IN RE: James M.

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Court of Appeal, Second District, Division 1, California.

IN RE: James M., a minor. Kenneth E. KIRKPATRICK, Chief Probation Officer of Los Angeles County, Plaintiff and Respondent, v. James M., Defendant and Appellant.

Cr. 21885.

Decided: December 29, 1972

Richard S. Buckley, Public Defender, John J. Gibbons, Sherman W. Smith, Jr., Laurance S. Smith, and Martin Stein, Deputy Public Defenders, for defendant and appellant. Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., Russell Iungerich and Daniel W. McGovern, Deputy Attys. Gen., Los Angeles, for plaintiff and respondent.

This is an appeal from a judgment and orders finding appellant to be a person described by Welfare and Institutions Code section 602 and declaring him a ward of the court (Welf. & Inst.Code, § 725(b)). We affirm the judgment and orders.

At about 10:30 a. m., on December 7, 1971, Officer H. W. Sietz and his partner, members of the Los Angeles Police Department, were conducting a field interview of two juveniles loitering on the sidewalk across from a school in the vicinity of 70th Street and Gramercy in the City of Los Angeles. A crowd of approximately 75 to 100 juveniles gathered in the school yard. Individuals in the crowd shouted obscenities and threw objects, principally paper, at the officers. Sietz observed appellant climb the fence and throw a rock about 3 inches in diameter which landed 8 feet in front of the officers, striking the left front fender of the patrol vehicle.

Pursuant to Welfare and Institutions Code section 602, a petition to adjudge appellant a ward of the juvenile court was filed. The charging allegations are that appellant violated Penal Code section 245(b) by committing an assault with a deadly weapon upon a police officer and violated Penal Code section 415 by disturbing the peace. The juvenile court found that ‘there has not been established here a clear violation of Section 245(b) of the Penal Code.’ The court continued: ‘There is a question in my mind whether the rock having hit the police car when this officer was eight feet away brings the officer within the proximity of the thrown missile.’ It stated that the evidence established that appellant had committed the crime of attempted assault ‘because of either a poor aim or the obstruction of the top of the fence.’

At the court's suggestion, the petition was amended to conform to proof to allege that appellant had committed the crime of attempted assault. The allegation, as amended, was found to be true. The court found, also, that the allegation of a violation of Penal Code section 415, disturbing the peace, was not established by the evidence. It adjudged appellant a ward of the court.

On this appeal, appellant contends that the adjudication must be reversed because attempted assault is not a crime. We conclude to the contrary.

At common law, there was no crime of attempted assault. An assault was defined as nothing more than an attempted battery. Since one cannot attempt an attempt, the crime of attempted assault was a logical impossibility. (1 Wharton, Criminal Law and Procedure (Anderson ed. 1957) § 72 at p. 154; 1 Burdick, Crime (1946 ed.) § 135 at p. 176; Clark & Marshall, Crimes (7th ed. 1967) § 4.07 at p. 246.) Overlaying the common law reasoning is the related common law concept that a person committing a completed crime cannot be punished for an attempt. (Clark & Marshall, Crimes (7th ed. 1967) § 4.14 at p. 258.) A person whose conduct and intent satisfied the requirements of an attempted battery completed the common law crime of assault, precluding the treatment of the same conduct as an attempt.

Penal Code section 240 differs from the common law definition of assault. In California, a criminal assault is ‘an unlawful attempt, coupled with present ability, to commit a violent injury on the person of another.’ Here a criminal assault is more than an attempted battery; it is an attempted battery plus a present ability to accomplish it. An unlawful attempt in California requires: ‘(a) the specific intent to commit a particular crime, and (b) a direct ineffectual act done toward its commission’ (1 Witkin, Cal.Crimes (1963 ed.) Elements of Crime, § 93). An attempt does not require present ability to consummate the crime attempted. Because the California definition of criminal assault includes an element not required in a criminal attempt, the crime of attempted assault is not a logical impossibility in this state. ‘Where an attempt to commit a battery with present ability is the only basis on which a criminal assault may be established, an ‘attempt to assault’ would mean in substance an attempt to commit a battery without present ability.' (Perkins, An Analysis of Assault and Attempts to Assault, 47 Minn.L.Rev. 71, 81.) California has also by statute abandoned the common law principle that a person who achieves a completed crime may not be convicted of attempt. (Pen.Code § 663.) The rationale of the common law rule is thus not present in California.

We thus reach the ultimate issue of the case at bench—in view of California's statutory expansion of the elements necessary to the crime of criminal assault, may a person attempting a battery who fails to accomplish it for lack of present ability be found guilty of attempted criminal assault? The question seems one of first impression in this state.1

The courts of other jurisdictions which have considered a similar question do not reach a uniform result. Montana, New York, and Oregon, whose definitions of assault include an element not present at common law, recognize the crime of attempted assault. (State v. Herron, 12 Mont. 230, 29 P. 819; People v. O'Connell, 60 Hun. 109, 14 N.Y.S. 485; State v. Wilson, 218 Or. 575, 346 P.2d 115, 79 A.L.R.2d 587.) Colorado, with a similar statutory definition of assault, holds to the contrary. (Allen v. People, Colo., 485 P.2d 886, 888.) The Montana, New York, and Oregon decisions emphasize the proposition that since criminal assault requires a present ability to inflict injury or some similar element such as proximity, there may be conduct which satisfies the legal elements of an attempt but which falls short of a criminal assault. Lack of present ability or proximity is the touchstone. The Colorado court reaches the opposite conclusion by focusing upon the intent element in a criminal attempt. It states that an attempt can be committed only by a person who intends to commit the crime attempted, and theorizes that an attempted assault is impossible because no one can intend to commit an attempt to act. (Allen v. People, supra, 485 P.2d 886, 888.)

The reasoning of the Montana, New York, and Oregon decisions is treated by commentators as the more persuasive. (Perkins, An Analysis of Assault and Attempts to Assault, 47 Minn.L.Rev. 71, 91;2 Arnold, Criminal Attempts—The Rise and Fall of an Abstraction, 40 Yale Law J. 52, 65.3 ) We concur in that view. The rationale of the Colorado rule by emphasizing the abstraction of the quantum of intent required for an attempt ignores the practicality that the intent required for battery, assault, and attempt to assault is the same. It is the nature of the defendant's conduct and not the intent with which it is performed that determines the quality of the crime.

Reason, persuasive precedent, and authoritative commentary lead us to conclude that in California a person may properly be charged with and convicted of attempted assault. That crime occurs when a battery is attempted, is unsuccessful, and where the actor lacks the present ability to consummate it. Where the attempt at battery is found unsuccessful and there is the lack of present ability to accomplish physical harm, the attempt is an included offense in the charge of assault.

Here there was an attempt at battery when appellant threw the rock in the general direction of the officers. Here the rock missed so that there was no physical harm accomplished. Here, also, the evidence supports the finding of the juvenile court that, because of the obstruction of a fence, appellant lacked present ability to consummate a battery. The decision of the juvenile court is thus supported by the law and the record.

The judgment and orders are affirmed.


1.  People v. Stouter, 142 Cal. 146, 75 P. 780, is cited by some texts as dealing with the subject. It does not.

2.  ‘The original concept of criminal assault has been changed by . . . the addition of a requirement of present ability. After . . . [this change] it is more meaningful to speak of an attempt to assault as a criminal offense.’

3.  ‘In short the generalization that there can be no attempt at a crime in the nature of an attempt tells us nothing and tends merely to divert the court's mind from the real issue.’

THOMPSON, Associate Justice.

LILLIE, Acting P. J., and CLARK, J., concur.

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