CALCRIM No. 862. Assault on Custodial Officer With Deadly Weapon or Force Likely to Produce Great Bodily Injury (Pen. Code, §§ 240, 245, 245.3)
Judicial Council of California Criminal Jury Instructions (2020 edition)Download PDF
862.Assault on Custodial Officer With Deadly Weapon or Force
Likely to Produce Great Bodily Injury (Pen. Code, §§ 240, 245,
The defendant is charged [in Count ] with assault with (force
likely to produce great bodily injury/a deadly weapon) on a custodial
officer [in violation of Penal Code section 245.3].
To prove that the defendant is guilty of this crime, the People must
<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
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
<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.]
[An object is inherently deadly if it is deadly or dangerous in the
ordinary use for which it was designed.]
[In deciding whether an object is a deadly weapon, consider all the
[The term[s] (great bodily injury/ [and] deadly weapon) (is/are) defined in
another instruction to which you should refer.]
Acustodial 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.]
New January 2006; Revised April 2011, February 2013, September 2019
The court has a sua sponte duty to give an instruction defining the elements of the
CALCRIM No. 862 ASSAULTIVE AND BATTERY CRIMES
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 appropriate portions of CALCRIM No. 2671,
Lawful Performance: Custodial Offıcer.
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.
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
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.
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.
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 862
• 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].
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 72-74.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.11; Ch. 144, Crimes Against Order, § 144.01[j]
CALCRIM No. 862 ASSAULTIVE AND BATTERY CRIMES