is the culpable mental state required to commit an assault? Is it the intent to do an act, the likely consequence of which is physical injury to another? Or is it the intent to physically injure another?
In this case, the majority concludes that “a general criminal intent to commit the act suffices to establish the requisite mental state” of the crime of assault, so long as “the defendant willfully committed an act that by its nature will probably and directly result in injury to another . . . .” (Maj. opn., ante, pp. 214-215.) The majority reaches this conclusion by reaffirming and attempting to clarify our decision in People v. Rocha (1971) 3 Cal.3d 893 [92 Cal.Rptr. 172, 479 P.2d 372]. In my view, Rocha was wrongly decided, and has been a source of confusion that the majority opinion does not succeed in dispelling.1I would overrule Rocha, and hold that assault is a specific intent crime that requires that the defendant intend to injure the victim.
The crime of assault is defined by statute. Penal Code section 240 provides: “An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another."
As with all questions of statutory interpretation, the aim of the courts is to ascertain the intent of the Legislature, and to effectuate it. (E.g., People v. Woodhead (1987) 43 Cal.3d 1002, 1007 [239 Cal.Rptr. 656, 741 P.2d 154]; Woods v. Young (1991) 53 Cal.3d 315, 323 [279 Cal.Rptr. 613, 807 P.2d 455].) Here, the legislative intent is clear from the legislative history.
Penal Code section 240 was enacted in 1872 and has never been amended. In enacting section 240, the Legislature followed the recommendation of the code commissioners who proposed it. When the Legislature follows the *226recommendations of a law revision commission without change, as it did with section 240, the comments of the commissioners provide strong evidence of the legislative intent. (See, e.g., People v. Garfield (1985) 40 Cal.3d 192, 199 [219 Cal.Rptr. 196, 707 P.2d 258].)
The code commissioners’ note to Penal Code section 240 states in relevant part (and with all italics in the original): “Intent to Strike.—An assault has also been said to be an intentional attempt, by violence, to do an injury to the person of another. It must be intentional. If there is no present purpose to do an injury, there is no assault. There must also be an attempt. A purpose not accompanied by an effort to carry into immediate execution falls short of an assault. Thus no words can amount to an assault. But rushing towards another with menacing gestures, and with a purpose to strike, is an assault, though the accused is prevented from striking before he comes near enough to do so.—[Citations.] ... So, where an Embassador [sic] exhibited a painting in the window of his house which gave offense to the crowd without, and defendant, among the crowd, fired a pistol at the painting at the very time when the Embassador [sic] and his servants were in the window to remove it, but did not intend to hurt any of them, and in fact did not [,] Held, that there being no intent to injure the person there could be no conviction for an assault. [Citations.]” (Code comrs. note foll. Ann. Pen. Code, § 240 (1st ed. 1872, Haymond & Burch, comrs.-annotators) pp. 104-105.)2
Accordingly, the intent to do an act likely to cause injury is insufficient for assault. The intent to commit an injury is required. “If there is no present purpose to do an injury, there is no assault.” (Code comrs. note foll. Ann. Pen. Code, § 240, supra, at p. 104.)
If assault requires the intent to injure the victim, it must be a specific intent crime. In People v. Hood (1969) 1 Cal.3d.444, 456-457 [82 Cal.Rptr. 618, 462 P.2d 370], this court explained the difference between specific and general intent: “When the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence, we ask whether the defendant intended to do the proscribed act. This intention is deemed to be a general criminal intent. When the definition refers to defendant’s intent to do some further act or achieve some additional consequence, the crime is deemed to be one of specific intent.”
*227In the case of assault, the injury to the victim is an “additional consequence” beyond the commission of the act itself: to be guilty of assault, a defendant who throws a punch at the victim must intend not only to swing, but also that the punch will have the additional consequence of injury to the victim. Assault is therefore a specific intent crime.
There is additional support for my conclusion that assault is a specific intent crime. Section 242 of the Penal Code defines a battery as “any willful and unlawful use of force or violence upon the person of another.” Section 240 defines an assault as an unlawful attempt, coupled with a present ability, to commit a physical injury on another. In other words, an assault is an attempt to commit a battery, whether successful or not. Penal Code, section 21a has this to say about an attempt: “An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission.” (Italics added.) Accordingly, since assault is an attempt to commit a battery, and an attempt requires specific intent, the mental state element of assault is the specific intent to commit a battery.
In holding that assault is not a specific intent crime, the court in People v. Rocha, supra, 3 Cal.3d 893, on which the majority relies, may have overlooked the code commissioners’ comments I referred to earlier, for they are not mentioned in Rocha. The majority attempts to resolve the “understandable analytical uncertainty” caused by Rocha (maj. opn., ante, at p. 215), but does not succeed, because it is impossible to logically explain how one may attempt to commit a battery without desiring to commit one. Therefore, we should not attempt to clarify Rocha, but should forthrightly overrule it.
Because, as I have shown, assault is a specific intent crime, it follows that in this case the jury instruction given—that “when an act inherently dangerous to others is committed with a conscious disregard of human life and safety ... the intent to commit a battery is presumed”—was defective. Was it prejudicial on this record? No. My reasons follow.
Although the presumption affected the only element of the offense in issue, the error was harmless beyond a reasonable doubt, for the issue was necessarily resolved adversely to defendant under another, properly given instruction. (People v. Sedeno (1974) 10 Cal.3d 703, 721 [112 Cal.Rptr. 1, 518 P.2d 913].) Specifically, in instructing the jury on the allegation that defendant had inflicted great bodily injury, the trial court stated: “If you find a defendant guilty of assault with a firearm, you must determine whether or not such defendant, with the specific intent to inflict such injury, did personally inflict great bodily injury on [the victim].” (Italics added.) The jury *228found the enhancement allegation to be true, and thus necessarily found that defendant had the specific intent to commit a physical injury on the victim.
Accordingly, I concur in the majority’s affirmance of the judgment only.
The confusion that continues despite the majority’s opinion is illustrated by the differences between this opinion and Justice Mosk’s concurring opinion. Justice Mosk’s concurring opinion reads the majority as holding that the crime of assault requires an intent to injure. Because Justice Mosk agrees with this holding, he concurs with the majority. Although I agree with Justice Mosk that assault requires an intent to injure, the majority opinion does not, in my view, so conclude.
The code commissioners’ note proceeds to explain that the intent to injure may be conditional: “[T]hreatening another with a weapon, as a means of coercing him to yield to a demand, intending to strike if he refuses, but not to strike if he complies, is an assault, although the other party negotiates and no blow is finally given. It makes no difference that the purpose to commit violence is not absolute but only conditional.” (Code comrs. note, supra, at p. 105; see also, People v. McCoy (1944) 25 Cal.2d 177, 192-193 [153 P.2d 315].)