2721. Assault by Prisoner
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.
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. 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.>
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.]
[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 (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 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.]
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.
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].)
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, 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]].
Confined in State Prison Defined. Pen. Code, § 4504.
Underlying Conviction Need Not Be Valid. Wells v. California (1965) 352 F.2d 439, 442.
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against the Person, § 61.
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. 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].
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."
(New January 2006)