People v. Hood

OPINION BY: TRAYNOR

On September 11, 1967, at about 2 a.m., defendant, his brother Donald, and a friend, Leo Chilton, all of whom had been drinking for several hours, knocked on the door of the house of Susan Bueno, defendant's former girlfriend, and asked if they could use the bathroom. Susan said no, but defendant forced his way in and started to hit her. He knocked her to the floor and kicked her. Donald Hood then took Susan aside, and defendant, Chilton, and Gene Saunders, a friend of Susan's who was staying at the house, went to the kitchen and sat down.

Gilbert A. Nielsen, Susan's next-door neighbor, was awakened by the sound of Susan's screams and called the police. Officers Elia and Kemper responded to his call. After talking to Nielsen, they went to Susan's house, knocked on the door, which was opened by Stella Gonzales, Susan's cousin, and asked if "Susie" was there. Miss Gonzales said, "Yes, just a minute," and in a few seconds Susan came running to the door crying. Officer Elia asked Susan if she had been beaten and who did it. She pointed to the kitchen and said, "They're in there right now." The two officers walked through the living room, where Susan, Susan's seven-year-old son Ronnie, and Stella remained, and went into the kitchen. There they observed defendant on the righthand side of the room leaning against a door. On the left side of the kitchen, the three other men were seated at a table. Officer Elia walked to the middle of the room and questioned the men at the table. Defendant interrupted the questioning and asked Officer Elia if he had a search warrant. Officer Elia replied that he did not need one since the person who rented the house had given him permission to enter. Defendant then directed a stream of obscenities at Officer Elia, who turned and, according to his testimony, started to place defendant under arrest for a violation of Penal Code section 415 (using vulgar, profane, or indecent language within the presence or hearing of women or children). He got no further than to say, "Okay fella, you are. . . ," when defendant swung at him with his fist. When Officer Kemper attempted to go to Officer Elia's assistance, Donald Hood jumped on him from behind. During the ensuing struggle, Officer Elia fell with defendant on top of him in a corner of a pantry adjoining the kitchen at the rear. While struggling on the floor, Officer Elia felt a tug at his gun belt and then heard two shots fired.

A third officer, Laurence Crocker, who had arrived at the house shortly after the other two officers, came into the kitchen as the scuffle between Officer Elia and defendant was beginning. After he had control of Donald Hood, he looked across the kitchen and saw defendant with a gun in his right hand. He testified that defendant pointed the gun towards Officer Elia's midsection and pulled the trigger twice.

Both Officers Crocker and Kemper testified that after the shots, defendant's arm came up over his head with the revolver in his hand. The struggle continued into the bathroom. Defendant was finally subdued when Officer Elia regained possession of the gun and held it against the side of defendant's neck. Officer Elia then noticed that defendant had shot him once in each leg.

That error was clearly prejudicial in this case. There was substantial evidence that defendant was drunk. He testified that he was not aware that he ever had the gun in his possession or fired it. Its discharge during the scuffle could be reconciled with an intent to kill, an intent to inflict only bodily injury, or with no intent to fire it at all. Had the jury not been given conflicting instructions on the significance of defendant's intoxication, it is reasonably probable that it would have reached a result more favorable to defendant on count III.

To guide the trial court on retrial, we consider the question of the effect of intoxication on the crime of assault with a deadly weapon.

The distinction between specific and general intent crimes evolved as a judicial response to the problem of the intoxicated offender. That problem is to reconcile two competing theories of what is just in the treatment of those who commit crimes while intoxicated. On the other hand, the moral culpability of a drunken criminal is frequently less than that of a sober person effecting a like injury. On the other hand, it is commonly felt that a person who voluntarily gets drunk and while in that state commits a crime should not escape the consequences.

Before the nineteenth century, the common law refused to give any effect to the fact that an accused committed a crime while intoxicated. The judges were apparently troubled by this rigid traditional rule, however, for there were a number of attempts during the early part of the nineteenth century to arrive at a more humane, yet workable, doctrine. The theory that these judges explored was that evidence of intoxication could be considered to negate intent, whenever intent was an element of the crime charged. As Professor Hall notes, however, such an exculpatory doctrine could eventually have undermined the traditional rule entirely, since some form of mens rea is a requisite of all but strict liability offenses. To limit the operation of the doctrine and achieve a compromise between the conflicting feelings of sympathy and reprobation for the intoxicated offender, later courts both in England and this country drew a distinction between so-called specific intent and general intent crimes.

Specific and general intent have been notoriously difficult terms to define and apply, and a number of text writers recommend that they be abandoned altogether. Too often the characterization of a particular crime as one of specific or general intent is determined solely by the presence or absence of words describing psychological phenomena -- "intent" or "malice," for example -- in the statutory language defining the crime. 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 achieve some additional consequence, the crime is deemed to be one of specific intent. There is no real difference, however, only a linguistic one, between an intent to do an act already performed and an intent to do that same act in the future.

The language of Penal Code section 22, drafted in 1872 when "specific" and "general" intent were not yet terms of art, is somewhat broader than those terms: "No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition. But whenever the actual existence of any particular purpose, motive, or intent is a necessary element to constitute any particular species or degree of crime, the jury may take into consideration the fact that the accused was intoxicated at the time, in determining the purpose, motive, or intent with which he committed the act." Even this statement of the relevant policy is no easier to apply to particular crimes. We are still confronted with the difficulty of characterizing the mental element of a given crime as a particular purpose, motive, or intent necessary to constitute the offense, or as something less than that to which evidence of intoxication is not pertinent.

Even if we assume that the presence or absence of words clearly denoting mental activity is a valid criterion for determining the significance of intoxication, our present problem is not resolved. The difficulty with applying such a test to the crime of assault or assault with a deadly weapon is that no word in the relevant code provisions unambiguously denotes a particular mental element, yet the word "attempt" in Penal Code section 240 strongly suggests goal-directed, intentional behavior. This uncertainty accounts for the conflict over whether assault is a crime only of intention or also of recklessness.

We need not reconsider our position in Carmen that an assault cannot be predicated merely on reckless conduct. Even if assault requires an intent to commit a battery on the victim, it does not follow that the crime is one in which evidence of intoxication ought to be considered in determining whether the defendant had that intent. It is true that in most cases specific intent has come to mean an intention to do a future act or achieve a particular result, and that assault is appropriately characterized as a specific intent crime under this definition. An assault, however, is equally well characterized as a general intent crime under the definition of general intent as an intent merely to do a violent act. Therefore, 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. Since the definitions of both specific intent and general intent cover the requisite intent to commit a battery, the decision whether or not to give effect to evidence of intoxication must rest on other considerations.

A compelling consideration is the effect of alcohol on human behavior. A significant effect of alcohol is to distort judgment and relax the controls on aggressive and anti-social impulses. Alcohol apparently has less effect on the ability to engage in simple goal-directed behavior, although it may impair the efficiency of that behavior. In other words, a drunk man is capable of forming an intent to do something simple, such as strike another, unless he is so drunk that he has reached the stage of unconsciousness. What he is not as capable as a sober man of doing is exercising judgment about the social consequences of his acts or controlling his impulses toward anti-social acts. He is more likely to act rashly and impulsively and to be susceptible to passion and anger. It would therefore 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.

Those crimes that have traditionally been characterized as crimes of specific intent are not affected by our holding here. The difference in mental activity between formulating an intent to commit a battery and formulating an intent to commit a battery for the purpose of raping or killing may be slight, but it is sufficient to justify drawing a line between them and considering evidence of intoxication in the one case and disregarding it in the other. Accordingly, on retrial the court should not instruct the jury to consider evidence of defendant's intoxication in determining whether he committed assault with a deadly weapon on a peace officer or any of the lesser assaults included therein.

The judgment is reversed.