IN RE: DANIEL R. (1992)

OPINION

Daniel R. appeals from a judgment of the juvenile court, following a finding he violated Penal Code section 245, subdivision (a)(2) (assault with a firearm).   The sole issue on appeal is whether an act which is inherently dangerous to others can give rise to a presumption of an intent to commit a battery.

I

Marc Z. was pushing his bicycle near the Anaheim High School gymnasium, when he bumped into Daniel.   A heated argument followed, during which Marc pushed Daniel with his hand.   Daniel removed a gun from his pants and, pointing it at the ground three feet to Marc's right, fired one shot.   Daniel's intent was to frighten him.

Marc hit Daniel in the face, daring him to shoot again.   However, Daniel had lost interest in fighting and Marc went into the gymnasium.   Marc did not see anyone else in the area, but acknowledged there were other students in the gymnasium.

A third student, Joseph P., was on his way to the gymnasium and overheard the argument.   He was standing behind Marc, to his left, about three feet away.   Joseph began to walk away in order to distance himself from the skirmish, when he felt pain in his back.   He had been hit by a projectile, and his resulting wound required eight stitches.

Daniel testified he had found the gun five weeks earlier and had never before fired one.   He shot at the ground, away from Marc, in order to frighten him, and did not see anyone else around.   He assumed the bullet would become embedded in the asphalt;  it did not occur to him it might ricochet in another direction.   He did not see anyone else around at the time.

The trial court found Daniel had committed two assaults with a deadly weapon—one each on Marc and Joseph.   He was also found to have violated Penal Code section 626.9 by possessing a firearm upon public school grounds.

II

In sustaining the petition, the trial court found that firing a loaded gun was an act inherently dangerous to others;  that Daniel's pulling the trigger without taking into account the consequence that the bullet could ricochet showed a conscious disregard for human life and safety;  that this was particularly so where, although he did not see anyone else, he should have known there were other people around;  that he did not intend to harm Marc;  and that firing a gun under such circumstances was an act transcending recklessness, giving rise to a presumption of an intent to commit a battery, which was not rebutted.

 Daniel argues the uncontradicted evidence established he did not have the requisite intent to constitute an assault.   He points out the evidence established only that he intended to frighten Marc and there was no evidence he was aware of Joseph's presence.   Applying the findings made by the trial court, we agree they are consistent with this interpretation of the evidence.   Therefore, we decide the issue as a question of law.  (People v. Louis (1986) 42 Cal.3d 969, 987, 232 Cal.Rptr. 110, 728 P.2d 180.)

In People v. Rocha (1971) 3 Cal.3d 893, 92 Cal.Rptr. 172, 479 P.2d 372, the Supreme Court attempted to define the intent required for an assault.  “An assault is an unlawful attempt, coupled with the present ability, to commit a violent injury on the person of another, or in other words, it is an attempt to commit a battery.  [Citations.]  Accordingly the intent for an assault with a deadly weapon is the intent to attempt to commit a battery․  [T]he criminal intent which is required for assault with a deadly weapon ․ is the general intent to wilfully commit an act the direct, natural and probable consequences of which if successfully completed would be the injury to another․  The intent to cause any particular injury [citation], to severely injure another, or to injure in the sense of inflicting bodily harm is not necessary.”  (Id. at p. 899, 92 Cal.Rptr. 172, 479 P.2d 372, fns. omitted.)

“Mere reckless conduct is not sufficient to constitute assault.   [Citations.]  Further, a conviction for assault may not be grounded upon intent only to frighten.  [Citation.]”  (People v. Burres (1980) 101 Cal.App.3d 341, 346, 161 Cal.Rptr. 593.)

Two years after Rocha, the Court of Appeal decided People v. Lathus (1973) 35 Cal.App.3d 466, 110 Cal.Rptr. 921, relied upon by the People, both in the lower court and on appeal.   In Lathus, the defendant was riding in a car along the highway.   Spotting a disabled vehicle parked on the side of the road, he shot at it.   He hit the driver, who was standing on the opposite side of the car with his hand and the top of his head visible above the roof.   Lathus contended he never saw the victim and was only shooting at the car.   The court found there was substantial evidence from which the jury could conclude the defendant actually saw the victim and shot at the car deliberately.   (Id. at p. 471, 110 Cal.Rptr. 921.)

Having so concluded, however, the court continued:  “[W]hen an act inherently dangerous to others is committed with a conscious disregard of human life and safety, the act transcends recklessness, and the intent to commit the battery is presumed;  the law cannot tolerate a deliberate and conscious disregard of human safety.   Thus, if one deliberately employs a lethal weapon, such as a gun, with actual or presumptive knowledge that if utilized in the manner in which it is being used the infliction of serious bodily injury to another is very likely to occur, he is presumed to have intended the natural and probable consequences of his deliberate act.”  (Id. at p. 470, 110 Cal.Rptr. 921, italics added.)

This language has been relied upon in several later cases.   However, one case indicated it constitutes mere dictum.   In People v. Burres, supra, 101 Cal.App.3d 341, 161 Cal.Rptr. 593, the court observed that the holding was that it was reasonable for a jury to infer from the facts that Lathus intended to commit a battery.  (Id. at p. 348, 161 Cal.Rptr. 593.)   Thus, because the Lathus court was deciding a sufficiency of evidence question, the legal or policy pronouncement quoted above was unnecessary to the result.

But Burres is more interesting because of its analysis of the question of presumptions, a concept employed in the quoted passage from Lathus.   The jury in Burres was instructed:  “ ‘When an act inherently dangerous to others is committed with a conscious disregard of human life and safety, ․ the intent to commit the battery is presumed․’ ”  (Id. at p. 348, 161 Cal.Rptr. 593, italics added.)   The Court of Appeal held this language amounted to an improper limitation on the jury's province to determine an essential element of the case.   Moreover, it shifted the burden to the defendant of persuading the jury that such intent did not exist.   Such an instruction was found to be unconstitutional by the United States Supreme Court in Sandstrom v. Montana (1979) 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39.   In that case, the court struck down a jury instruction which stated, “ ‘[T]he law presumes that a person intends the ordinary consequences of his [or her] voluntary acts.’ ”  (Id. at p. 512, 99 S.Ct. at p. 2453.)   Sandstrom held the instruction invaded the presumption of innocence and diminished the prosecution's burden of establishing every element of the crime.   Moreover, it shifted the burden of proof as to a necessary fact from the prosecution to the defendant.

The Burres court concluded that a similar instruction required reversal.   Although not directly addressing the similar language in Lathus, it observed that such language was unnecessary to the holding in Lathus because the issue involved reasonable inferences a jury could draw from the evidence, not instructional error.

 Taking the analysis a step further, it appears the Lathus language does not survive a Sandstrom scrutiny.  Lathus purports to hold that deliberately employing a lethal weapon in a particular manner raises a presumption that the act was committed with the required intent.

The Attorney General insists that proof of acts showing a deliberate and conscious disregard for human safety is merely one method by which the intent to commit a battery may be inferred.   The other, of course, is by proof that a defendant's purpose and desire was to commit a battery.   However, establishing the commission of a dangerous act may not in all cases constitute proof of the mental element of an assault.   While there may be instances where a jury may infer such an intent from the circumstances of the shooting, establishing a presumption that intent exists violates the Sandstrom mandate.   Thus, to the extent Lathus has been interpreted to establish a rule of law presuming intent from the employment of a lethal weapon in a particular manner, we disagree.

We recognize that this court, along with many others, has approved the Lathus language.   In In re Brian F. (1985) 167 Cal.App.3d 672, 213 Cal.Rptr. 195, we relied exclusively on Lathus and held:  “Intent may be presumed when the act is inherently dangerous and committed with conscious disregard of human safety.”  (Id. at p. 675, 213 Cal.Rptr. 195.)   Following Sandstrom and the analysis of Burres, intent may be inferred from such conduct but it may not be presumed.   We are therefore persuaded that Brian F. was incorrectly decided.

The findings of the trial court in the instant case, which appear to be in reliance upon Lathus, reflect a similar reliance on a legal presumption and a shifting of the burden to the defendant to rebut it.   The trial court found that firing a gun under the circumstances here was an act inherently dangerous to others, giving rise to a presumption of an intent to commit a battery, which was not rebutted.   It made no finding that Daniel intended to commit a battery;  nor was there evidence to that effect.   Indeed, it found Daniel did not intend to batter Marc or Joseph.

Without a finding that Daniel intended to commit a battery, established either directly or inferentially by the prosecution beyond a reasonable doubt, the prosecution was relieved of its burden of proving the mental element.   Reversal is required as to the assaults.   In all other respects, the judgment is affirmed.

SONENSHINE, Associate Justice.

SILLS, P.J., and MOORE, J., concur.