CALCRIM No. 860. Assault on Firefighter or Peace Officer With Deadly Weapon or Force Likely to Produce Great Bodily Injury (Pen. Code, §§ 240, 245(c) & (d))

Judicial Council of California Criminal Jury Instructions (2020 edition)

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D. ASSAULT
(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
245].
To prove that the defendant is guilty of this crime, the People must
prove [either] that:
<Alternative 1A - force with weapon>
[1A. 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;]
[OR]
<Alternative 1B - force without weapon>
[1Bi. The defendant did an act that by its nature would directly and
probably result in the application of force to a person, and
1Bii. 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
person;
5. When the defendant acted, the person assaulted was lawfully
609
performing (his/her) duties as a (firefighter/peace officer);
[AND]
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.>
[AND
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. 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.]
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.]
[An object is inherently deadly if it is deadly or dangerous in the
ordinary use for which it is designed.]
[In deciding whether an object is a deadly weapon, consider all the
surrounding circumstances.]
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[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
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;
AND
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.]
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 860
611
New January 2006; Revised April 2011, February 2012, February 2013, September
2019, April 2020
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an 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 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.
Give the bracketed phrase “that is inherently deadly or one” and give the bracketed
definition of inherently deadly only if the object is a deadly weapon as a matter of
law. (People v. Stutelberg (2018) 29 Cal.App.5th 314, 317-318 [240 Cal.Rptr.3d
156].)
Give the bracketed portion that begins with “In deciding whether” if the object is
not a weapon as a matter of law and is capable of innocent uses. (People v. Aguilar
(1997) 16 Cal.4th 1023, 1028-1029 [68 Cal.Rptr.2d 655, 945 P.2d 1204]; People v.
Godwin (1996) 50 Cal.App.4th 1562, 1573-1574 [58 Cal.Rptr.2d 545].)
If determining whether the item is an inherently deadly weapon requires resolution
of a factual issue, give both bracketed instructions.
The jury must determine whether the alleged victim is a peace officer. (People v.
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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,
519, 521-522 [108 Cal.Rptr. 89, 510 P.2d 33].)
AUTHORITY
• 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]].
• Inherently Deadly Defined. People v. Perez (2018) 4 Cal.5th 1055, 1065 [232
Cal.Rptr.3d 51, 416 P.3d 42]; People v. Aguilar (1997) 16 Cal.4th 1023,
1028-1029 [68 Cal.Rptr.2d 655, 945 P.2d 1204].
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LESSER INCLUDED OFFENSES
• Assault. Pen. Code, § 240.
• Assault With a Deadly Weapon. Pen. Code, § 245.
• Assault on a Peace Officer. Pen. Code, § 241(b).
RELATED ISSUES
See the Related Issues section to CALCRIM No. 2670, Lawful Performance: Peace
Offıcer.
Dual Convictions Prohibited
Penal Code § 245(c) describes a single offense. (In re C.D. (2017) 18 Cal.App.5th
1021, 1029 [227 Cal.Rptr.3d 360] [“Aggravated assault against a peace officer under
section 245, subdivision (c), remains a single offense, and multiple violations of the
statute cannot be found when they are based on the same act or course of conduct.”]
See CALCRIM No. 3516, Multiple Counts: Alternative Charges For One
Event - Dual Conviction Prohibited.
If both theories of assault are included in the case, the jury must unanimously agree
which theory or theories are the basis for the verdict.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, § 69.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.11; Ch. 144, Crimes Against Order, § 144.01[1][j]
(Matthew Bender).
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