CROSBY, J.
I concur specially because I have considerable difficulty with the notion that assault with a deadly weapon is, as a matter of law, a crime of moral turpitude. Nevertheless, four published opinions have so held with nary a dissent on that point. (People v. Valdez (1986) 177 Cal.App.3d 680 [223 Cal.Rptr. 149]; People v. Means (1986) 177 Cal.App.3d 138 [222 Cal.Rptr. 735]; People v. Armendariz (1985) 174 Cal.App.3d 674 [220 Cal.Rptr. 229]; People v. Cavazos (1985) 172 Cal.App.3d 589 [218 Cal.Rptr. 269]; see maj. opn., this page, fn. 2.) In the face of such unanimity my concerns are possibly unwarranted (and probably of no practical value to this defendant), but I believe they are well-founded.
The law permits impeachment of witnesses with certain felony convictions because it may assist the trier of fact to determine if a former offender [465]is a present prevaricator. Whether there is any such connection in the real world might present an interesting research project for a behavioral scientist: e.g., “Can There be Honor Among Thieves?: A Social Study Comparing the Propensity to Lie of Doctors, Lawyers, and Indian Chiefs with Inmates of California Prisons.” But most persons would probably agree that felonies of recent vintage displaying a dishonest bent, such as treason, theft, and especially perjury, do bear a rational relationship to credibility.
The difficulty arises where, as here, the court is confronted with a felony not involving an element of dishonesty. Years of prosecuting, defending, and judging accused persons have taught me a felony conviction of that sort is not a particularly strong indicator of an individual’s truthfulness as a witness. After Proposition 8, however, such a felony may be admissible for impeachment, provided only that it necessarily involves moral turpitude. (See People v. Castro (1985) 38 Cal.3d 301 [211 Cal.Rptr. 719, 696 P.2d 111].) As Castro explained, “felony convictions which do not involve ‘readiness to do evil’—moral turpitude, if you will—bears [sic] no rational relation to the witness’ readiness to lie.” (Id., at p. 314.)
The Supreme Court conceded the moral turpitude determination “has proved awkward” in jurisdictions where it has been the rule. (Id., at p. 316, fn. 11.) It added, however, “Some of the problems may be ameliorated by the fact that, in connection with other statutes, considerable bodies of law concerning the characterization of felonies as involving or not involving moral turpitude have developed. [Citations.]” (Ibid.) Among the court’s citations to this passage is a leading text’s discussion of attorney disciplinary proceedings. (1 Witkin, Cal. Procedure (2d ed. 1970) Attorneys, § 195.) But, as will appear shortly, under the present rules attorney discipline cases are poor authority in deciding whether a particular crime is one of moral turpitude; and the Court of Appeal has declined to follow the Supreme Court’s assessment of the crime of assault with a deadly weapon in that specific context.
For purposes of impeachment, does assault with a deadly weapon demonstrate a readiness to do evil or moral turpitude or depravity? It probably does in most instances. Throwing a hatchet at a baby, shooting into a crowd, and, as apparently was the case here, deliberately striking another motorist with an automobile would certainly seem to qualify. Oddly, however, the court cannot examine the facts of the former conviction; for it must be viewed in the abstract under the so-called “least adjudicated elements” test. (People v. Castro, supra, 38 Cal.3d at p. 317.) In other words, if the statute can be violated in a manner not constituting moral turpitude, it cannot be used to impeach no matter how heinous the particular circumstances of the witness’s crime. We have recently criticized the similar [466]“viewed in the abstract” approach used in analyzing the underlying felony for purposes of the second degree felony-murder rule; I believe many of our observations in that case are equally applicable here. (People v. Patterson* (Cal.Ápp.)
Assault with a deadly weapon is virtually defined by its title. It is an assault on the person of another with a deadly weapon “or by any means of force likely to produce great bodily injury.” (Pen. Code, § 245, subd. (a)(1).) Simple assault is merely an attempted battery. At common law it was a specific intent crime because all attempts were, by definition, in that category. For policy reasons, however, California has determined assault with a deadly weapon is nonetheless a general intent crime. (People v. Rocha (1971) 3 .Cal.3d 893, 898-899 [92 Cal.Rptr. 172, 479 P.2d 372]; People v. Hood (1969) 1 Cal.3d 444, 455-459 [82 Cal.Rptr. 618, 462 P.2d 370].) The policy is based on a frank determination to remove intoxication (not arising to a level of unconsciousness) as a defense to assault with a deadly weapon: “Those crimes that have traditionally been characterized as crimes of specific intent are not affected by our holding here. The difference in mental activity between formulating an intent to commit a battery and formulating an intent to commit a battery for the purpose of raping or killing may be slight, but it is sufficient to justify drawing a line between them and considering evidence of intoxication in the one case and disregarding it in the other.” (Hood, supra, at p. 458.)
The upshot is, as the law presently stands, intoxicated persons who commit an act amounting to an assault with a deadly weapon may not only be convicted of that crime, but can also be impeached with the conviction when they offer alcohol-free testimony. The thought is a sobering one for several reasons.
To begin with, in the context of attorney discipline cases, the Supreme Court does not view the crime in the abstract (In re Strick (1983) 34 Cal.3d 891, 902-903 [196 Cal.Rptr. 509, 671 P.2d 1251]) and has determined assault with a deadly weapon does not necessarily involve moral turpitude. (In re Rothrock (1940) 16 Cal.2d 449, 459 [106 P.2d 907, 131 A.L.R. 226].) But, using the required abstract approach in impeachment situations, the Court of Appeal has consistently reached the opposite conclusion with respect to the same offense in opinions the Supreme Court has allowed to remain published. (People v. Valdez, supra, 177 Cal.App.3d 680; People v. Means, supra, 177 Cal.App.3d 138; People v. Armendariz, supra, 174 Cal.App.3d 674; People v. Cavazos, supra, 172 Cal.App.3d 589.) Several of these cases struggled to distinguish the attorney discipline authority. Their reasoning is unpersuasive to me: “In those cases, the [Supreme C]ourt was [467]formulating a standard by which to determine the attorney’s fitness to continue his practice according to the ethical standards of his profession. Simple fairness requires the court to look behind the conviction to ascertain the precise nature of the assault and the circumstances in which it occurred. The bare fact of conviction does not determine the attorney’s fitness to practice.” (Cavazos, supra, at p. 595; see also Armendariz, supra, at p. 682 [making a similar but equally illogical argument in refusing to accord “simple fairness” to a criminal accused].)
A cynic might observe that the law cannot have it both ways. Under the current system, we either tolerate persons who cannot be trusted to testify truthfully under oath to practice law or we permit some honest persons with life or liberty at stake to be impeached with a conviction that would not merit discipline for an attorney. But why should lawyers, with only a privileged means of obtaining a livelihood in the balance, be accorded more due process, i.e., “simple fairness,” than those accused of crimes?
A second major difficulty with the current state of the law is that the line between assault with a deadly weapon and no crime at all is often a very narrow one. For example, throwing a knife in the direction of another may or may not constitute assault with a deadly weapon depending on the proximity of its flight to the alleged victim. (People v. Dodel (1888) 77 Cal. 293 [19 P. 484].) Pointing a gun at the ground and swinging it about the head while stating, “ 1 “Don’t come any closer; your life is in danger,” ’ ” does not constitute the crime at all. (People v. Diamond (1939) 33 Cal.App.2d 518, 520 [92 P.2d 486].)
On the other hand, an illegal but conditional threat to shoot where the gun is pointed only at the ground may be sufficient. (People v. McMakin (1857) 8 Cal. 547.) Of course, if the weapon is unloaded, no assault with a deadly weapon can occur unless it is used as a club. (People v. Sylva (1904) 143 Cal. 62 [76 P. 814].) Thus, a drunk who encourages another to leave a bar by threatening use of a firearm may or may not be guilty of assault with a deadly weapon. The determination will turn on a fact the defendant may not even know or remember, i.e., whether the gun is loaded.
An assault with a deadly weapon may also be committed by means of force likely to cause great bodily injury. (People v. Chavez (1968) 268 Cal.App.2d 381, 384 [73 Cal.Rptr. 865].) Consequently, the drunken instigator of a barroom brawl may have his credibility as a witness called into question in future cases merely because he once unsuccessfully attempted to kick a fellow patron in such a skirmish. (See People v. Covino (1980) 100 Cal.App.3d 660, 667 [161 Cal.Rptr. 155] and People v. Hopkins (1978) 78 Cal.App.3d 316, 320 [142 Cal.Rptr. 572] [no actual injury required in assault with a deadly weapon prosecution].) This is so even though he only [468]harbored the garden variety general intent required to commit a simple battery. And, viewed in the abstract, not even felony batteries involve moral turpitude. (People v. Mansfield (1988) 200 Cal.App.3d 82 [245 Cal.Rptr. 800]; see also People v. Coad (1986) 181 Cal.App.3d 1094, 1114 [226 Cal.Rptr. 386] (cone, and dis. opn. of Kline, P. J.).)
Finally, it is no defense to an assault with a deadly weapon accusation that the accused entertained an honest belief in the need for self-defense, if the belief was unreasonable. (People v. Flannel (1979) 25 Cal.3d 668, 679 [160 Cal.Rptr. 84, 603 P.2d 1]; People v. Walton (1982) 136 Cal.App.3d 76, 79 [186 Cal.Rptr. 18].) In Walton an overly zealous but civic-minded defendant precipitated a neighborhood gun battle with undercover police officers whom he honestly (but unreasonably) believed to be drug dealers. The conviction was affirmed. Should the testimony of Walton the witness be stigmatized hereafter? The notion strikes me as idiotic. If behavior does have anything to do with credibility under oath, the facts of Walton’s crime arguably suggest it is far more likely than not he would be truthful because of his passion for upholding the law. Nor is it reasonable to infer in the more common case, where inspiration for the defendant’s past conduct emanated from a bottle or a needle, that he is more susceptible to fudging under oath when sober than other mortals. It is one thing to hold persons responsible as a matter of policy for degrading their own power to reason when they threaten or attempt to injure a fellow human being; that I understand. But it is quite another to suggest the offender is likely to fib in some unrelated proceeding based on that conviction.
The law should be amended in this area in one of two ways. Either assault with a deadly weapon should never be an appropriate offense for impeachment, or the abstract test should be abandoned and trial courts permitted to review the particulars of the offense itself out of the presence of the jury to make the determination our Supreme Court routinely undertakes in attorney discipline cases. Some assaults with a deadly weapon do involve moral turpitude; others within the easy imagination of this observer clearly do not.
Respondent’s petition for review by the Supreme Court was denied September 22, 1988. Kaufman, J., was of the opinion that the petition should be granted.
Reporter’s Note: Review granted Sept. 15, 1988. For Supreme Court opinion see 49 Cal.3d 615 [262 Cal.Rptr. 195, 778 P.2d 549].