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PG IV(B) What Intent is Required for Assault?
Assault is defined by statute as “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another. (PC 240.) Because an attempt to commit a crime requires “a specific intent to commit the crime” (1 Witkin and Epstein, Calif. (Law 2d Ed.) §§ 143-152; see also CJ 6.00) it would seem logical, if not compelling, that assault requires a specific intent to commit a violent injury upon another. However, the case law has not taken such a logical approach to this question.
In People v. Hood (69) 1 C3d 444 [82 CR 618], the court discussed the questions of specific and general intent at length and concluded that “whatever reality the distinction between specific and general intent may have in other contexts, the difference is chimerical in the case of assault with a deadly weapon or simple assault … the definitions of both specific intent and general intent cover the requisite intent to commit a battery ….” (Hood 1 C3d at 458.) [Hood went on to conclude that intoxication could not negate the requisite intent for assault as a matter of public policy. (Ibid.)]
In People v. Rocha (71) 3 C3d 893 [92 CR 172] the defendant argued that assault is a specific intent crime and the jury must be instructed upon that specific intent as an element of the offense. Despite Hood’s conclusion that there is no meaningful distinction between specific and general intent in the context of assault, the Supreme Court purported to resolve the issue anyway. Predictably, such an endeavor created a confusing decision.
The Rocha court initially concluded that an assault is “an attempt to commit a battery.” (Rocha 3 C3d at 899.) Hence, the court stated that “the intent for an assault with a deadly weapon is the intent to attempt to commit a battery, a battery being ‘any wilful and unlawful use of force or violence upon the person of another.’” (Ibid.) However, the court went on to conclude that the criminal intent which is required for assault “is the general intent to wilfully commit an act the direct, natural and probable consequences of which if successfully completed would be the injury to another.” (Ibid.)
Rocha compounds the confusion because characterizing assault as purely a general intent crime removes any consideration of the defendant’s motive. And, many cases (including Rocha) recognize that, because assault requires an intent to apply physical force (e.g., Hood 1 C3d at 458), the defendant’s asserted motive is relevant to a determination of guilt or innocence. (People v. Garcia (84) 159 CA3d 781, 789 [205 CR 722]; see also Rocha 3 C3d at 898, fn 5.) Hence, a conviction of assault may not be grounded upon an intent to frighten (People v. Wolcott (83) 34 C3d 92, 99 [192 CR 748]) or upon mere recklessness. (People v. Brown (89) 212 CA3d 1409, 1419 [261 CR 262]). (See also People v. Carmen(51) 36 C2d 768, 775-76 [228 P2d 281] [disapproving cases which held that mere reckless conduct alone can constitute assault].) When the evidence supports such a theory, the defendant has the right, upon request, to an instruction which explains this to the jury and which requires the prosecution to prove the intent to apply physical force beyond a reasonable doubt. (Garcia 159 CA3d at 787.) “Thus a person who recklessly exhibits a weapon in a threatening manner which accidentally discharges injuring another does not commit an assault with a deadly weapon, but would be guilty of [brandishing (PC 417)].” (Rocha 3 C3d at 898 fn 5.) [Note: Brandishing (PC 417) is not a lesser included offense of ADW (PC 245) (People v. Escarcega (74) 43 CA3d 391, 396 [117 CR 595]) but presumably under appropriate circumstances would be a lesser related offense.]
In People v. Colantuono (94) 7 C4th 206, 215 [26 CR2d 908], the Supreme Court attempted to end the acknowledged confusion about the intent required for assault. But the opinion produced by the majority is full of opaque language, internal contradictions and other impediments to ready understanding. The resulting confusion is reflected in the fact that the two concurring opinions reached opposite conclusions as to what the majority opinion actually said.
Nevertheless, the bottom line appears to be the following: assault is a general intent crime which requires an intent to commit a “violent act” rather than a specific intent or purpose to injure the victim. (But see separate opinions of Mosk(7 C4th at 222) and Kennard (7 C4th at 225).) A violent act is one which is likely to result in a touching of the victim.
