CALCRIM No. 861. Assault on Firefighter or Peace Officer With Stun Gun or Less Lethal Weapon (Pen. Code, §§ 240, 244.5(c))
Judicial Council of California Criminal Jury Instructions (2023 edition)
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861.Assault on Firefighter or Peace Officer With Stun Gun or
Less Lethal Weapon (Pen. Code, §§ 240, 244.5(c))
The defendant is charged [in Count ] with assault with a (stun
gun/ [or] less lethal weapon) on a (firefighter/peace officer) [in violation
of Penal Code section 244.5(c)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant did an act with a (stun gun/[or] less lethal weapon)
that by its nature would directly and probably result in the
application of force to a person;
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 with a (stun gun/[or] less lethal weapon) to a person;
5. When the defendant acted, the person assaulted was lawfully
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).]
[A stun gun is anything, except a less lethal weapon, that is used or
intended to be used as either an offensive or defensive weapon and is
capable of temporarily immobilizing someone by inflicting an electrical
charge.]
[A is a less lethal weapon.]
[ is less lethal ammunition.]
[A less lethal weapon is any device that is either designed to or that has
been converted to expel or propel less lethal ammunition by any action,
mechanism, or process for the purpose of incapacitating, immobilizing,
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or stunning a human being through the infliction of any less than lethal
impairment of physical condition, function, or senses, including physical
pain or discomfort. It is not necessary that the weapon leave any lasting
or permanent incapacitation, discomfort, pain, or other injury or
disability in order to qualify as a less lethal weapon.]
[Less lethal ammunition is any ammunition that is designed to be used in
any less lethal weapon or any other kind of weapon, including, but not
limited to, firearms, pistols, revolvers, shotguns, rifles, and spring,
compressed air, and compressed gas weapons. When used in a less lethal
weapon or other weapon, less lethal ammunition is designed to
immobilize or incapacitate or stun a human being by inflicting less than
lethal impairment of physical condition, function, or senses, including
physical pain or discomfort.]
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 the 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.]
[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>.]
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[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 August 2009, April 2011, February 2012
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.
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].)
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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, 244.5.
• Firefighter Defined. Pen. Code, § 245.1.
• Peace Officer Defined. Pen. Code, § 830 et seq.
• Willful Defined. Pen. Code, § 7(1); People v. Lara (1996) 44 Cal.App.4th 102,
107 [51 Cal.Rptr.2d 402].
• 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]].
• Less Lethal Weapon Defined. Pen. Code, § 16780.
• Less Lethal Ammunition Defined. Pen. Code, § 16770.
LESSER INCLUDED OFFENSES
• Assault. Pen. Code, § 240.
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[3]; Ch. 144, Crimes Against Order, § 144.01[1][j]
(Matthew Bender).
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© Judicial Council of California.
