CALCRIM No. 2720. Assault by Prisoner Serving Life Sentence (Pen. Code, § 4500)
Judicial Council of California Criminal Jury Instructions (2023 edition)
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I. CRIMES INVOLVING PRISONERS
(i) Assault and Battery
2720.Assault by Prisoner Serving Life Sentence (Pen. Code,
§ 4500)
The defendant is charged [in Count ] with assault with
(force likely to produce great bodily injury/a deadly weapon) with malice
aforethought, while serving a life sentence [in violation of Penal Code
section 4500].
To prove that the defendant is guilty of this crime, the People must
prove that:
<Alternative 1A - force with weapon>
[1. The defendant did an act with a deadly weapon that by its nature
would directly and probably result in the application of force to a
person;]
<Alternative 1B - force without weapon>
[1. The defendant did an act that by its nature would directly and
probably result in the application of force to a person, and the force
used was likely to produce great bodily injury;]
2. The defendant did that act willfully;
3. When the defendant acted, (he/she) was aware of facts that would
lead a reasonable person to realize that (his/her) act by its nature would
directly and probably result in the application of force to someone;
4. When the defendant acted, (he/she) had the present ability to apply
force (likely to produce great bodily injury/with a deadly weapon) to a
person;
5. The defendant acted with malice aforethought;
[AND]
<Alternative 6A - defendant sentenced to life term>
[6. When (he/she) acted, the defendant had been sentenced to a
maximum term of life in state prison [in California](;/.)]
<Alternative 6B - defendant sentenced to life and to determinate term>
[6. When (he/she) acted, the defendant had been sentenced to both a
specific term of years and a maximum term of life in state prison [in
California](;/.)]
<Give element 7 when self-defense or defense of another is an issue raised
by the evidence.>
605
[AND
7. The defendant did not act (in self-defense/ [or] in defense of
someone else).]
Someone commits an act willfully when he or she does it willingly or on
purpose.
[The terms application of force and apply force mean to touch in a
harmful or offensive manner. The slightest touching can be enough if it
is done in a rude or angry way. Making contact with another person,
including through his or her clothing, is enough. The touching does not
have to cause pain or injury of any kind.]
[The touching can be done indirectly by causing an object [or someone
else] to touch the other person.]
[The People are not required to prove that the defendant actually
touched someone.]
No one needs to actually have been injured by defendant’s act. But if
someone was injured, you may consider that fact, along with all the
other evidence, in deciding whether the defendant committed an assault[,
and if so, what kind of assault it was].
[A deadly weapon is any object, instrument, or weapon [that is inherently
deadly or dangerous or one] that is used in such a way that it is capable
of causing and likely to cause death or great bodily injury.]
[An object is inherently deadly if it is deadly or dangerous in the
ordinary use for which it was designed.]
[In deciding whether an object is a deadly weapon, consider all the
surrounding circumstances.]
[Great bodily injury means significant or substantial physical injury. It is
an injury that is greater than minor or moderate harm.]
[The term (great bodily injury/deadly weapon) is defined in another
instruction.]
There are two kinds of malice aforethought, express malice and implied
malice. Proof of either is sufficient to establish the state of mind required
for this crime.
The defendant acted with express malice if (he/she) unlawfully intended
to kill the person assaulted.
The defendant acted with implied malice if:
1. (He/She) intentionally committed an act.
2. The natural and probable consequences of the act were
dangerous to human life.
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3. At the time (he/she) acted, (he/she) knew (his/her) act was
dangerous to human life.
AND
4. (He/She) deliberately acted with conscious disregard for human
life.
Malice aforethought does not require hatred or ill will toward the victim.
It is a mental state that must be formed before the act is committed. It
does not require deliberation or the passage of any particular period of
time.
[A person is sentenced to a term in a state prison if he or she is
(sentenced to confinement in <insert name of institution from
Pen. Code, § 5003>/committed to the Department of Corrections and
Rehabilitation[, Division of Juvenile Justice,]) by an order made
according to law[, regardless of both the purpose of the (confinement/
commitment) and the validity of the order directing the (confinement/
commitment), until a judgment of a competent court setting aside the
order becomes final]. [A person may be sentenced to a term in a state
prison even if, at the time of the offense, he or she is confined in a local
correctional institution pending trial or is temporarily outside the prison
walls or boundaries for any permitted purpose, including but not limited
to serving on a work detail.] [However, a prisoner who has been released
on parole is not sentenced to a term in a state prison.]]
New January 2006; Revised February 2013, August 2016, September 2019,
September 2020, March 2022
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
If there is sufficient evidence of self-defense or defense of another, the court has a
sua sponte duty to instruct on the defense. Give bracketed element 7 and any
appropriate defense instructions. (See CALCRIM Nos. 3470-3477.)
In element 1, give alternative 1A if it is alleged the assault was committed with a
deadly weapon. Give alternative 1B if it is alleged that the assault was committed
with force likely to produce great bodily injury.
In element 6, give alternative 6A if the defendant was sentenced to only a life term.
Give element 6B if the defendant was sentenced to both a life term and a
determinate term. (People v. Superior Court of Monterey (Bell) (2002) 99
Cal.App.4th 1334, 1341 [121 Cal.Rptr.2d 836].)
Give the bracketed definition of “application of force and apply force” on request.
CRIMES AGAINST GOVERNMENT CALCRIM No. 2720
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Give the relevant bracketed definitions unless the court has already given the
definition in other instructions. In such cases, the court may give the bracketed
sentence stating that the term is defined elsewhere.
Give the bracketed phrase “that is inherently deadly or one” and give the bracketed
definition of inherently deadly only if the object is a deadly weapon as a matter of
law. (People v. Stutelberg (2018) 29 Cal.App.5th 314, 317-318 [240 Cal.Rptr.3d
156].)
Give the bracketed portion that begins with “In deciding whether” if the object is
not a weapon as a matter of law and is capable of innocent uses. (People v. Aguilar
(1997) 16 Cal.4th 1023, 1028-1029 [68 Cal.Rptr.2d 655, 945 P.2d 1204]; People v.
Godwin (1996) 50 Cal.App.4th 1562, 1573-1574 [58 Cal.Rptr.2d 545].)
If determining whether the item is an inherently deadly weapon requires resolution
of a factual issue, give both bracketed instructions.
On request, give the bracketed definition of “sentenced to a term in state prison.”
Within that definition, give the bracketed portion that begins with “regardless of the
purpose,” or the bracketed second or third sentence, if requested and relevant based
on the evidence.
Do not give an attempt instruction in conjunction with this instruction. There is no
crime of “attempted assault” in California. (In re James M. (1973) 9 Cal.3d 517,
519, 521-522 [108 Cal.Rptr. 89, 510 P.2d 33].)
Penal Code section 4500 provides that the punishment for this offense is death or
life in prison without parole, unless “the person subjected to such assault does not
die within a year and a day after” the assault. If this is an issue in the case, the
court should consider whether the time of death should be submitted to the jury for
a specific factual determination pursuant to Apprendi v. New Jersey (2000) 530 U.S.
466, 490 [120 S.Ct. 2348, 147 L.Ed.2d 435].
The second sentence of the great bodily injury definition could result in error if the
prosecution improperly argues great bodily injury may be shown by greater than
minor injury alone. (Compare People v. Medellin (2020) 45 Cal.App.5th 519,
533-535 [258 Cal.Rptr.3d 867] [the definition was reasonably susceptible to
prosecutor’s erroneous argument that the injury need only be greater than minor]
with People v. Quinonez (2020) 46 Cal.App.5th 457, 466 [260 Cal.Rptr.3d 86]
[upholding instructions containing great bodily injury definition as written].)
Defense - Instructional Duty
As with murder, the malice required for this crime may be negated by evidence of
heat of passion or imperfect self-defense. (People v. St. Martin (1970) 1 Cal.3d 524,
530-531 [83 Cal.Rptr. 166, 463 P.2d 390]; People v. Chacon (1968) 69 Cal.2d 765,
780-781 [73 Cal.Rptr. 10, 447 P.2d 106].) If the evidences raises an issue about one
or both of these potential defenses, the court has a sua sponte duty to give the
appropriate instructions, CALCRIM No. 570, Voluntary Manslaughter: Heat of
Passion - Lesser Included Offense, or CALCRIM No. 571, Voluntary Manslaughter:
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Imperfect Self-Defense - Lesser Included Offense. The court must modify these
instructions for the charge of assault by a life prisoner.
Related Instructions
CALCRIM No. 875, Assault With Deadly Weapon or Force Likely to Produce Great
Bodily Injury.
CALCRIM No. 520, Murder With Malice Aforethought.
AUTHORITY
• Elements of Assault by Life Prisoner. Pen. Code, § 4500.
• Elements of Assault With Deadly Weapon or Force Likely. Pen. Code, §§ 240,
245(a)(1)-(3) & (b).
• Willful Defined. Pen. Code, § 7(1); People v. Lara (1996) 44 Cal.App.4th 102,
107 [51 Cal.Rptr.2d 402].
• Deadly Weapon Defined. People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029
[68 Cal.Rptr.2d 655, 945 P.2d 1204].
• Least Touching. People v. Myers (1998) 61 Cal.App.4th 328, 335 [71 Cal.Rptr.2d
518] [citing People v. Rocha (1971) 3 Cal.3d 893, 899-900, fn. 12 [92 Cal.Rptr.
172, 479 P.2d 372]].
• Malice Equivalent to Malice in Murder. People v. St. Martin (1970) 1 Cal.3d
524, 536-537 [83 Cal.Rptr. 166, 463 P.2d 390]; People v. Chacon (1968) 69
Cal.2d 765, 780-781 [73 Cal.Rptr. 10, 447 P.2d 106].
• Malice Defined. Pen. Code, § 188; People v. Dellinger (1989) 49 Cal.3d 1212,
1217-1222 [264 Cal.Rptr. 841, 783 P.2d 200]; People v. Nieto Benitez (1992) 4
Cal.4th 91, 103-105 [13 Cal.Rptr.2d 864, 840 P.2d 969].
• Ill Will Not Required for Malice. People v. Sedeno (1974) 10 Cal.3d 703, 722
[112 Cal.Rptr. 1, 518 P.2d 913], overruled on other grounds in People v. Flannel
(1979) 25 Cal.3d 668, 684, fn. 12 [160 Cal.Rptr. 84, 603 P.2d 1].
• Undergoing Sentence of Life. People v. Superior Court of Monterey (Bell)
(2002) 99 Cal.App.4th 1334, 1341 [121 Cal.Rptr.2d 836].
• Inherently Deadly Defined. People v. Perez (2018) 4 Cal.5th 1055, 1065 [232
Cal.Rptr.3d 51, 416 P.3d 42]; People v. Aguilar (1997) 16 Cal.4th 1023,
1028-1029 [68 Cal.Rptr.2d 655, 945 P.2d 1204].
• Examples of Noninherently Deadly Weapon. People v. Aledamat (2019) 8
Cal.5th 1, 6 [251 Cal.Rptr.3d 371, 447 P.3d 277] [box cutter]; People v. Perez
(2018) 4 Cal.5th 1055, 1065 [232 Cal.Rptr.3d 51, 416 P.3d 42] [vehicle]; People
v. McCoy (1944) 25 Cal.2d 177, 188 [153 P.2d 315] [knife].
LESSER INCLUDED OFFENSES
• Assault With Deadly Weapon or Force Likely to Produce Great Bodily
Injury - Not a Prisoner. Pen. Code, § 245; see People v. St. Martin (1970) 1
Cal.3d 524, 536 [83 Cal.Rptr. 166, 463 P.2d 390]; People v. Noah (1971) 5
CRIMES AGAINST GOVERNMENT CALCRIM No. 2720
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Cal.3d 469, 478-479 [96 Cal.Rptr. 441, 487 P.2d 1009].
• Assault. Pen. Code, § 240; People v. Noah (1971) 5 Cal.3d 469, 478-479 [96
Cal.Rptr. 441, 487 P.2d 1009].
Note: In People v. Noah (1971) 5 Cal.3d 469, 476-477 [96 Cal.Rptr. 441, 487
P.2d 1009], the court held that assault by a prisoner not serving a life sentence,
Penal Code section 4501, is not a lesser included offense of assault by a prisoner
serving a life sentence, Penal Code section 4500. The court based its on
conclusion on the fact that Penal Code section 4501 includes as an element of the
offense that the prisoner was not serving a life sentence. However, Penal Code
section 4501 was amended, effective January 1, 2005, to remove this element. The
trial court should, therefore, consider whether Penal Code section 4501 is now a
lesser included offense to Penal Code section 4500.
RELATED ISSUES
Status as Life Prisoner Determined on Day of Alleged Assault
Whether the defendant is sentenced to a life term is determined by his or her status
on the day of the assault. (People v. Superior Court of Monterey (Bell) (2002) 99
Cal.App.4th 1334, 1341 [121 Cal.Rptr.2d 836]; Graham v. Superior Court (1979) 98
Cal.App.3d 880, 890 [160 Cal.Rptr. 10].) It does not matter if the conviction is later
overturned or the sentence is later reduced to something less than life. (People v.
Superior Court of Monterey (Bell),supra, 99 Cal.App.4th at p. 1341; Graham v.
Superior Court,supra, 98 Cal.App.3d at p. 890.)
Undergoing Sentence of Life
This statute applies to “[e]very person undergoing a life sentence . . . .” (Pen. Code,
§ 4500.) In People v. Superior Court of Monterey (Bell) (2002) 99 Cal.App.4th
1334, 1341 [121 Cal.Rptr.2d 836], the defendant had been sentenced both to life in
prison and to a determinate term and, at the time of the assault, was still technically
serving the determinate term. The court held that he was still subject to prosecution
under this statute, stating “a prisoner who commits an assault is subject to
prosecution under section 4500 for the crime of assault by a life prisoner if, on the
day of the assault, the prisoner was serving a sentence which potentially subjected
him to actual life imprisonment, and therefore the prisoner might believe he had
‘nothing left to lose’ by committing the assault.” (Ibid.)
Error to Instruct on General Definition of Malice and General Intent
“Malice,” as used in Penal Code section 4500, has the same meaning as in the
context of murder. (People v. St. Martin (1970) 1 Cal.3d 524, 536-537 [83 Cal.Rptr.
166, 463 P.2d 390]; People v. Chacon (1968) 69 Cal.2d 765, 780-781 [73 Cal.Rptr.
10, 447 P.2d 106].) Thus, it is error to give the general definition of malice found in
Penal Code section 7, subdivision 4. (People v. Jeter (2005) 125 Cal.App.4th 1212,
1217 [23 Cal.Rptr.3d 402].) It is also error to instruct that Penal Code section 4500
is a general intent crime. (Ibid.)
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SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 58-60.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.11[3] (Matthew Bender).
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© Judicial Council of California.
