2720. Assault by Prisoner Serving Life Sentence
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.
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;
<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.>
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.]
[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 consequences of the act were dangerous to human life.
3. At the time (he/she) acted, (he/she) knew (his/her) act was dangerous to human life.
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 (the Youth Authority/Corrections)) 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.]]
The court has a sua sponte duty to give this 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.
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.
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].
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: Imperfect Self-Defense—Lesser Included Offense. The court must modify these instructions for the charge of assault by a life prisoner.
CALCRIM No. 520, Murder With Malice Aforethought.
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, subd. 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].
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against the Person, §§ 58-60.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, § 142.11 (Matthew Bender).
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 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.
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.)
(New January 2006)