Justia Criminal Law Center California Criminal Jury Instructions (CALCRIM) (2023) Assaultive and Battery Crimes CALCRIM No. 862. Assault on Custodial Officer With Deadly Weapon or Force Likely to Produce Great Bodily Injury (Pen. Code, §§ 240, 245, 245.3)

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 (2023 edition)

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862.Assault on Custodial Officer With Deadly Weapon or Force

Likely to Produce Great Bodily Injury (Pen. Code, §§ 240, 245,

245.3)

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

prove that:

[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;]

[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;

[AND]

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(;/.)

[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

595

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 was designed.]

[In deciding whether an object is a deadly weapon, consider all the

surrounding circumstances.]

[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, September

2020, March 2022

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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].) 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

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.

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].)

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The second sentence of the great bodily injury definition could result in error if the

prosecution improperly argues great bodily injury may be shown by greater than

minor injury alone. (Compare People v. Medellin (2020) 45 Cal.App.5th 519,

533-535 [258 Cal.Rptr.3d 867] [the definition was reasonably susceptible to

prosecutor’s erroneous argument that the injury need only be greater than minor]

with People v. Quinonez (2020) 46 Cal.App.5th 457, 466 [260 Cal.Rptr.3d 86]

[upholding instructions containing great bodily injury definition as written].)

AUTHORITY

• 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(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].

• Examples of Noninherently Deadly Weapon. People v. Aledamat (2019) 8

Cal.5th 1, 6 [251 Cal.Rptr.3d 371, 447 P.3d 277] [box cutter]; People v. Perez

(2018) 4 Cal.5th 1055, 1065 [232 Cal.Rptr.3d 51, 416 P.3d 42] [vehicle]; People

v. McCoy (1944) 25 Cal.2d 177, 188 [153 P.2d 315] [knife].

SECONDARY SOURCES

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[1][j]

(Matthew Bender).

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Page last reviewed May 2023