875. Assault 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/a firearm/a semiautomatic firearm/a machine gun/an assault weapon/a .50 BMG rifle).
To prove that the defendant is guilty of this crime, the People must prove that:
<Alternative 1A—force with weapon>
[1. The defendant did an act with (a deadly weapon/a firearm/a semiautomatic firearm/a machine gun/an assault weapon/a .50 BMG rifle) 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/with a firearm/with a semiautomatic firearm/with a machine gun/with an assault weapon/with a .50 BMG rifle) to a person(;/.)
<Give element 5 when instructing on self-defense or defense of another>
5. 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.]
[A firearm is any device designed to be used as a weapon, from which a projectile is discharged or expelled through a barrel by the force of an explosion or other form of combustion.]
[A machine gun is any weapon that (shoots/is designed to shoot/ [or] can readily be restored to shoot) automatically more than one shot by a single function of the trigger and without manual reloading.]
[An assault weapon includes <insert names of appropriate designated assault weapons listed in Pen. Code, §§ 12276 and 12276.1>.]
[A .50 BMG rifle is a center fire rifle that can fire a .50 BMG cartridge [and that is not an assault weapon or a machine gun]. A .50 BMG cartridge is a cartridge that is designed and intended to be fired from a center fire rifle and that has all three of the following characteristics:
1. The overall length is 5.54 inches from the base of the cartridge to the tip of the bullet;
2. The bullet diameter for the cartridge is from. 510 to, and including, .511 inch;
3. The case base diameter for the cartridge is from .800 inch to, and including, .804 inch.]
[The term[s] (great bodily injury[,]/ deadly weapon[,]/ firearm[,]/ machine gun[,]/assault weapon[,]/ [and] .50 BMG rifle) (is/are) defined in another instruction to which you should refer.]
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 4 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, firearm, semiautomatic firearm, machine gun, an assault weapon, or .50 BMG rifle. Give 1B if it is alleged that the assault was committed with force likely to produce great bodily injury. (See Pen. Code, § 245(a).)
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, 521-522 [108 Cal.Rptr. 89, 510 P.2d 33].)
Elements. Pen. Code, §§ 240, 245(a)(1)-(3) & (b).
Assault Weapon Defined. Pen. Code, §§ 12276, 12276.1.
Firearm Defined. Pen. Code, § 12001(b).
Machine Gun Defined. Pen. Code, § 12200.
.50 BMG Rifle Defined. Pen. Code, § 12278.
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, §§ 40-47.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, § 142.11 (Matthew Bender).
Lesser Included Offenses
Assault. Pen. Code, § 240.
A misdemeanor brandishing of a weapon or firearm under Penal Code section 417 is not a lesser and necessarily included offense of assault with a deadly weapon. (People v. Escarcega (1974) 43 Cal.App.3d 391, 398 [117 Cal.Rptr. 595]; People v. Steele (2000) 83 Cal.App.4th 212, 218, 221 [99 Cal.Rptr.2d 458].)
Semiautomatic Firearm Need Not be Operable
Assault with a semiautomatic weapon does not require proof that the gun was operable as a semiautomatic at the time of the assault. A person may commit an assault under Penal Code section 245(b) by using the gun as a club or bludgeon, regardless of whether he or she could also have fired it in a semiautomatic manner at that moment. (People v. Miceli (2002) 104 Cal.App.4th 256 [127 Cal.Rptr.2d 888].)
(New January 2006)