it willfully and with intent to injure, necessarily connotes the general readiness to do evil that has been held to define moral turpitude. (Id., at p. 1402, emphasis added, citations omitted.)
People v. Northrup (1982) 132 Cal.App.3d 1027 held that Penal Code section 273a, felony child abuse, was a general intent crime. Penal Code section 273a states in relevant part: “Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain…shall be punished…” The language differs from Penal Code section 273.5 by including those situations “likely to produce” injury. This is broader than the language of Penal Code section 273.5, which limits the offense to situations where the resulting injury was intended. The phrase “likely to produce” makes the child abuse statute more amenable to construction as a general intent crime.
In Northrup, supra, the court held that appellant had waived the right to complain about the use of CALJIC 1.20 since defense counsel joined in the prosecutor’s request for the instruction. In dictum, the court added that it was not error to give CALJIC 1.20 and acknowledged that “willful” as used in the child abuse statutes means “purposeful” or “with knowledge of the consequences”. (Id., at p. 1039.) This is ill-considered reasoning because it contradicts CALJIC 1.20 which specifically eliminates the requirement that defendant have any intent to injure another.
The intent required for felony child abuse may be distinguished from that required for the crime of spousal abuse by comparing the language of the two statutes. Felony child abuse only requires that the willful act be “likely to produce” harm, whereas spousal abuse requires the willful act to produce a corporeal injury resulting in a traumatic condition. The definition requires that the act “achieve some additional consequence” or a “future consequence concerning the restricted action”. (People v. Hood, supra; People v.Dollar, supra). Even if the court does not conclusively find that Penal Code section 273.5 is a specific intent crime, it is at least ambiguous and pursuant to the rules of statutory construction in criminal cases this ambiguity must be resolved in defendant’s favor. (People v. Davis (1981) 29 Cal.3d 814, 828.) “The defendant is entitled to the benefit of every reasonable doubt, whether it arise out of a question of fact, or as to the true interpretation of words or the construction of language used in a statute.” (In re Tartar (1959) 52 Cal.2d 250, 257). “…petitioner must be given the benefit of every reasonable doubt as to whether the statute was applicable to him”. (In re Zerbe (1964) 60 Cal.2d 666, 668). The same rule is applied in Federal practice where it is known as the “rule of lenity”. (United States v. Batchelder (1979) 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755).
Should the court not find Penal Code section 273.5 a specific intent crime, the statute at least requires knowledge that corporal injury will occur, requiring a definition of “willful” similar to the language found in CALJIC 16.170 (misdemeanor child abuse instruction) where it requires the defendant have “knowledge of the consequences”. CALJIC 1.20 would therefore be misleading because it expressly states that “willfully” excludes any intent to injure. Having knowledge of the consequences, “corporal injury resulting in traumatic condition”, is to say that defendant intended the act (the battery) to result in the consequence.
The requirement of knowledge was addressed in In re Lopez (1986) 188 Cal.App.3d 592. That case involved a charge of Penal Code section 148, willfully resisting arrest, which reads, in relevant part: “Every person who willfully resists, delays, or obstructs any public officer or peace officer, in the discharge or attempt to discharge any duty of his office…is punishable…”. The court found that for defendant to be guilty of the crime he must have known it was a police officer he was resisting, even though section 148 does not expressly make knowledge an element. “If a person has knowledge, or by the exercise of reasonable care, should have knowledge, that he is being arrested by a peace officer, it is the duty of such person to refrain from using force or any weapon to resist such arrest.” (Id., at p. 596.) “Knowledge refers to awareness of the particular facts proscribed in criminal statutes”. (Id., at p. 598, emphasis added.)
In the case at bar, the jury should have been instructed that appellant must have had an awareness that the illegal act fell within the terms of the statute. Otherwise it would differ little from a simple battery. Penal Code section 273.5 expressly states that a corporal injury must occur resulting in a traumatic condition. Appellant must have had to know that the injury would occur, in order to fall within the ambit of the section.
However, the jury was instructed that they need only find that appellant had a general intent to violate the law, as that instruction is embodied in CALJIC 3.30. (CT 100.) Since corporal injury to a spouse is a specific intent crime, CALJIC 3.31 or 3.31.5 should have been given, thus instructing the jury that appellant could only be found guilty if it was proved that he intended to cause injury. In the alternative, should the court find Penal Code section 273.5 is a general intent crime, the jury should have had the benefit of a special instruction like those used in child abuse cases. The use of CALJIC 1.20 is inconsistent with either of these propositions.
A presumption of intent is unconstitutional because it removes from the prosecution the duty to prove every element of the crime charged. (Francis v. Franklin (1985) 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344; Carella v. California (1989) 491 U.S. 263, 109 S.Ct. 2419, 105 L.Ed.2d 218) This principle requires the court to instruct on the required intent for any charged crime. (People v. Maciel (1925) 71 Cal.App. 213.)
People v. Garcia (1984) 31 Cal.3d 539 summarizes the standard of review applicable to an error in instructing the jury:
…instructions or omissions which deny a defendant each element of a charged offense are necessarily reversible error…[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.. [Id., at p. 550, internal quotations omitted, emphasis original.]
The United States Supreme Court decisions make it clear that when intent is an element of a crime, an instruction directing the jury to find or conclusively presume intent denies due process, regardless of the weight of the evidence…Thus a failure to instruct on the element of intent, because it would permit the jury to find guilt without proof of intent beyond a reasonable doubt, would constitute a denial of due process. [Id., at p. 551.]
Citing Connecticut v. Johnson (1983) 460 U.S. 73, the Garcia court noted that exceptions to the reversible per se rule would exist:
‘if the erroneous instruction was given in connection with an offense for which the defendant was acquitted and if the instruction had no bearing on the offense for which he was convicted’, and, ‘if the defendant conceded the issue of intent’. [Id., at p.554-555.]
Neither of these exceptions exists in the case at bar. Appellant was not acquitted but rather was found guilty of Penal Code section 273.5. Intent was not conceded. Not only did appellant not testify, the victim denied that appellant intended to hurt her, and asserted that he had not struck her. (RT 136.)
The Garcia court went on to indicate further exceptions to the reversible per se rule. Citing People v. Sedeno (1974) 10 Cal.3d 703, the court stated:
‘…in some circumstances it is possible to determine that although an instruction…was erroneously omitted, the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions. In such cases the issue should not be deemed to have been removed from the jury’s consideration since it has been resolved in another context, land there can be no prejudice to the defendant…’ [Id., at p. 555.]
This exception has no application to the case at bar. The jury was incorrectly instructed that they need not find that appellant intended to injure Ms. C. There was no other instruction that could have cured this defect, nor was another given.
Finally, there is a last exception to the reversible per se rule, inapplicable to the case at bar, termed the Cantrell-Thornton exception. This states that instructions are not required on issues and questions not raised by the evidence.
An example of an exception being applied may be found in People v. Warren (1959) 175 Cal.App.2d 233. Recognizing the importance of appropriate jury instructions, the court stated at p. 239: “It is the rule that where the lawfulness of the act depends upon a specific intent, to instruct upon general as well as specific intent normally would confuse the jury and is error”. In that case, auto theft was charged and a general intent instruction given. Although the court found this to be error, it was not prejudicial because defendant stipulated at trial that the car was stolen, leaving only the issue as to whether or not it was defendant who stole it. In the case at bar, identity is not an issue, nor is the fact that Ms. C was hit by appellant. The issue involved whether appellant was whether she sustained sufficient injuries to meet the statutory definition, and whether appellant intended to inflict such injuries. To be guilty of more than a battery he would need to have specifically intended an injury, thereby triggering an instruction on specific intent.
Intent was most definitely an issue in appellant’s case and he was prejudiced by the fact the jury was improperly instructed. [Footnote 2]
For the reasons given above, the failure to instruct the jury that appellant must have intended to inflict corporal injury on Ms. C is reversible per se, and the judgment of conviction on the Penal Code section 273.5 count must be reversed and remanded to the trial court.
Footnote 1: Penal Code section 273.5.
Footnote 2: The decision in People v. Flood (1998) 18 Cal.4th 470 does not alter this conclusion. The error in Flood concerned “an uncontested, peripheral element of the offense, which effectively was conceded by defendant, was established by overwhelming, undisputed evidence in the record, and had nothing to do with defendant‘s own actions or mental state ….“ (Flood, supra, 98 D.A.R. 7349, 7361.) Furthermore, Flood was limited to an analysis of federal due process, and did not consider the denial of the right to jury trial engendered by the failure to instruct on an element of the offense, as set forth in Carella, supra, 491 U.S. 263.