People v. Czahara

Opinion

We hold here that a jury should not be instructed on transferred intent to kill when a defendant is charged with multiple attempted murders arising from a single act.

Michael Andrew Czahara appeals his convictions for the attempted murders of Carole Christie and Ronald Johnson. (Pen. Code, §§ 187, 664.) We hold that the jury instruction on transferred intent was erroneous and prejudicial in the circumstances of this case and reverse the conviction for attempted murder of Johnson, but affirm the conviction for attempted murder of Christie.

Carole Christie met Czahara in March 1986, and they began dating in April or May. As the relationship developed, they discussed marriage and agreed to be sexually faithful to each other. Christie, however, began to doubt Czahara’s fidelity when she noticed a piece of unfamiliar lingerie hanging on his bathroom door. In late July, Christie began dating Ron Johnson. On September 14, 1986, Christie told Czahara that she did not want to see him any more. Czahara threatened to kill Christie and himself. Christie reported the threat to police and obtained a restraining order against Czahara.

On September 19, Christie was at Johnson’s house when she saw Czahara drive slowly by looking in the windows. She called the police and Johnson drove her to her apartment. After Johnson returned home, Czahara called him on the telephone and said, “Send Carole out or I’m coming in.” Christie drove to Johnson’s house to pick him up to go somewhere safe. Johnson came out of his house and began to sit down in the passenger’s seat. At the same time, Czahara walked quickly toward the driver’s side of the car, pointed a handgun directly at Christie and, from a distance of five or six feet, shot at least twice. Christie and Johnson were both injured, and their injuries were stipulated to constitute great bodily injury.

Czahara was convicted of two counts of attempted murder and two counts of assault with a deadly weapon (Pen. Code, § 245). Allegations of personal use of a firearm (Pen. Code, § 12022.5) and great bodily injury

Over defense objection the court gave jury instruction number 2, which read: “When one attempts to kill a certain person, but by mistake or inadvertence injures a different person, the crime, if any, so committed is the same as though the person originally intended to be killed had been injured.” The instruction was a modification of CALJIC No. 8.65 (4th ed. 1979), which states the principle of transferred intent for homicide, (la) Czahara contends that the transferred intent rule was inapplicable here because the intended victim, Carole Christie, was injured in the attempt.

The California Supreme Court has on several occasions approved the rule of transferred intent in homicide cases. (People v. Sears (1970) 2 Cal.3d 180 , 189 [ 84 Cal.Rptr. 711 , 465 P.2d 847 ]; People v. Sutic (1953) 41 Cal.2d 483 , 491-492 [ 261 P.2d 241 ]; People v. Suesser (1904) 142 Cal. 354 , 366-367 [ 75 P. 1093 ].) The high court has not, however, considered application of the doctrine to homicides in which the intended victim was also killed or to attempted homicides in which the intended victim was injured in the attempt.

Two Court of Appeal panels have considered the question whether transferred intent applies where both the intended and unintended victims of an assault die. In People v. Carlson (1974) 37 Cal.App.3d 349 [ 112 Cal.Rptr. 321 ], the defendant was convicted of voluntary manslaughter for killing his wife and murder for the unintentional death of their unborn child. (Id., at pp. 351-352.) Holding that the murder conviction could not be supported under a felony-murder theory, the court next considered whether the defendant could be convicted of manslaughter of the fetus on a theory of transferred intent. (Id., at pp. 353-356.) The court stated that the law would transfer the defendant’s felonious intent from the mother to the fetus, adding that “there can be no doubt that the doctrine of ‘transferred intent’ applies even though the original object of the assault is killed as well. . . .” (Id., at p. 357.) Nevertheless, the court held that the defendant could not be

In People v. Birreuta (1984) 162 Cal.App.3d 454 [ 208 Cal.Rptr. 635 ], the defendant had shot into a dark room, killing his wife and a neighbor. He claimed that he was shooting only at the neighbor and that he did not even know his wife was present. (Id., at p. 458.) The court held that the giving of a transferred intent instruction (CALJIC No. 8.65) was error where the intended victim was also killed. (Id., at pp. 460-461.) The holding was based on the purpose of the transferred intent rule as the court saw it, “to insure the adequate punishment of those who accidentaly kill innocent bystanders, while failing to kill their intended victims.” (Id., at p. 460.) When the intended victim is killed the killer can be punished for his full culpability with regard to the intended death, while any accidental deaths or injuries are prosecuted and punished according to the culpability normally assessed for those acts. (Ibid.) Under those circumstances, the court concluded, there is no need for transferred intent. The Birreuta court declined to follow what it characterized as dictum in Carlson. (Id., at p.458.)

In other cases, the Courts of Appeal have applied the doctrine where both the intended and unintended victims were killed (People v. Flores (1986) 178 Cal.App.3d 74 , 79, 81-82 [ 223 Cal.Rptr. 465 ]) or injured (People v. Neal (1950) 97 Cal.App.2d 668 , 672-673 [ 218 P.2d 556 ]; People v. Rothrock (1937) 21 Cal.App.2d 116 , 118-119 [ 68 P.2d 364 ]). In none of those opinions, however, did the courts consider or discuss any challenge to the applicability of the transferred intent doctrine. “ ‘[C]ases are not authority for propositions not considered therein.’ ” (Isbell v. County of Sonoma (1978) 21 Cal.3d 61 , 73 [ 145 Cal.Rptr. 368 , 577 P.2d 188 ].)

The transferred intent rule for homicide was adopted in this state in People v. Suesser, supra, 142 Cal. 354 . The court quoted from an encyclopedia which, examining the conflicting authorities regarding a victim who is killed “instead” of the one intended, stated, “The better doctrine is that a homicide so committed is as much murder in the first degree as it would have been had the fatal blow reached the person for whom intended. . . .” (Id., at p. 366, quoting 21 American & English Encyclopedia of Law (2d ed.) p. 165.) The court then approved an instruction quoted from a Washington State case: “[W]here a person purposely and of his deliberate and premeditated malice attempts to kill one person, but by mistake or inadventure kills another instead, the law transfers the felonious intent from the object of his assault, and the homicide so committed is murder in the first degree.” (Id., at p. 367, quoting State v. McGonigle (1896) 14 Wash. 594 [ 45 P. 20 ].) As the use of “instead” and the references to “homicide” in the singular indicate, the Suesser court, like the authorities it drew on, had in

Transferred intent is a legal fiction, used to reach what is regarded with virtual unanimity as a just result: when an assailant, through “bad aim” or other mistake, kills the wrong person, he is just as culpable, and should be punished to the same extent, as if he had hit the intended mark. (LaFave & Scott, Criminal Law (1972) § 35, p. 253.) Noting that the rule is “an unsound explanation [for] a very sound conclusion,” the authors of another treatise argue that it should not apply at all to attempted homicides, as the assailant can be punished directly for an attempt on the intended victim: “If, without justification, excuse or mitigation D with intent to kill A fires a shot which misses A but unexpectedly inflicts a non-fatal injury upon B, D is guilty of an attempt to commit murder,—but the attempt was to murder A whom D was trying to kill and not B who was hit quite accidentally. And so far as the criminal law is concerned there is no transfer of this intent one to the other so as to make D guilty of an attempt to murder B.” (Perkins & Boyce, Criminal Law (1982) § 8, pp. 924-925, fn. omitted.)

The purpose of the transferred intent rule—to ensure that prosecution and punishment accord with culpability—would not be served by convicting a defendant of two or more attempted murders for a single act by which he intended to kill only one person. In People v. Birreuta, supra, 162 Cal.App.3d at page 460, the court noted that there is a difference in culpability between an assailant who deliberately sets out to kill one person and in addition kills another accidentally, and one who deliberately kills two victims. Application of the transferred intent rule to the former would wipe out that distinction. Similarly, the attacker who shoots at two or more victims, with the intent of killing all, is more culpable than the one who aims at a single individual, even when the latter also injures a bystander. In the circumstances of this case, the transferred intent instruction obscured that difference.

The Attorney General attempts to distinguish Birreuta on the ground that the defendant there claimed he did not even know his wife was in the room. The defendant’s ignorance that an unintended victim was present has sometimes been relied upon to show the inapplicability of transferred intent (State v. Martin (1938) 342 Mo. 1089 [ 119 S.W.2d 298 , 300]; State v. Gillette (1985) 102 N.M. 695 [ 699 P.2d 626 , 637], dis. opn. of Hendley, J.) But that fact played no part in Birreuta’s rationale and does not suggest a different result here. That Czahara saw Johnson and knew he was present

We conclude that it was error to instruct the jury on transferred intent in this case. If Czahara aimed only at Christie, intending to kill only her, then he was attempting to kill only her. He was prosecuted and convicted of that attempt. There was no need to employ the legal fiction of transferred intent in order to fully punish him for the attempt. Again assuming that he had no intent to shoot Johnson, that shooting should be punished according to the culpability which the law assigns it, but no more. Czahara concedes on appeal, as he did at trial, that, transferred intent aside, he assaulted Johnson with a deadly weapon. California law also provides that maliciously firing into an occupied vehicle is itself a felony, punishable by up to seven years imprisonment. (Pen. Code, § 246.)

There may be cases of attempted murder where the instruction given here is applicable. Where an act intended to kill one person injures another but, for whatever reason, does not constitute an attempt on the intended victim’s life, an instruction on transferred intent may be proper. But where a single act is alleged to be an attempt on two persons’ lives, the intent to kill should be evaluated independently as to each victim, and the jury should not be instructed to transfer intent from one to another.

During deliberations, the jury asked the court whether or not the transferred intent rule applied to the allegations of intentional infliction of great bodily injury. The court answered that it did apply. The great bodily injury enhancements require the state to prove a specific intent to inflict injury. (Pen. Code, § 12022.7; People v. Simpson (1987) 192 Cal.App.3d 1360 , 1365-1367 [ 237 Cal.Rptr. 910 ].) The court’s answer to the jury’s question was incorrect for the same reasons as was the transferred intent instruction on attempted murder.

The incorrect instructions allowed the jury to presume the intent to kill Johnson from the intent to kill Christie. We must reverse unless we conclude that the error was harmless beyond a reasonable doubt. (See People v. Lee (1987) 43 Cal.3d 666 , 674-676 [ 238 Cal.Rptr. 406 , 738 P.2d 752 ] [beyond-a-reasonable-doubt standard applicable to attempted murder instructions which allowed jury to presume intent to kill from implied malice].)

We cannot say that the instructional error was harmless. While there was evidence of hostility between Czahara and Johnson which, together with the manner of the attack, would support an inference that Czahara intended to shoot both victims, the jury could easily have entertained a reasonable

Czahara makes several claims of error regarding limitations placed on a defense psychiatric expert. There was no prejudicial error in these rulings.

Dr. Martin Blinder, a psychiatrist, examined Czahara and reviewed his history. He learned that Czahara had been orphaned at an early age and raised in a convent and in foster homes. Czahara had become excessively dependent on intimacy with women for validation of his self-worth, and was “exquisitely sensitive to rejection from women and with rejection would become very depressed, even abusive.” Czahara told him that when he learned of Christie’s infidelity and desire to end their romance he felt jealous rage and considered suicide. When he unexpectedly saw Christie pull up in front of Johnson’s on September 19 he was filled with love, anger and rejection, and stopped thinking rationally.

Dr. Blinder concluded that Czahara was “addicted” to sexual intimacy, that a threatened cutoff of his “supply . . . precipitates profound agitation, which tends to short circuit his reason, his judgment. And I think it’s while in the throes of this kind of emotional turmoil that he committed his near homicidal acts of 9 [sz'c] September 1986.” Finally, defense counsel asked, “But for these emotional disorders, if that’s what we want to call them, that you’ve described to us, would the events of September 19th have happened?” Dr. Blinder answered, “I think not, sir.”

Before Dr. Blinder testified, the court ruled he could not state an opinion as to whether Czahara acted under the heat of passion. Later, defense counsel made an offer of proof that the psychiatrist would have testified (1) that the defendant was acting in the heat of passion, and (2) that the ordinarily reasonable person in the same circumstances would also have acted in passion. The parties treat this offer as having been declined,

Psychologists, psychiatrists or sociologists may have specialized empirical knowledge regarding the range of reactions to a given provocation, or the reaction of the statistically average individual in a given community. But this information would not materially assist the jury in its task; the jury must determine not only if the reaction is ordinary but if it is reasonable, and that determination depends more on (perhaps unarticulated) community norms than on empirically discoverable averages.

Czahara also complains that Dr. Blinder was not permitted to use the term “heat of passion” in describing Czahara’s state of mind on September 19. We need not decide whether that restriction was correct under Penal Code section 29. Dr. Blinder testified to the “profound agitation” and “emotional turmoil” which “short circuited” Czahara’s reason and judgment on September 19. The jury was instructed that heat of passion was a state in which “judgment give[s] way to impulse and rashness . . . .” Thus, Dr. Blinder’s conclusions were in terms which directly related to the issue before the jury, and it is not reasonably probable that a different verdict would have resulted had the psychiatrist been permitted to use the label “heat of passion.”

Finally, Czahara claims that Dr. Blinder was improperly prevented from testifying that Czahara’s emotional state caused him to act as he did. This claim is not supported by the record, which shows that Dr. Blinder testified that the events would not have occurred but for Czahara’s emotional disorders.

The conviction for attempted murder of Ronald Johnson (count three) is reversed, as is the finding of intentional infliction of great bodily injury in

King, J., and Haning, J., concurred.