People v. Rocha

• Decision Date: 22 January 1971
• Docket Number: Cr. 14867
• Citation: 3 Cal.3d 893,92 Cal.Rptr. 172,479 P.2d 372
• Court: California Supreme Court
• Parties: , 479 P.2d 372 The PEOPLE, Plaintiff and Respondent, v. Jess Gomez ROCHA, Defendant and Appellant.

Page 172

92 Cal.Rptr. 172

3 Cal.3d 893, 479 P.2d 372

The PEOPLE, Plaintiff and Respondent, v. Jess Gomez ROCHA, Defendant and Appellant.

Cr. 14867.

Supreme Court of California In Bank.

Jan. 22, 1971.

Neil A. Helding, Hanford, under appointment by the Supreme Court, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., Charles P. Just, Joel S. Primes and Edward A. Hinz, Jr., Deputy Attys. Gen., for plaintiff and respondent.

WRIGHT, Chief Justice.

The principal question raised by this appeal is whether a violation of Penal Code section 245(a) (assault with a deadly weapon) is a crime requiring proof of general or specific intent. In holding that only a general criminal intent must be demonstrated, we hopefully eliminate the confusion on this issue which has developed throughout the courts of this state.

Defendant, Jess Rocha, was charged in an information with assault with a deadly weapon upon Pete Aguilar Piceno, a violation of Penal Code section 245, subdivision (a). A jury found him guilty as charged and the trial court entered judgment on the verdict and sentenced him to prison for a minimum term of six months pursuant to Penal Code section 1202b. Defendant appeals.

On March 17, 1968, Piceno was drinking with a friend, Mary Sanchez, in the Capitol Bar. Piceno went to the restroom and upon his return to the barroom discovered that defendant was occupying the bar stool that Piceno had previously been using. An argument concerning the seat ensued and Rocha invited Piceno to accompany him out the back door of the bar. Once outside, defendant unexpectedly turned and swung at Piceno with a knofe, succeeding in piercing his abdominal wall and liver. After at Piceno with a knife, succeeding in piercing

Rocha, testifying in his own behalf, gave a different version of the encounter contending that it was Piceno who originally had the knife and who suggested that they go outside. Claiming self-defense, Rocha testified that he had no intention of stabbing Piceno, but admitted forcing the knife from Piceno's hand and swinging once at the victim, who was wounded when he kicked at Rocha.

Rocha asserts as error the refusal of the trial court (1) to instruct that evidence of intoxication may be considered in determining whether Rocha had the requisite intent to commit assault with a deadly weapon; (2) to instruct that assault with a deadly weapon requires a specific intent to injure; (3) to permit the introduction of testimony relative to Rocha's reputation for not carrying a knife; and (4) to declare a mistrial after alleged prejudicial misconduct of the district attorney.

I. Voluntary Intoxication Issue

Voluntary intoxication is not a defense to assault with a deadly weapon. (People v. Hood, 1 Cal.3d 444, 82 Cal.Rptr. 618, 462 P.2d 370) In Hood we concluded that 'it would * * * be anomalous to allow evidence of intoxication to relieve a man of responsibility for the crimes of assault with a deadly weapon or simple assault, which are so frequently committed in just such a manner.' (People v. Hood, supra, at p. 458, 82 Cal.Rptr. at p. 627, 462 [479 P.2d 375] P.2d at p. 379.) Accordingly the trial court properly refused to instruct that the jury should consider the effect of intoxication upon Rocha's capability to form the requisite intent to commit assault with a deadly weapon. (See also People v. Seals, 1 Cal.3d 574, 82 Cal.Rptr. 873, 462 P.2d 993.)

II. Specific Intent Issue

Rocha's principal contention is that assault with a deadly weapon is a specific intent crime. In People v. Hood, supra, the issue of whether simple assault and assault with a deadly weapon are general or specific intent offenses was reexamined. Faced with the assertion that voluntary intoxication should be a defense to those crimes, we declined to categorize the intent requirement as either general or specific, but ruled that the 'nature of the requisite intent is such that it is not susceptible to negation through a showing of voluntary intoxication.' Nevertheless, our opinion of Hood has been interpreted, albeit with conflicting results, as being determinative of the issue. ¹

In People v. Hood, supra, 1 Cal.3d 444, 82 Cal.Rptr. 618, 462 P.2d 370, it was recognized that the terms, general and specific intent, are often indistinguishable when viewed in contexts other than the applicability of the defense of voluntary intoxication. ² Policy considerations, not the specific intent-general intent dichotomy, were the principal bases of that opinion. Since alcohol is so often a factor inducing simple assaults and assaults with a deadly weapon it would be anomalous to permit exculpation because of intoxication. However, an additional factor was the variance between the nature of the intent to commit a battery which has always been deemed a general intent and the intent to commit an assault for the purpose of causing a particular additional result (e.g., assault with intent to murder or rape). The latter intent has been labeled a specific intent.

The legislative history of Penal Code section 245 indicates that the Legislature differentiated assault with a deadly weapon from specific intent crimes. When the Penal Code was adopted in 1872 section 245 read, 'Every person who, with intent to do bodily harm,' commits an assault with a deadly weapon is guilty of a felony. ³ All reference to intent was deleted from the section in 1873 when it was amended to its present form. In People v. Turner, 65 Cal. 540, 542, 4 P. 553, the court rejected defense counsel's argument that the 1873 amendment had not changed the essential elements of the crime and stated that it was unnecessary for the indictment to charge or for the jury to find that the assault was made with the intent to cause great bodily harm.

Some earlier cases held that because of an assumed failure of the Legislature to include intent as a requirement of the crime, a violation of Penal Code section 245 could be predicated upon mere reckless conduct. ⁴ In People v. Carmen, 36 Cal.2d 768, 228 P.2d 281, we disapproved those cases and held that mere reckless conduct alone cannot constitute an assault. ⁵ It does not follow, however, that assault with a deadly weapon should be classified as a specific intent crime.

Traditionally, simple assault and assault with a deadly weapon have been referred to as 'general intent' crimes. ⁶ The mens rea of such offenses is established by showing 'an intent to perform an act of such a nature that the law declares its commission punishable as a criminal offense.' ⁷ The act must be committed wilfully but knowledge that it is unlawful or a belief that it is wrong need not be proven. We adhere to those cases that hold that assault with a deadly weapon is a general intent crime. It remains to define what that intent is. ⁸

An assault is an unlawful attempt, coupled with the present ability, to commit a violent injury on the person of another, or in other words, it is an attempt to commit a battery. (1 Witkin, Cal.Crimes (1963) § 255, p. 241; People v. McCaffrey, 118 Cal.App.2d 611, 258 P.2d 557.) Accordingly the intent for an assault with a deadly weapon is the intent to attempt to commit a battery, a battery being 'any willful and unlawful use of force or violence upon the person of another.' (Pen.Code, § 242.) We conclude that the criminal intent which is required for assault with a deadly weapon and set forth in the instructions ⁹ in the case at bench, 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. Given that intent it is immaterial whether or not the defendant intended to violate the law ¹⁰ or knew that his conduct was unlawful. The intent to cause any particular injury (People v. Carmen, supra, 36 Cal.2d 768, 776, 228 P.2d 281), to severely injure another, ¹¹ or to injure in the sense of inflicting bodily harm ¹² is not necessary.

In the case at bench there was ample evidence from which the jury could infer that the defendant had the intent to commit a battery upon the victim, Piceno, and the instructions given clearly informed the jury of the elements of assault with a deadly weapon. ¹³ (People v. Wilson, 66 Cal.2d 749, 765, 59 Cal.Rptr. 156, 427 P.2d 820.)

III. Reputation Issue

Rocha asserts further that evidence indicating that he was not known to carry a knife was improperly excluded. This contention is without merit. Joe Sanchez, the owner of the Capitol Bar, was asked, '(H)ave you ever seen Mr. Rocha with a knife?' After an offer of proof that defendant intended to demonstrate that he did not characteristically carry such a weapon, the People's objection to the question as irrelevant was sustained. Evidence of a person's reputation may be introduced to prove that on a specified occasion his conduct was in conformity with an established trait. (Evid.Code, § 1102.) However, no foundation was laid establishing that the witness was aware of defendant's general reputation nor was the question phrased in a manner designed to elicit proof of character, trait or custom. (People v. Carnavacci, 119 Cal.App.2d 14, 17, 258 P.2d 1121.)

Evidence that the witness had never seen Rocha carry a knife has minimal relevance to his conduct on the particular night in question. It was within the sound discretion of the trial court to exclude evidence of such slight probative value on the ground that its worth was outweighed by the probability that its introduction would necessitate undue consumption of time or mislead or confuse the jury. (Evid.Code, § 352.)

IV. Misconduct Issue

Rocha's final contention is that the district attorney committed prejudicial misconduct by asking him on cross-examination: 'Isn't it also a fact, Mr. Rocha, that you smoked a marijuana cigarette in back of the Capitol Bar--?' The trial court sustained defense counsel's prompt objection, and Rocha did not answer.

Rocha contends in effect that the district attorney...