CALJIC 9.00 - Interpretation
In People v. Smith (1997) 57 Cal.App.4th 1470, the defendant was convicted of assault with a deadly weapon upon the person of a peace officer, based upon evidence that he struck a police officer with his car.
The defendant in Smith testified that he had been directed by a police officer to move his car forward, and in doing so he inadvertently struck an officer.
During deliberations the jury asked "whether 'the intent to move the vehicle forward, alone, constitutes "general criminal intent" ' or whether an 'intent to injure' was required." ( Id. at p. 1473.)
The trial court did not reread the entire text of CALJIC No. 9.00, but instead read "an abbreviated instruction," telling the jury the defendant must " 'intend to commit an act, the natural and probable consequence of which if successfully completed would be the application of physical force upon the person of another . . . .' " ( Id. at p. 1474.)
The appellate court reversed, holding that the " 'natural and probable consequence' " language in the court's response to the jury's question made forseeability of the application of physical force an element of the assault element of the offense, and thereby "directed the jury to apply a negligence standard to that element." (People v. Smith, supra, 57 Cal.App.4th at p. 1474).
Such a standard, the court held further, "cannot be equated with the required intention for assault with a deadly weapon, i.e., an intended forcible and unlawful touching as a desired consequence or one that is known to be substantially certain to result." ( Id. at p. 1488.)
CALJIC No. 9.00 was revised once again in 1998 in direct response to Smith. a bracketed portion was inserted between elements one and two in the post-Colantuono instruction set out above.
It provides: "2. at the time the act was committed, the person intended to use physical force upon another person or to do an act that was substantially certain to result in the application of physical force upon another person." (CALJIC No. 9.00 (1998 rev.)
As indicated above, defense counsel requested, and the court gave, the version of CALJIC No. 9.00 containing this language.