CALCRIM No. 2721. Assault by Prisoner (Pen. Code, § 4501)

Judicial Council of California Criminal Jury Instructions (2023 edition)

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2721.Assault by Prisoner (Pen. Code, § 4501)

The defendant is charged [in Count ] with assault with (force

likely to produce great bodily injury/a deadly weapon) while serving a

state prison sentence [in violation of Penal Code section 4501].

To prove that the defendant is guilty of this crime, the People must

prove that:

[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;]

[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;

[AND]

5. When (he/she) acted, the defendant was confined in a [California]

state prison(;/.)

<Give element 6 when self-defense or defense of another is an issue raised

by the evidence.>

[AND

6. 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. It is not required that he or she intend to break the law, hurt

someone else, or gain any advantage.

[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.]

612

[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.]

A person is confined in a state prison if he or she is (confined 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 confined 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 confined in a state prison.]

New January 2006; Revised 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 6 and any

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613

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.

Give the bracketed definition of “application of force and apply force” on request.

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.

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.

In the definition of “serving a sentence in a state prison,” 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].)

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].)

Related Instructions

CALCRIM No. 875, Assault With Deadly Weapon or Force Likely to Produce Great

Bodily Injury.

AUTHORITY

• Elements of Assault by Prisoner. Pen. Code, § 4501.

• Elements of Assault With Deadly Weapon or Force Likely to Produce Great

Bodily Injury. 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].

CALCRIM No. 2721 CRIMES AGAINST GOVERNMENT

614

• 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]].

• Confined in State Prison Defined. Pen. Code, § 4504.

• Underlying Conviction Need Not Be Valid. Wells v. California (9th Cir. 1965)

352 F.2d 439, 442.

• 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. Noah (1971) 5 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].

RELATED ISSUES

Not Serving a Life Sentence

Previously, this statute did not apply to an inmate “undergoing a life sentence.” (See

People v. Noah (1971) 5 Cal.3d 469, 477 [96 Cal.Rptr. 441, 487 P.2d 1009].) The

statute has been amended to remove this restriction, effective January 1, 2005. If the

case predates this amendment, the court must add to the end of element 5, “for a

term other than life.”

SECONDARY SOURCES

1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the

Person, §§ 61, 63.

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes

Against the Person, § 142.11[3] (Matthew Bender).

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Page last reviewed May 2023