California Criminal Jury Instructions (CALCRIM) (2017)

2721. Assault by Prisoner

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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:
<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;
[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.]
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[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.]
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
BENCH NOTES
Instructional Duty
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 6 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.
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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.
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].)
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 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]].
• 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.
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).
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].
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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.”
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