862. Assault on Custodial Officer With Deadly Weapon or Force Likely to Produce Great Bodily Injury
The defendant is charged [in Count ______] with assault with (force likely to produce great bodily injury/a deadly weapon) on a custodial officer.
To prove that the defendant is guilty of this crime, the People must prove that:
<Alternative 1A—force with weapon>
[1. The defendant willfully 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>
[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) to a person;
5. When the defendant acted, the person assaulted was lawfully performing (his/her) duties as a custodial officer;
6. When the defendant acted, (he/she) knew, or reasonably should have known, both that the person assaulted was a custodial officer and that (he/she) was performing (his/her) duties as a custodial officer(;/.)
<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 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 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.]
[The term[s] (great bodily injury/ [and] deadly weapon) (is/are) defined in another instruction to which you should refer.]
A custodial officer is someone who works for a law enforcement agency of a city or county, is responsible for maintaining custody of prisoners, and helps operate a local detention facility. [A (county jail/city jail/ <insert other detention facility>) is a local detention facility.] [A custodial officer is not a peace officer.]
<When lawful performance is an issue, give the following paragraph and Instruction 2671, Lawful Performance: Custodial Officer.>
[A custodial officer is not lawfully performing his or her duties if he or she is using unreasonable or excessive force in his or her duties. Instruction 2671 explains when force is unreasonable or excessive.]
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].) If lawful performance is an issue, give the bracketed paragraph on lawful performance and the appropriate portions of CALCRIM No. 2671, Lawful Performance: Custodial Officer.
Give element 1A if it is alleged the assault was committed with a deadly weapon. Give element 1B if it is alleged that the assault was committed with force likely to produce great bodily injury. (See Pen. Code, § 245.3.)
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.
In the bracketed definition of "local detention facility," do not insert the name of a specific detention facility. Instead, insert a description of the type of detention facility at issue in the case. (See People v. Flood (1998) 18 Cal.4th 470, 482 [76 Cal.Rptr.2d 180, 957 P.2d 869] [jury must determine if alleged victim is a peace officer]; see Penal Code section 6031.4 [defining local detention facility].)
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. Pen. Code, §§ 240, 245, 245.3.
Custodial Officer Defined. Pen. Code, § 831.
Local Detention Facility Defined. Pen. Code, § 6031.4.
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].
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, § 67.
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).
(New January 2006)