People v. Hood

1 Cal.3d 444, 462 P.2d 370 (1969)


Hood (D) was tried for assault with a deadly weapon on a police officer. D was drinking heavily and he and some friends barged into D’s former girlfriend’s house. When the police arrived at the scene, they attempted to arrest D. D resisted arrest by a police officer. In the course of the struggle, the police officer's gun was taken by D and D shot him in the legs. D was convicted of the assault and assault with intent to murder but that verdict was overturned by the California Supreme Court for the trial court's failure to instruct on simple assault and the hopelessly conflicting instructions on the effect of intoxication. The court instructed that, 'The offense of assault with a deadly weapon, with which defendant . . . is charged in Count One of the indictment necessarily includes the lesser offense of assault.' This instruction incorrectly referred to the crime charged merely as assault with a deadly weapon (Pen. Code, § 245, subd. (a)) instead of assault with a deadly weapon upon a peace officer (Pen. Code, § 245, subd. (b)). It thus served to blur the distinctions between these two offenses. The court did not instruct the jury that assault with a deadly weapon upon a peace officer includes the lesser offenses of assault with a deadly weapon as well as simple assault, or that the jury could convict defendant of no more than assault with a deadly weapon if it found that Officer Elia was not engaged in the performance of his duties or that defendant neither knew nor reasonably should have known that he was so engaged. As instructed, the jury could only convict defendant of simple assault or assault with a deadly weapon upon a peace officer. Defendant, however, did not request an instruction that he could be found guilty of the lesser offense of assault with a deadly weapon. (Accordingly, the question presented is whether the court erred in failing to give such an instruction on its own motion, sua sponte which is the real issue not given to you in the casebook.). The court correctly instructed the jury to consider the evidence that defendant was intoxicated in determining whether he had the specific intent to commit murder, it followed that instruction with the complete text of CALJIC No. 78 (revised), which applies to crimes that require proof only of a general criminal intent. The court in no way made clear to the jury that the latter instruction did not apply to the charge of assault with intent to commit murder.