People v. Czahara

• Decision Date: 26 August 1988
• Docket Number: No. A039677,A039677
• Citation: 250 Cal.Rptr. 836,203 Cal.App.3d 1468
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Michael Andrew CZAHARA, Defendant and Appellant.

Page 836

250 Cal.Rptr. 836

203 Cal.App.3d 1468

The PEOPLE of the State of California, Plaintiff and Respondent, v. Michael Andrew CZAHARA, Defendant and Appellant.

No. A039677.

Court of Appeal, First District, Division 5, California.

Aug. 26, 1988.

Corinne S. Shulman, Hydesville (Court-appointed), for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., John H. Sugiyama, Asst. Atty. Gen., David D. Salmon, Herbert F. Wilkinson, Supervising Deputy Atty. Gen., for plaintiff and respondent.

LOW, Presiding Justice.

We hold here that a jury should not be instructed on transferred intent to kill when a defendant is charged with multiple attempted murders arising from a single act.

Michael Andrew Czahara appeals his convictions for the attempted murders of Carole Christie and Ronald Johnson. (Pen.Code, §§ 187, 664.) We hold that the jury instruction on transferred intent was erroneous and prejudicial in the circumstances of this case and reverse the conviction for attempted murder of Johnson, but affirm the conviction for attempted murder of Christie.

Carole Christie met Czahara in March 1986, and they began dating in April or May. As the relationship developed, they discussed marriage and agreed to be sexually faithful to each other. Christie, however, began to doubt Czahara's fidelity when she noticed a piece of unfamiliar lingerie hanging on his bathroom door. In late July, Christie began dating Ron Johnson. On September 14, 1986, Christie told Czahara that she did not want to see him any more. Czahara threatened to kill Christie and himself. Christie reported the threat to police and obtained a restraining order against Czahara.

On September 19, Christie was at Johnson's house when she saw Czahara drive slowly by, looking in the windows. She called the police and Johnson drove her to her apartment. After Johnson returned home, Czahara called him on the telephone and said, "Send Carole out or I'm coming in." Christie drove to Johnson's house to pick him up to go somewhere safe. Johnson came out of his house and began to sit down in the passenger's seat. At the same time, Czahara walked quickly toward the driver's side of the car, pointed a handgun directly at Christie and, from a distance of five or six feet, shot at least twice. Christie and Johnson were both injured, and their injuries were stipulated to constitute great bodily injury.

Czahara was convicted of two counts of attempted murder and two counts of assault with a deadly weapon (Pen.Code, § 245). Allegations of personal use of a firearm (Pen.Code, § 12022.5) and great bodily injury (Pen.Code, § 12022.7) were found true as to each count. The court imposed the aggravated term of nine years for the attempt on Carole Christie's life (count one), and added a three-year great bodily injury enhancement. A concurrent term of three years and four months (including bodily injury enhancement) was imposed for the attempted murder of Ronald Johnson (count three). Sentences of four years each for the two assaults (counts two and four) were stayed pursuant to Penal Code section 654. The weapon use enhancements were not imposed.

I

Over defense objection the court gave jury instruction number 2, which read: "When one attempts to kill a certain person, but by mistake or inadvertence injures a different person, the crime, if any, so committed is the same as though the person originally intended to be killed had been injured." The instruction was a modification of CALJIC No. 8.65 (4th ed. 1979), which states the principle of transferred intent for homicide. Czahara contends that the transferred intent rule was inapplicable here because the intended victim, Carole Christie, was injured in the attempt.

The California Supreme Court has on several occasions approved the rule of transferred intent in homicide cases. (People v. Sears (1970) 2 Cal.3d 180, 189, 84 Cal.Rptr. 711, 465 P.2d 847; People v. Sutic (1953) 41 Cal.2d 483, 491-492, 261 P.2d 241; People v. Suesser (1904) 142 Cal. 354, 366-367, 75 P. 1093.) The high court has not, however, considered application of the doctrine to homicides in which the intended victim was also killed or to attempted homicides in which the intended victim was injured in the attempt.

Two Court of Appeal panels have considered the question whether transferred intent applies where both the intended and unintended victims of an assault die. In People v. Carlson (1974) 37 Cal.App.3d 349, 112 Cal.Rptr. 321, the defendant was convicted of voluntary manslaughter for killing his wife and murder for the unintentional death of their unborn child. (Id., at pp. 351-352, 112 Cal.Rptr. 321.) Holding that the murder conviction could not be supported under a felony-murder theory, the court next considered whether the defendant could be convicted of manslaughter of the fetus on a theory of transferred intent. (Id., at pp. 353-356, 112 Cal.Rptr. 321.) The court stated that the law would transfer the defendant's felonious intent from the mother to the fetus, adding that "there can be no doubt that the doctrine of 'transferred intent' applies even though the original object of the assault is killed as well...." ( Id., at p. 357, 112 Cal.Rptr. 321.) Nevertheless, the court held that the defendant could not be convicted of manslaughter of the fetus since the manslaughter statute requires the victim be a "human being." (Id., at pp. 357-358, 112 Cal.Rptr. 321.)

In People v. Birreuta (1984) 162 Cal.App.3d 454, 208 Cal.Rptr. 635, the defendant had shot into a dark room, killing his wife and a neighbor. He claimed that he was shooting only at the neighbor, and that he did not even know his wife was present. ( Id., at p. 458, 208 Cal.Rptr. 635.) The court held that the giving of a transferred intent instruction (CALJIC No. 8.65) was error where the intended victim was also killed. (Id., at pp. 460-461, 208 Cal.Rptr. 635.) The holding was based on the purpose of the transferred intent rule as the court saw it, "to insure the adequate punishment of those who accidentally kill innocent bystanders, while failing to kill their intended victims." ( Id., at p. 460, 208 Cal.Rptr. 635.) When the intended victim is killed the killer can be punished for his full culpability with regard to the intended death, while any accidental deaths or injuries are prosecuted and punished according to the culpability normally assessed for those acts. (Ibid.) Under those circumstances, the court concluded, there is no need for transferred intent. The Birreuta court declined to follow what it characterized as dictum in Carlson. (Id., at p. 458, 208 Cal.Rptr. 635.)

In other cases the Courts of Appeal have applied the doctrine where both the intended and unintended victim were killed (People v. Flores (1986) 178 Cal.App.3d 74, 79, 81-82, 223 Cal.Rptr. 465) or injured (People v. Neal (1950) 97 Cal.App.2d 668, 672-673, 218 Cal.Rptr. 556; People v. Rothrock (1937) 21 Cal.App.2d 116, 118-119, 68 P.2d 364). In none of those opinions, however, did the courts consider or discuss any challenge to the applicability of the transferred intent doctrine. " '[C]ases are not authority for propositions not considered therein.' " (Isbell v. County of Sonoma (1978) 21 Cal.3d 61, 73, 145 Cal.Rptr. 368, 577 P.2d 188.)

The transferred intent rule for homicide was adopted in this state in People v. Suesser, supra, 142 Cal. 354, 75 P. 1093. The court quoted from an encyclopedia which, examining the conflicting authorities regarding a victim who is killed "instead" of the one intended, stated, "The better doctrine is that a homicide so committed is as much murder in the first degree as it would have been had the fatal blow reached the person for whom intended...." ( Id., at p. 366, 75 P. 1093; quoting 21 American & English Encyclopedia of Law (2d ed.) p. 165.) The court then approved an instruction quoted from a Washington state case: "[W]here a person purposely and of his deliberate and premeditated malice attempts to kill one person, but by mistake or inadventure kills another instead, the law transfers the felonious intent from the object of his assault, and the homicide so committed is murder in the first degree." ( Id., at p. 367, 75 P. 1093, quoting State v. McGonigle (1896) 14 Wash. 594, 45 P. 20.) As the use of "instead" and the references to "homicide" in the singular indicate, the Suesser court, like the authorities it drew on, had in mind the assailant who misses the intended victim, and therefore can not be prosecuted for the killing he intended. The transferred intent rule serves to ensure that he is punished to the full extent of his culpability.

Transferred intent is a legal fiction, used to reach what is regarded with virtual unanimity as a just result: when an assailant, through "bad aim" or other mistake, kills the wrong person, he is just as culpable, and should be punished to the same extent, as if he had hit the intended mark. (LaFave & Scott, Criminal Law (1972) § 35, p. 253.) Noting that the rule is "an unsound explanation [for] a very sound conclusion," the authors of another treatise argue that it should not apply at all to attempted homicides, as the assailant can be punished directly for an attempt on the intended victim: "If, without justification, excuse or mitigation D with intent to kill A fires a shot which misses A but unexpectedly inflicts a non-fatal injury upon B, D is guilty of an attempt to commit murder,--but the attempt was to murder A whom D was trying to kill and not B who was hit quite accidentally. And so far as the criminal law is concerned there is no transfer of this intent one to the other so as to make D guilty of an attempt to murder B." (Perkins & Boyce, Criminal Law (1982) § 8, pp. 924-925, fn. omitted.)

The purpose of the transferred intent rule--to ensure that prosecution and punishment accord with culpability--would not be served by convicting a defendant of two or more attempted murders for a...