California Criminal Jury Instructions (CALCRIM) (2017)
860. Assault on Firefighter or Peace Officer With Deadly Weapon or Force Likely to Produce Great Bodily InjuryDownload PDF
(i) With Weapon or Force Likely
(A) On Speciﬁed People
860.Assault on Fireﬁghter or Peace Officer With Deadly Weapon
or Force Likely to Produce Great Bodily Injury (Pen. Code,
§§ 240, 245(c) & (d))
The defendant is charged [in Count ] with assault with (force
likely to produce great bodily injury/a deadly weapon/a ﬁrearm/a
semiautomatic ﬁrearm/a machine gun/an assault weapon/a .50 BMG
riﬂe) on a (ﬁreﬁghter/peace officer) [in violation of Penal Code section
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/a ﬁrearm/a
semiautomatic ﬁrearm/a machine gun/an assault weapon/a .50
BMG riﬂe) that by its nature would directly and probably result
in the application of force to a person;]
<Alternative 1B—force without weapon>
[1A. The defendant did an act that by its nature would directly and
probably result in the application of force to a person, and
1B. 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/with a ﬁrearm/with a semiautomatic ﬁrearm/with a
machine gun/with an assault weapon/with a .50 BMG riﬂe) to a
5. When the defendant acted, the person assaulted was lawfully
performing (his/her) duties as a (ﬁreﬁghter/peace officer);
6. When the defendant acted, (he/she) knew, or reasonably should
have known, that the person assaulted was a (ﬁreﬁghter/peace
officer) who was performing (his/her) duties(;/.)
<Give element 7 when instructing on self-defense or defense of another.>
7. 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
The People are not required to prove that the defendant actually
intended to use force against someone when (he/she) acted.
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].
[Voluntary intoxication is not a defense to assault.]
[Great bodily injury means signiﬁcant or substantial physical injury. It is
an injury that is greater than minor or moderate harm.]
[A deadly weapon is any object, instrument, or weapon that is inherently
deadly or one that is used in such a way that it is capable of causing
and likely to cause death or great bodily injury.]
[A ﬁrearm is any device designed to be used as a weapon, from which a
projectile is discharged or expelled through a barrel by the force of an
explosion or other form of combustion.]
[A semiautomatic ﬁrearm extracts a ﬁred cartridge and chambers a
fresh cartridge with each single pull of the trigger.]
[A machine gun is any weapon that (shoots/is designed to shoot/ [or] can
CALCRIM No. 860 ASSAULTIVE AND BATTERY CRIMES
readily be restored to shoot) automatically more than one shot by a
single function of the trigger and without manual reloading.]
[An assault weapon includes <insert names of appropriate
designated assault weapons listed in Pen. Code, § 30510 and further deﬁned
by Pen. Code § 30515>.]
[A .50 BMG riﬂe is a center ﬁre riﬂe that can ﬁre a .50 BMG cartridge
[and that is not an assault weapon or a machine gun]. A .50 BMG
cartridge is a cartridge that is designed and intended to be ﬁred from a
center ﬁre riﬂe and that has all three of the following characteristics:
1. The overall length is 5.54 inches from the base of the cartridge
to the tip of the bullet;
2. The bullet diameter for the cartridge is from .510 to, and
including, .511 inch;
3. The case base diameter for the cartridge is from .800 inch to,
and including, .804 inch.]
[The term[s] (great bodily injury[,]/ deadly weapon[,]/ ﬁrearm[,]/ machine
gun[,]/assault weapon[,]/ [and] .50 BMG riﬂe) (is/are) deﬁned in another
instruction to which you should refer.]
[A person who is employed as a police officer by <insert
name of agency that employs police offıcer> is a peace officer.]
[A person employed by <insert name of agency that employs
peace offıcer, e.g., “the Department of Fish and Wildlife”> is a peace
officer if <insert description of facts necessary to make
employee a peace offıcer, e.g., “designated by the director of the agency as
a peace offıcer”>.]
[The duties of a <insert title of offıcer> include
<insert job duties>.]
[A ﬁreﬁghter includes anyone who is an officer, employee, or member of
a (governmentally operated (ﬁre department/ﬁre protection or
ﬁreﬁghting agency) in this state/federal ﬁre department/federal ﬁre
protection or ﬁreﬁghting agency), whether or not he or she is paid for
his or her services.]
New January 2006; Revised April 2011, February 2012, February 2013
The court has a sua sponte duty to give an instruction deﬁning the elements of the
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 860
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 addition, the court has a sua sponte duty to instruct on defendant’s reliance on
self-defense as it relates to the use of excessive force. (People v. White (1980) 101
Cal.App.3d 161, 167–168 [161 Cal.Rptr. 541].) If excessive force is an issue, the
court has a sua sponte duty to instruct the jury that the defendant is not guilty of
the offense charged, or any lesser included offense in which lawful performance is
an element, if the defendant used reasonable force in response to excessive force.
(People v. Olguin (1981) 119 Cal.App.3d 39, 46–47 [173 Cal.Rptr. 663].) On
request, the court must instruct that the prosecution has the burden of proving the
lawfulness of the arrest beyond a reasonable doubt. (People v. Castain (1981) 122
Cal.App.3d 138, 145 [175 Cal.Rptr. 651].) If lawful performance is an issue, give
the appropriate portions of CALCRIM No. 2670, Lawful Performance: Peace
Offıcer. In addition, give CALCRIM No. 2672, Lawful Performance: Resisting
Unlawful Arrest With Force, if requested.
Give element 1A if it is alleged the assault was committed with a deadly weapon, a
ﬁrearm, a semiautomatic ﬁrearm, a machine gun, an assault weapon, or .50 BMG
riﬂe. Give element 1B if it is alleged that the assault was committed with force
likely to produce great bodily injury. (See Pen. Code, § 245(c) & (d).)
Give the bracketed deﬁnition of “application or 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.
The jury must determine whether the alleged victim is a peace officer. (People v.
Brown (1988) 46 Cal.3d 432, 444–445 [250 Cal.Rptr. 604, 758 P.2d 1135].) The
court may instruct the jury on the appropriate deﬁnition of “peace officer” from the
statute (e.g., “a Garden Grove Regular Police Officer and a Garden Grove Reserve
Police Officer are peace officers”). (Ibid.) However, the court may not instruct the
jury that the alleged victim was a peace officer as a matter of law (e.g., “Officer
Reed was a peace officer”). (Ibid.) If the alleged victim is a police officer, give the
bracketed sentence that begins with “A person employed as a police officer.” If the
alleged victim is another type of peace officer, give the bracketed sentence that
begins with “A person employed by.”
The court may give the bracketed sentence that begins, “The duties of a
<insert title . . . .> include,” on request. The court may insert a
description of the officer’s duties such as “the correct service of a facially valid
search warrant.” (People v. Gonzalez (1990) 51 Cal.3d 1179, 1222 [275 Cal.Rptr.
729, 800 P.2d 1159].)
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
[108 Cal.Rptr. 89, 510 P.2d 33].)
CALCRIM No. 860 ASSAULTIVE AND BATTERY CRIMES
• Elements. Pen. Code, §§ 240, 245(c) & (d)(1)–(3).
• Assault Weapon Deﬁned. Pen. Code, §§ 30510, 30515.
• Firearm Deﬁned. Pen. Code, § 16520.
• Machine Gun Deﬁned. Pen. Code, § 16880.
• Semiautomatic Pistol Deﬁned. Pen. Code, § 17140.
• .50 BMG Riﬂe Deﬁned. Pen. Code, § 30530.
• Peace Officer Deﬁned. Pen. Code, § 830 et seq.
• Fireﬁghter Deﬁned. Pen. Code, § 245.1.
• Willful Deﬁned. Pen. Code, § 7(1); People v. Lara (1996) 44 Cal.App.4th 102,
107 [51 Cal.Rptr.2d 402].
• Deadly Weapon Deﬁned. People v. Brown (2012) 210 Cal.App.4th 1, 6–8 [147
Cal.Rptr.3d 848]; People v. Aguilar (1997) 16 Cal.4th 1023, 1028–1029 [68
Cal.Rptr.2d 655, 945 P.2d 1204].
• Mental State for Assault. People v. Williams (2001) 26 Cal.4th 779, 790 [111
Cal.Rptr.2d 114, 29 P.3d 197].
• 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]].
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against the
Person, § 65.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, § 142.11; Ch. 144, Crimes Against Order,
§ 144.01[j] (Matthew Bender).
LESSER INCLUDED OFFENSES
• Assault. Pen. Code, § 240.
•Assault With a Deadly Weapon. Pen. Code, § 245.
• Assault on a Peace Officer. Pen. Code, § 241(b).
See the Related Issues section to CALCRIM No. 2670, Lawful Performance: Peace
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 860