Overcoming the Surprisingly Low Bar of “Intent” in Assault Cases

“Assault” charges are one of the most common types of alleged criminal violations. Most people would assume that in order for assault charges to be filed, you must have intended to strike or hurt someone. But, as the jury instructions and case law make clear, you actually do not need to intend to harm anyone in order to be guilty of assault as a “defendant”  – a person charged with a crime.

According to the Judicial Council of California Criminal Jury Instructions, known as “CALCRIM”, the elements of the crime of Assault with A Deadly Weapon requires that the prosecution must prove that:

1)The defendant did an act with a deadly weapon that by its nature would directly and probably result in the application of force to a person;

2)The defendant did that act willfully;

3)When the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone;

4)When the defendant acted, he had the present ability to apply force with a deadly weapon.

5)The defendant did not act in self-defense or in defense of someone else

Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.

The jury instructions go on to define and delineate nuances to the meanings of how these elements must be applied:

The terms application of force and apply force mean to touch in a harmful or offensive manner. The slightest touching can be enough if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind.

The touching can be done indirectly by causing an object or someone else to touch the other person.

The People are not required to prove that the defendant actually touched someone.

The People are not required to prove that the defendant actually intended to use force against someone when he acted.

No one needs to actually have been injured by defendant’s act. But if someone was injured, you may consider that fact, along with all the other evidence, in deciding whether the defendant committed an assault, and if so, what kind of assault it was.

Voluntary intoxication is not a defense to assault.

(See CALCRIM 875; Cal. Penal Code §§ 240, 245(a)(1)).

As the instructions make clear, no touching is required, and the defendant doesn’t need to intend to actually use force. Instead, the defendant need only be capable of using force, have the ability to do so, and be aware of circumstances that would allow a reasonable person to be aware that the application of force would likely happen by their actions. If this seems confusing, that’s because the Courts of Appeal in California have changed the definition of what a defendant must know and intend over time, making the law governing assault to be more complex that it originally was.

Despite modifications to the intent requirement for assault after the case of People v. Williams (2001) 26 Cal.4th 779, neither recklessness nor criminal negligence are not sufficient to establish the intent requirement for assault.

“Historically, assault has been defined as an attempted battery.” (See People v. Wright (2002) 100 Cal.App.4th 703, citing People v. Rocha (1971) 3 Cal.3d 893, 899; People v. Hood (1969) 1 Cal.3d 444, 458.). The California Supreme Court in People v. Williams (2001) 26 Cal.4th 779, rejected this construction that the defendant must intend to commit battery, instead holding that assault does not require a “subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another.” (Williams, supra, 26 Cal.4th at 790.) The foreseeability of the consequences is judged by the objective `reasonable person’ standard”. (People v. Aznavoleh (2012) 210 Cal.App.4th 1181, 1190).

Nonetheless, “[M]ere recklessness or criminal negligence” is not sufficient to establish the intent element for the crime of assault. (Williams, supra, 26 Cal.4th at 788). Instead, the defendant “must be aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct. He may not be convicted based on facts he did not know but should have known.” (Id.)

For instance, and by example, cases since the Williams case was decided upholding violations of assault with a deadly weapon involving vehicles have consistently shown conduct wherein there could be no doubt that the defendant had been aware that circumstances existed that could result in the application of force to another party, and was not merely acting in a reckless or negligent manner.

In People v. Aznavoleh, supra, 210 Cal.App.4th 1181, the defendant “deliberately ran a red light while racing another vehicle on a busy city street” even though his passengers repeatedly told him to slow down. (Id. at 1189.) The defendant saw another vehicle start turning left as he was approaching the intersection but “made no effort to stop, slow down, or otherwise avoid a collision with [that] vehicle.” (Id.) The court affirmed the defendant’s conviction of assault with a deadly weapon, finding that “an objectively reasonable person with knowledge of these facts would appreciate that an injurious collision, i.e., a battery, would directly and probably result from his actions.” (Id.)

Similarly, in People v. Wright (2002) 100 Cal.App.4th 703, the court affirmed jury convictions of a defendant for assault with a deadly weapon for driving his pickup truck “close to persons with whom he had contentious relations.” (Wright, supra, 100 Cal.App.4th at 705, 724.) The defendant had driven fast toward a woman in a crosswalk, forcing her to jump out of the way. (Id. at 707.) Another time, he drove at high speed directly toward a man with whom he had an altercation. (Id. at 708.) The Court in Wright criticized the definition of assault in Williams as based on an erroneous interpretation of the law. (Id. at 706, 711-724.) That court concluded that any assault instruction that does not require that the defendant specifically intend to commit a battery would erroneously permit a jury to convict a person of negligent assault. (Id. at 712-721.) However, recognizing the binding nature of the Williams decision, the court in Wright determined, “[T]he jury was permitted to convict [the] defendant of assault if it determined, under an objective view of the acts, that an application of physical force on another person was reasonably foreseeable.” (Id. at 724.)

In People v. Bipialaka (2019) 34 Cal.App.5th 455, 459, the defendant committed assault with a deadly weapon when he nearly caused a high-speed collision because he “knew his purpose was to use his masked face and his speeding car to freak [the victims] out,” and that “[t]argeting a car this way would directly, naturally, and probably result in physical force being applied”.

In People v. Golde (2008) 163 Cal.App.4th 101, 108-109, the court affirmed a conviction wherein the defendant drove his car at 15 miles per hour towards the victim, (id. at 109), wherein witnesses observed the car screeching its tires in acceleration toward the victim and the defendant maneuvered the car to pursue the victim. (Id.) The defendant’s arguments that he could have hit the victim but did not, and that he was maneuvering the car towards her to try to calm her down and coax her back into the car did not mandate reversal for insufficient evidence. (Id. at 108-109.)

Thus, even in the construction of the intent requirement  for assault in the post-Williams cases of Wright, supra, 100 Cal.App.4th 703, Aznavoleh, supra, 210 Cal.App.4th 1181, Bipialaka, supra, 34 Cal.App.5th 455, and Golde, supra, 163 Cal.App.4th 101, each respective defendant harbored an intent to either target, intimidate, or, with full knowledge of information that a collision was likely to occur, engage conduct likely to produce foreseeable injury to the respective victims. Courts have conversely declined to find sufficient evidence of assault where a defendant was not aware of circumstances that would lead one to believe the application of force was likely.

In People v. Miller (2008) 164 Cal.App.4th 653 – a post-Williams case – the defendant was convicted of numerous crimes including assault with a deadly weapon. Miller first drove away from the scene of an accident she caused, then drove to a beach access road and eventually onto a bicycle path. Numerous pedestrians and bicyclists were forced to jump out of Miller’s path. Miller, who was driving between 25-35 miles per hour, eventually struck a pedestrian. A short distance later she stopped, claiming she did not see the pedestrian she struck. Miller failed several field sobriety tests. (Id. at 657-659.) On appeal, the Court reversed the assault conviction and ruled that to sustain assault with deadly weapon conviction, defendant who was driving on beach bicycle path, must have been aware of presence of the victim hit by defendant’s vehicle. (Id. at 662-664).

Similarly, in People v. Jones (1981) 123 Cal.App.3d 83, the defendant, who had been driving recklessly in excess of 110 miles per hour during a police chase, rear-ended another car. Witnesses testified that the defendant’s vehicle decelerated at the time of the collision. (Id. at 87, 96.) The reviewing court found “no evidence to show or infer defendant drove his vehicle at the other car involved in the collision. The overwhelming evidence is defendant drove his car in a gross reckless manner which resulted in bodily injury to another. And as such, his driving, under the given circumstances of this case, constituted a violation of Vehicle Code section 23104, not . . . section 245, subdivision (a).” (Id. at 96.) The court in Jones held that the facts were lacking to show the driver “intended . . . an act the natural consequences of which is the application of force on the person of another.” (Id.) It should be noted that while Jones also considered the now-outdated conception of intent for assault as an “attempted battery” as it related to the case, (see, e.g., discussion in Aznavoleh, supra, 210 Cal.App.4th at 1190), it also applied the intact conception of intent for assault as being aware of “an act the natural consequences of which is the application of force on the person of another”. (Jones, supra, 123 Cal.App.3d at 96).

Clearly, the law governing what a defendant must
intend” to be guilty of assault has been watered down since the Williams decision of 2001, the prosecution must still demonstrate that the defendant was aware at the time they acted of some facts that would lead a reasonable person to believe that application of force is likely, and it cannot be based merely on things the defendant did not actually know but should have known.

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If you or someone you care about has been arrested or accused of any type of assault charge, you need a proven, experienced criminal defense team on your side to overcome the modifications in the interpretation of the law that stacks the deck against those charged with assault crimes. At Honeychurch & Boyd, we have proudly served the Solano County communities of Fairfield, Vallejo, Vacaville, Benicia, Suisun, Rio Vista, and Dixon as well as all Napa County and Yolo County communities since 1978 with outstanding results. Call 707-429-3111 today to schedule a free consultation to determine how we can help you achieve the best possible results in your case.

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