California Criminal Jury Instructions (CALCRIM) (2017)

863. Assault on Transportation Personnel or Passenger With Deadly Weapon or Force Likely to Produce Great Bodily Injury

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863.Assault on Transportation Personnel or Passenger With
Deadly Weapon or Force Likely to Produce Great Bodily Injury
(Pen. Code, §§ 240, 245, 245.2)
The defendant is charged [in Count ] with assault with (force
likely to produce great bodily injury/a deadly weapon) on (a/an)
(operator/driver/station agent/ticket agent/passenger) of (a/an)
<insert name of vehicle or transportation entity specified in
Pen. Code, § 245.2> [in violation of Penal Code section 245.2].
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;
<Alternative 5A—transportation personnel>
[5. When the defendant acted, the person assaulted was performing
(his/her) duties as (a/an) (operator/driver/station agent/ticket
agent) of (a/an) <insert name of vehicle or
transportation entity specified in Pen. Code, § 245.2>;]
<Alternative 5B—passenger>
[5. The person assaulted was a passenger of (a/an)
<insert name of vehicle or transportation entity specified in Pen.
Code, § 245.2>;]
[AND]
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6. When the defendant acted, (he/she) knew, or reasonably should
have known, [both] that the person assaulted was (a/an)
(operator/driver/station agent/ticket agent/passenger) of (a/an)
<insert name of vehicle or transportation entity
specified in Pen. Code, § 245.2> [and that (he/she) 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.]
[The term[s] (great bodily injury/[and] deadly weapon)(is/are) defined in
another instruction to which you should refer.]
New January 2006; Revised February 2013
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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.)
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, § 245.2.)
If the victim was an operator, driver, station agent, or ticket agent of an identified
vehicle or transportation entity, give element 5A and the bracketed language in
element 6. If the victim was a passenger, give element 5B and omit the bracketed
language in element 6.
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.
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 [108 Cal.Rptr. 89, 510 P.2d 33].)
AUTHORITY
• Elements. Pen. Code, §§ 240, 245, 245.2.
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]].
Secondary Sources
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against the
Person, § 72.
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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LESSER INCLUDED OFFENSES
• Assault. Pen. Code, § 240.
864–874. Reserved for Future Use
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