People v. Korona

119 Mich. App. 369 (1982) 326 N.W.2d 143

PEOPLE
v.
KORONA

Docket No. 53177.

Michigan Court of Appeals.

Decided September 9, 1982.

Edwards & Edwards (by William J. Richards), for defendant.

Before: BRONSON, P.J., and R.M. MAHER and M. WARSHAWSKY,^[*] JJ.

PER CURIAM.

Following a jury trial held on April 29, 1980, in Wayne County Circuit Court, defendant, Ricky Dean Korona, was found guilty of felonious assault, MCL 750.82; MSA 28.277, malicious destruction of property over $100, MCL 750.377a; MSA 28.609(1), and felony-firearm, MCL 750.227b; MSA 28.424(2), but mentally ill, MCL 768.36; MSA 28.1059. On July 7, 1980, defendant was sentenced to two years probation on the first two counts and to the two-year mandatory imprisonment for the felony-firearm conviction. Defendant appeals by right.

The trial judge instructed the jury that felonious assault was a general intent crime and that voluntary intoxication was not a defense thereto. These instructions constitute reversible error.

Felonious assault is a specific intent crime. See People v Wilson, 113 Mich. App. 591; 318 NW2d 479 (1981); People v Owens, 108 Mich. App. 600, 607; 310 NW2d 819 (1981), lv den 412 Mich. 866 (1981); People v Braddock, 106 Mich. App. 11, 13-14; 307 NW2d 341 (1980); People v Slager, 105 Mich. App. 593, 598; 307 NW2d 376 (1981); People v McMaster, 105 Mich. App. 162, 167-172; 306 NW2d 434 (1981), lv den 411 Mich. 988 (1981); People v Rae, 103 Mich. App. 293, 297-300; 302 NW2d 845 (1980); People v Szymanski, 102 Mich. App. 745, 746-747; 302 NW2d 316 (1981), lv den 411 Mich. 863 (1981). Defense counsel's failure to object to the instruction at trial does not preclude review of this issue inasmuch as the trial judge is obligated to charge the jury on the law applicable to the case. Wilson, supra; People v Ideis, 101 Mich. App. 179, 183; 300 NW2d 489 (1980), lv den 411 Mich. 854 (1981). Thus, the trial judge erred in instructing the jury that voluntary intoxication was not a defense to the crime of felonious assault. Wilson, supra. Voluntary intoxication is a defense to a crime requiring specific intent. People v Crittle, 390 Mich. 367; 212 NW2d 196 (1973).

Defendant also contends that the mandatory two-year term of imprisonment for a felony-firearm violation does not apply to defendants found guilty but mentally ill. In addition, defendant argues that the two-year term of imprisonment constitutes cruel and unusual punishment, in violation of Const 1963, art 1, § 16. Although we reverse defendant's conviction on his first claim of error, we address the present argument to aid the trial court.

We are not persuaded by defendant's argument. Had the Legislature intended to exempt defendants found guilty but mentally ill from the mandatory sentencing provision, it would have expressly done so. Cf. People v Abend, 94 Mich. App. 13, 14; 286 NW2d 926 (1979). Neither the felony-firearm statute, MCL 750.227b; MSA 28.424(2), nor the guilty but mentally ill statute, MCL 768.36; MSA 28.1059, provides the exception claimed by defendant. Instead, MCL 768.36(3); MSA 28.1059(3) states that "[i]f a defendant is found guilty but mentally ill * * * the court shall impose any sentence which could be imposed pursuant to law upon a defendant who is convicted of the same offense". In Wayne County Prosecutor v Recorder's Court Judge, 406 Mich. 374, 391; 280 NW2d 793 (1979), reh den 406 Mich. 1127 (1979), app dis sub nom Brintley v Michigan, 444 U.S. 948; 100 S. Ct. 418; 62 L. Ed. 2d 317 (1979), the Court found that the Legislature expressed its judgment in the felony-firearm statute that carrying a firearm during the commission of a felony entails a distinct social harm inimical to the public health, safety, and welfare. Thus, the mandatory term of imprisonment for violating the felony-firearm statute applies to defendants found guilty but mentally ill.

The mandatory two-year sentence for violating the felony-firearm statute, as applied to defendant, does not constitute cruel and unusual punishment, nor does it violate the rehabilitation test defined in People v Lorentzen, 387 Mich. 167, 180; 194 NW2d 827 (1972); Wayne County Prosecutor v Recorder's Court Judge, 92 Mich. App. 433; 285 NW2d 318 (1979), lv den 408 Mich. 905 (1980). Individual offenders receive psychiatric care under the sentence; if it is not provided, they may seek a writ of mandamus to compel the Department of Corrections to carry out its duty. See People v Willsie, 96 Mich. App. 350, 355; 292 NW2d 145 (1980).

Reversed and remanded.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.