People v. Scott

• Decision Date: 19 December 1996
• Docket Number: No. S048572,S048572
• Citation: 59 Cal.Rptr.2d 178,927 P.2d 288,14 Cal.4th 544
• Court: California Supreme Court
• Parties: , 927 P.2d 288, 96 Cal. Daily Op. Serv. 9229, 96 Daily Journal D.A.R. 15,194 The PEOPLE, Plaintiff and Respondent, v. Damien SCOTT et al., Defendants and Appellants.

Page 178

59 Cal.Rptr.2d 178

14 Cal.4th 544, 927 P.2d 288, 96 Cal. Daily Op. Serv. 9229,

96 Daily Journal D.A.R. 15,194

The PEOPLE, Plaintiff and Respondent, v. Damien SCOTT et al., Defendants and Appellants.

No. S048572.

Supreme Court of California.

Dec. 19, 1996.

Gordon S. Brownell, St. Helena, and Robert E. Boyce, San Diego, under appointments by the Supreme Court, and Laura Schaefer, San Diego, for Defendants and Appellants.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant Attorney General, Linda C. Johnson and Sharon Wooden Richard, Deputy Attorneys General, for Plaintiff and Respondent.

BROWN, Justice.

A jury convicted defendants Damien Scott and Derrick Brown of various crimes for their part in a drive-by shooting which resulted in the death of one person and injury to several others. We must decide in this case whether the doctrine of transferred intent may be used to assign criminal liability to a defendant who kills an unintended victim when the defendant is also prosecuted for the attempted murder of an intended victim.

Under the classic formulation of California's common law doctrine of transferred intent, a defendant who shoots with the intent to kill a certain person and hits a bystander instead is subject to the same criminal liability that would have been imposed had " 'the fatal blow reached the person for whom intended.' " (People v. Suesser (1904) 142 Cal. 354, 366, 75 P. 1093 (hereafter Suesser).) In such a factual setting, the defendant is deemed as culpable as if he had accomplished what he set out to do.

Here, it was established at trial that defendants fired an automatic weapon into a public park in an attempt to kill a certain individual, and fatally shot a bystander instead. The case presents the type of factual setting in which courts have uniformly approved reliance on the transferred intent doctrine as the basis of determining a defendant's criminal liability for the death of an unintended victim. Consistent with a line of decisions beginning with Suesser nearly a century ago, we conclude that the jury in this case was properly instructed on a transferred intent theory of liability for first degree murder.

Moreover, defendants' exposure to a murder conviction based on a transferred intent theory of liability was proper regardless of the fact they were also charged with attempted murder of the intended victim. Contrary to what its name implies, the transferred intent doctrine does not refer to any actual intent that is "used up" once it has been employed to convict a defendant of a specific intent crime against an intended victim. Rather, the doctrine of transferred intent connotes a policy. As applied here, the transferred intent doctrine is but another way of saying that a defendant who shoots with an intent to kill but misses and hits a bystander instead should be punished for a crime of the same seriousness as the one he tried to commit against his intended victim.

In this case, defendants shot at an intended victim, missed him, and killed another person instead. In doing so, defendants committed crimes against two persons. Defendants' criminal liability for causing the death of the unintended victim may be determined on a theory of transferred intent in accordance with the classic formulation of the doctrine under California common law. Their criminal liability for shooting at the intended victim with an intent to kill is that which the law assigns.

The Court of Appeal correctly concluded that the trial court's instruction to the jury on transferred intent as it related to the charge of murder was proper. We affirm the judgment of the Court of Appeal affirming, with minor modification, the judgments of conviction.

I. BACKGROUND

In May 1991, Calvin Hughes became the target of a family vendetta. While Hughes and Elaine Scott were romantically involved, Hughes and his sister, Eugenia Griffin, shared Scott's apartment. After the bloom faded from the romance, relations between Hughes and Scott became increasingly acrimonious and one night Hughes and Scott got into a physical altercation. Defendant Damien Scott and codefendant Derrick Brown, Scott's adult sons, came to her aid and forced Hughes and Griffin out of the apartment.

A few days later, Hughes borrowed Griffin's car and, accompanied by his friend Gary Tripp, returned to Scott's place to retrieve his personal belongings. When Scott attempted to bar his entry, Hughes forced his way into the apartment and gathered his things. On his way out, he heard Scott threaten to page her sons.

Hughes and Tripp drove to Jesse Owens Park in South Los Angeles to meet Griffin. Nathan Kelley and his teenage son, Jack Gibson, had parked nearby. As Hughes stood beside Kelley's car, talking to him through the open window, three cars entered the park. Gunfire erupted. Defendant Scott and codefendant Brown, riding in the first car, sprayed the area with bullets. Hughes took cover behind the front bumper of Kelley's car. When there was a lull in the shooting, Hughes sprinted toward the park gym. A renewed hail of gunfire followed him. A bullet hit the heel of his shoe. The shooting stopped when Hughes took cover behind the gym. The gunmen left the park.

In the aftermath, the victims discovered both Kelley's and Griffin's vehicles had been riddled with bullets; Gary Tripp had been shot in the leg and buttocks; and Jack Gibson had been killed when a bullet struck him in the head.

In an amended multicount information, defendant Scott and codefendant Brown were jointly charged with the murder of Jack Gibson (Pen.Code, § 187, subd. (a); all further statutory references are to this code); attempted murder of Calvin Hughes and Gary Tripp (§§ 664, 187, subd. (a)); ¹ and assault with a firearm on Calvin Hughes, Nathan Kelley, Gary Tripp, and Eugenia Griffin. (§ 245, subd. (a)(2).) As to each count, the information alleged defendants personally used a firearm within the meaning of section 12022.5, subdivision (a)(1). It was further alleged, as to the murder and attempted murder counts, that defendants were armed with a firearm within the meaning of section 12022, subdivision (a)(1).

At a second trial following mistrial due to a deadlocked jury, the prosecutor sought to establish that Jack Gibson was the unintended victim of defendants' premeditated and deliberate intent to kill Calvin Hughes. At the prosecution's request, the trial court instructed the jury on transferred intent using a modified version of CALJIC No. 8.65. The court stated as follows: "As it relates to the charge of murder, where one attempts to kill a certain person, but by mistake or inadvertence kills a different person, the crime, if any, so committed is the same as though the person originally intended to be killed, had been killed." The jury was also instructed on second degree express malice and implied malice murder.

The jury convicted both defendants of second degree murder, two counts of attempted murder, and two counts of assault with a firearm. It found true all of the firearm allegations. The jury acquitted defendants of two counts of assault with a firearm that had been charged in the alternative to the counts of attempted murder.

Defendants appealed their convictions and, in a published decision, the Court of Appeal modified and affirmed the judgments of conviction. In relevant part, the Court of Appeal rejected defendants' argument that a transferred intent instruction only applies when the prosecution elects to charge the defendant with first degree murder of the unintended victim, and not also with attempted murder of the intended victim.

We granted defendant Scott's petition for review.

The jury convicted defendants of second degree murder for fatally shooting the unintended victim. It cannot be determined from the verdicts, however, whether the jury relied on the transferred intent instruction to convict defendants of second degree murder on an express malice theory, or whether it reached that verdict through a finding of implied malice. Consequently, it is necessary to decide whether a transferred intent instruction was properly given in this case.

II. DISCUSSION

The common law doctrine of transferred intent was applied in England as early as the 16th century. (See The Queen v. Saunders & Archer (1576) 75 Eng.Rep. 706, 708 ["And when death followed from his act, although it happened in another person than her whose death he directly meditated, yet it shall be murder in him...."].) The doctrine became part of the common law in many American jurisdictions, including that of California, and is typically invoked in the criminal law context when assigning criminal liability to a defendant who attempts to kill one person but accidentally kills another instead. (See 1 LaFave & Scott, Substantive Criminal Law (1986) § 3.12(d), p. 399; Perkins & Boyce, Criminal Law (3d ed. 1982) § 8, p. 921, fn. 1.) Under such circumstances, the accused is deemed as culpable, and society is harmed as much, as if the defendant had accomplished what he had initially intended, and justice is achieved by punishing the defendant for a crime of the same seriousness as the one he tried to commit against his intended victim. (Gladden v. State (Ct.Spec.App.1974) 273 Md. 383, 330 A.2d 176, 188; People v. Czahara (1988) 203 Cal.App.3d 1468, 1474, 250 Cal.Rptr. 836 (hereafter Czahara) [doctrine of transferred intent used to reach what is uniformly regarded as just result]; see also Ritz, Felony Murder, Transferred Intent, and the Palsgraf Doctrine in the Criminal Law (1959) 16 Wash. & Lee L.Rev. 169, 171.) Under the classic formulation of the common law doctrine of transferred intent, the defendant's guilt is thus "exactly what it would have been had the blow fallen upon the intended victim instead of the bystander." (40 Am.Jur.2d, Homicide, § 11, p. 302; see also State v. Clark (1898) 147 Mo. 20, 47...