California Criminal Jury Instructions (CALCRIM) (2017)
2721. Assault by PrisonerDownload PDF
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
<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
<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
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
5. When (he/she) acted, the defendant was conﬁned in a [California]
<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 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
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
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
The court has a sua sponte duty to give this instruction deﬁning the elements of
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.
CALCRIM No. 2721 CRIMES AGAINST GOVERNMENT
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].)
CALCRIM No. 875, Assault With Deadly Weapon or Force Likely to Produce
Great Bodily Injury.
• 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.
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 (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].
CRIMES AGAINST GOVERNMENT CALCRIM No. 2721
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.”
CALCRIM No. 2721 CRIMES AGAINST GOVERNMENT