1 Cal. 3d 444, 82 Cal. Rptr. 618, 462 P.2d 370 (1969)
An indictment charged defendant in Count I with assault with a deadly weapon upon a peace officer, Alfred Elia.1 It charged him in Count II with battery upon a peace officer, Donald Kemper.2 It charged him in Count III with assault with intent to murder Officer Elia.3 A jury found him guilty on Counts I and III and not guilty on Count II.4 The trial court entered judgment on the verdicts.5 The trial court also ordered that the defendant serve the sentence in Count Three only.6 The sentence in Count One was withheld and imposed only if the sentence for Count Three is not carried out for any reason.7 Defendant appeals.8
On September 11, 1967, at about 2:00 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.9 Susan said no, but defendant forced his way in and started to hit her. He knocked her to the floor and kicked her.10 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.11 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.12
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.13 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.'14 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.15 There they observed defendant on the right-hand side of the room leaning against a door. On the left side of the kitchen, the three other men were seated at a table.16 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 415.17 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.18
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.19 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.20 He testified that defendant pointed the gun towards Officer Elia's midsection and pulled the trigger twice.21 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.22 The foregoing evidence is clearly sufficient to support the verdicts.23 Defendant contends that the court failed properly to instruct the jury with respect to lesser included offenses to the offense charged in Count I. He also contends that the court erred in instructing on the effect of intoxication with respect to the offenses charged in both Counts I and III.24
Whether the trial court erred in failing to instruct the jury on its own motion regarding the lesser included offense of assault with a deadly weapon on the charge in Count I?25
The trial court must instruct the jury on the general principles of law relevant to the issues raised by the evidence even though not requested to do so.26 This includes lesser included offenses when the evidence supports them and the issue is closely and openly connected with the facts before the court.27
Yes. Defendant testified that as Officer Elia turned and came toward him, he thought the officer was drawing his gun and was going to shoot him. This raised the question whether Officer Elia had become angered and ceased to be engaged in the performance of his duties or whether defendant could reasonably have so believed.28 This evidence was the same evidence that raised the issue of self-defense on which the court instructed fully.
It made the lesser included offense issue closely and openly connected with the facts.29 The court instructed only that assault with a deadly weapon necessarily includes simple assault. It did not instruct that assault with a deadly weapon upon a peace officer includes assault with a deadly weapon. The court also failed to tell the jury it could convict of no more than assault with a deadly weapon if it found the officer was not engaged in his duties or defendant neither knew nor reasonably should have known that he was so engaged.30
The trial court erred in failing to instruct on the lesser included offense of assault with a deadly weapon. The error was prejudicial because it deprived defendant of his constitutional right to have the jury determine every material issue presented by the evidence. This requires reversal on Count I.31
Whether the trial court erred in giving conflicting instructions on the effect of intoxication with respect to the offense charged in Count III?32
Giving conflicting instructions on the effect of intoxication with respect to a crime requiring proof of a specific intent is error. The error is prejudicial when there is substantial evidence that the defendant was intoxicated and the jury could have reached a result more favorable to the defendant absent the conflict.33
Yes. The court correctly instructed the jury to consider the evidence that defendant was intoxicated in determining whether he had the specific intent to commit murder. It then gave the complete text of CALJIC No. 78 which applies to crimes that require proof only of a general criminal intent. The court in no way made clear to the jury that the latter instruction did not apply to the charge of assault with intent to commit murder.34
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.35
The trial court erred in giving conflicting instructions on the effect of intoxication with respect to Count III. The error was clearly prejudicial, requiring reversal on that count.36
Whether evidence of intoxication may be considered by the jury in determining whether a defendant committed assault with a deadly weapon?37
Although assault with a deadly weapon may be characterized as a specific intent crime because it requires an intent to commit a battery, evidence of voluntary intoxication may not be considered in determining whether the defendant had that intent. Assault is equally well characterized as a general intent crime. The effect of alcohol on judgment and impulse control makes it anomalous to relieve a defendant of responsibility for such crimes on the basis of intoxication.38
No. The definitions of both specific 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. These include the effect of alcohol on human behavior which distorts judgment and relaxes controls on aggressive impulses. Alcohol has less effect on the ability to engage in simple goal-directed behavior such as striking another.39
A drunk man is capable of forming an intent to do something simple such as strike another unless so drunk as to be unconscious. It would therefore be anomalous to allow evidence of intoxication to relieve a man of responsibility for crimes of assault with a deadly weapon or simple assault which are frequently committed in that manner.40
Evidence of intoxication may not be considered by the jury in determining whether a defendant committed assault with a deadly weapon or any of the lesser assaults included therein.41