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25 Hastings L.J. 657 (1973-1974)
Assault-Related Conduct under the Proposed California Criminal Code

handle is hein.journals/hastlj25 and id is 683 raw text is: ASSAULT-RELATED CONDUCT UNDER THE
In 1872 the California Legislature defined criminal assault as an
unlawful attempt, coupled with a present ability, to commit a violent
injury on the person of another.' Today, the adequacy of this defini-
tion is being questioned by the California Legislature as it endeavors to
revise the Penal Code and enact a new Criminal Code.2 The purpose
of this note is to encourage the legislature to enact revisions of the as-
sault-related offenses which define with particularity the types of con-
duct which should be punished.
This note first will analyze the current law of criminal assault in
California and will illustrate the role which the courts have played in
shaping it.3 Particular attention will be paid to three distinct prob-
lems of judicial interpretation: the present ability requirement, the in-
tent requirement, and the relationship between the statutory definition
of assault and the statutory definition of general criminal attempt. This
initial part of the discussion will describe the sphere of conduct punish-
able by California's current definition of assault. This part of the
note will also question the adequacy of the current legislative definition
of assault as a guide for judicial interpretation.
The note will next review and criticize the proposed offenses of
aggressive conduct and aggravated criminal injury which would
replace the current Penal Code offenses of assault and aggravated as-
sault if the proposed Criminal Code is enacted into law.   This part of
the note will demonstrate that the proposed offenses would do little
more than change the names and rearrange the present definitions of
assault and aggravated assault.
1. CAL. PEN. CODE § 240 (West 1970).
2. The Joint Legislative Committee for Revision of the Penal Code was formed
in 1963. The Committee published three tentative drafts between 1967 and 1969. The
project was reorganized in 1969 to include a full-time staff composed of a project
director and two attorneys who prepared a staff draft of the proposed Criminal Code
with the aid of an Advisory Board. JOINT LEGISLATIVE COMM. FOR REVISION OF THE
PENAL CODE, CRIMINAL CODE ill (Staff Draft 1971) [hereinafter cited as CRIMINAL CODE
DRAFT]. A bill to enact a new criminal code was introduced in the California Legisla-
ture on January 15, 1973, and was passed by the Senate on January 21, 1974. S.B.
39, § 1 (1973), as amended Jan. 21, 1974 [hereinafter cited as S.B. 39].
3. See text accompanying notes 7-64 infra.
4. See text accompanying notes 65-86 infra.


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