People v. Alvarado

McINTYRE, J., Concurring.

Although I agree with the result reached by the majority, I write separately because I disagree with the majority’s conclusion that a Penal Code section 597, subdivision (a) offense is a general intent crime. (All statutory references are to the Penal Code.) Section 597, subdivision (a) originally made it a crime to “maliciously” maim, mutilate, torture, wound or kill a living animal. In applying this statute, the courts deemed “malice” to refer to the intent to do a wrongful act. (People v. Dunn (1974) 39 Cal.App.3d 418, 420-421 [114 Cal.Rptr. 164]; see Ex parte Mauch (1901) 134 Cal. 500, 501 [66 P. 734] [criminal complaint charging the defendant with willful and unlawful cruelty was sufficient to allege malice].) In 1986, the Legislature amended section 597, subdivision (a) to specify that the offender must “maliciously and intentionally” maim, mutilate, torture, wound or kill a living animal. (Stats. 1986, ch. 846, § 1, p. 2894.)

Generally, the concept of “intentional” or “willful” conduct does not imply an evil intent but rather means the person “ ‘knows what he is doing, intends to do what he is doing and is a free agent.’ ” (People v. Atkins (2001) 25 Cal.4th 76, 85 [104 Cal.Rptr.2d 738, 18 P.3d 660].) Thus, a crime requiring intentional or willful conduct is usually construed to be a general intent crime, unless the statutory language specifies that the defendant must intend not only to commit the act proscribed by the statute, but also to commit some further act or achieve some future consequence. (Ibid.; People v. Hagen *1191(1998) 19 Cal.4th 652, 663 [80 Cal.Rptr.2d 24, 967 P.2d 563].) “In the final analysis, however, the meaning of the word ‘willfully’ [or ‘intentionally’] in any given statute is dependent on the context in which it is used.” (People v. Lewis (2004) 120 Cal.App.4th 837, 852 [15 Cal.Rptr.3d 891], citing People v. Garcia (2001) 25 Cal.4th 744, 753 [107 Cal.Rptr.2d 355, 23 P.3d 590].)

Where a statute requires a willful act followed by some particular result, the intent element is generally construed as referring only to the initial act and not to the ultimate result and, as such, the crime is deemed to be one requiring general intent. (People v. Hering (1999) 20 Cal.4th 440, 446-447 [84 Cal.Rptr.2d 839, 976 P.2d 210]; People v. Lewis, supra, 120 Cal.App.4th at p. 853.) General intent offenses include: assault (People v. Williams (2001) 26 Cal.4th 779, 784, 787-788, 790 [111 Cal.Rptr.2d 114, 29 P.3d 197] [intent to commit an act with knowledge of facts sufficient to establish that the act by its nature would probably and directly result in the application of physical force to another]); battery (People v. Lara (1996) 44 Cal.App.4th 102, 107 [51 Cal.Rptr.2d 402] [intent to commit an unlawful use of force or violence on another]); simple mayhem (People v. Reed (1984) 157 Cal.App.3d 489, 492 [203 Cal.Rptr. 659] [intent to engage in conduct that foreseeably results in the victim’s disfigurement]); rape (People v. Linwood (2003) 105 Cal.App.4th 59, 70 [129 Cal.Rptr.2d 73] [intent to commit sexual intercourse]); sodomy (People v. Pearson (1986) 42 Cal.3d 351, 355-356 [228 Cal.Rptr. 509, 721 P.2d 595] [intent to commit act of sodomy]); and arson (People v. Atkins, supra, 25 Cal.4th at p. 89 [intent to set a fire under circumstances that the direct, natural and highly probable consequences would be the burning of a structure or property].) As to such offenses, the willfulness or intent element merely requires that the defendant intend the initial act, but not the particular result. (See People v. Atkins, supra, 25 Cal.4th at pp. 85-89.)

When, on the other hand, the statutory definition refers to the defendant’s intent to do some further act or to achieve some additional consequence, the crime is deemed to be a specific intent crime. (People v. Hering, supra, 20 Cal.4th at p. 445.) The following offenses are deemed to require specific intent: attempt crimes (§§ 21a, 664 [intent to commit the underlying offense]); receiving stolen property (People v. Reyes (1997) 52 Cal.App.4th 975, 982-986 [61 Cal.Rptr.2d 39] [intent to aid the thief or to deprive the owner of possession of the property]); and aggravated mayhem (People v. Ferrell (1990) 218 Cal.App.3d 828, 832-833 [267 Cal.Rptr. 283] [intent to cause permanent disability or disfigurement]).

The issue here is whether section 597, subdivision (a) falls into the former or latter category. Section 597, subdivision (a) does not describe an intent to do an initial act that causes injury or death to an animal, but instead refers to *1192the result itself, i.e., the maiming, mutilation, torture, wounding or killing. As written, the statutory language establishes that the defendant must intend the end result (that is, to maim, mutilate, torture, wound or kill the animal), rather than merely harbor the intent to do the wrongful act that causes such a result (in this case, wielding the knife). (See People v. Ferrell, supra, 218 Cal.App.3d at p. 833 [holding that aggravated mayhem (which includes the element of “intentionally and unlawfully causing another person to sustain permanent disability or disfigurement” or loss of limb, organ or other member) is a specific intent crime].) As such, the crime is a specific intent crime.

Notwithstanding the statutory language, my colleagues conclude that section 597, subdivision (a) requires only a general intent; pursuant to their interpretation of the statute, Alvarado must merely have intended to commit an act that results in the maiming, mutilating, torturing, wounding or killing of the animal rather than an intent to achieve such a result. According to this analysis, a jury could convict Alvarado of violating section 597, subdivision (a) based on a finding that he intentionally wielded the knife rather than a finding that he intended to injure the dogs. This analysis, however, essentially involves a rewriting of the statutory language, something that this court is not free to do. (See People v. Angel (1999) 70 Cal.App.4th 1141, 1150 [83 Cal.Rptr.2d 222]; Gray Cary Ware & Freidenrich v. Vigilant Insurance Co. (2004) 114 Cal.App.4th 1185, 1190 [8 Cal.Rptr.3d 475] [“our role to ascertain the meaning of the words used, not to insert what has been omitted or otherwise rewrite the law to conform to an intention that has not been expressed”].) In effect, the majority’s interpretation of section 597, subdivision (a) rewrites the crime to be one where the person maliciously and intentionally commits an act that maims, mutilates, tortures, wounds or kills the animal. In light of the statutory language specifying that the defendant must “maliciously and intentionally” maim, mutilate, torture, wound or kill an animal, I simply cannot agree with the majority’s conclusion that a more generalized intent is required. (See People v. Lewis, supra, 120 Cal.App.4th at pp. 852-853.)

Having disagreed with my colleagues on the legal question, I nonetheless concur in the result because I conclude that the court’s instructions to the jury regarding the necessary intent were sufficient. The court instructed the jury:

“Defendant is accused in Counts 1 and 2 of having violated Section 597(a) of the Penal Code, a crime. Every person who maliciously and intentionally maims, mutilates, tortures, or wounds a living animal or maliciously and intentionally kills an animal is guilty of a violation of section 597(a).
“In order to prove this crime, each of the following elements must be proved: [][] One, a person maimed, mutilated, tortured, wounded, or killed a *1193living animal; and, two, the person who committed the maiming, mutilation, torture, wounding or killing did so intentionally and maliciously.” (Italics added.) This is exactly what the statutory language requires, although under the majority’s view, these instructions were incorrect. No reasonable juror would interpret these instructions to require anything less than the intent to maim, mutilate, torture, wound or kill.

Alvarado contends, however, that the court’s giving of CALJIC No. 3.30 (relating to the requirement of “a union or joint operation of act or conduct and general criminal intent”) and its failure to specifically instmct the jury regarding the effect of intoxication on the formation of the required specific intent (in addition to malice) requires reversal of his convictions. I cannot agree with Alvarado’s contention. While I believe that CALJIC No. 3.30 fails to convey any meaningful thought to the average juror, it merely specifies that a person acts with general criminal intent when he “intentionally does that which the law declares to be a crime.” This language could not possibly have misled the jury about the required mental state, as to which the court correctly instructed the jury. (People v. Fabris (1995) 31 Cal.App.4th 685, 699-700 [37 Cal.Rptr.2d 667], disapproved on other grounds by People v. Atkins, supra, 25 Cal.4th at p. 90, fn. 5.)

Further, the court’s failure to give a specific instruction relating intoxication to the required statutory intent would not support a reversal in this case. The classification of offenses as specific or general intent crimes is also relevant in determining whether the requisite intent can be negated by the defendant’s voluntary intoxication or mental disease, defect or disorder. (§§ 22, 28; People v. Mendoza (1998) 18 Cal.4th 1114, 1128 [77 Cal.Rptr.2d 428, 959 P.2d 735]; People v. Fabris, supra, 31 Cal.App.4th at p. 696, fn. 10 [recognizing that under existing case law, “the criteria of specific intent for [the purpose of section 22] are not necessarily the same as the criteria of specific intent as a measure of the scienter required for an offense”].) However, as the California Supreme Court has recognized, the definition of a crime as a specific or general intent crime cannot be applied mechanically in determining whether evidence of the defendant’s intoxication is relevant as to a particular offense; rather “ ‘the decision whether or not to give effect to evidence of intoxication [in a prosecution for [a particular offense]] must rest on other considerations.’ ” (People v. Whitfield (1994) 7 Cal.4th 437, 449 [27 Cal.Rptr.2d 858, 868 P.2d 272] [holding evidence of voluntary intoxication was admissible as against a charge of murder in the second degree based on implied malice, even though that crime was not a specific intent crime].)

Notwithstanding the high court’s directive, the published appellate cases continue to analyze the issue of the relevance of intoxication, as the majority does here, based on mechanical application of the statutory language, without *1194any discussion of the underlying policy considerations. In addition, the courts have long recognized that the distinction between specific intent or general intent offenses has proven to be elusive, with the terms being “ \ . . notoriously difficult ... to define and apply’ ” and indeed “mischievous” in many instances. (People v. Hering, supra, 20 Cal.4th at p. 445, quoting People v. Hood (1969) 1 Cal.3d 444, 456 [82 Cal.Rptr. 618, 462 P.2d 370].) In light of the continuing uncertainty surrounding the determination of whether a particular offense requires specific or general intent and the standards for making such a determination, I would urge the California Supreme Court to provide further guidance on these issues.

In this case, the court admitted evidence of Alvarado’s intoxication and instructed the jury that, if Alvarado was intoxicated at the time of the charged offenses, that fact should be considered in determining whether Alvarado had the required mental state of malice. Assuming, without deciding, that the policy considerations support a conclusion that evidence of Alvarado’s intoxication is relevant to whether he harbored the intent to maim, mutilate, torture, wound or kill the dogs, I would in any event conclude that the court’s failure to specifically so instruct the jury was harmless. (See People v. Haley (2004) 34 Cal.4th 283, 314 [17 Cal.Rptr.3d 877, 96 P.3d 170], citing People v. Flood (1998) 18 Cal.4th 470, 504 [76 Cal.Rptr.2d 180, 957 P.2d 869] [a “trial court’s instructional error is amenable to harmless error analysis [when] it appears beyond a reasonable doubt that the error did not contribute to the jury’s verdict”].) The instructions were sufficient to inform the jury as to the required intent and the court did instruct the jury that the evidence of Alvarado’s intoxication was relevant to his mental state. Further, in light of the evidence of the multiplicity and extent of the injuries to the dogs, I am convinced beyond a reasonable doubt that, even absent the error, the jury would have concluded Alvarado intended to maim, mutilate, torture, wound or kill the dogs and thus that the error did not contribute to the jury’s verdict.

A petition for a rehearing was denied January 27, 2005, and appellant’s petition for review by the Supreme Court was denied April 27, 2005.