California Criminal Jury Instructions (CALCRIM) (2017)

875. Assault With Deadly Weapon or Force Likely to Produce Great Bodily Injury

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(B) General
875.Assault With Deadly Weapon or Force Likely to Produce
Great Bodily Injury (Pen. Code, §§ 240, 245(a)(1)–(4), (b))
The defendant is charged [in Count ] with assault with (force
likely to produce great bodily injury/a deadly weapon other than a
firearm/a firearm/a semiautomatic firearm/a machine gun/an assault
weapon/a .50 BMG rifle) [in violation of Penal Code section 245].
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 other than a
firearm/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;
[AND]
4. When the defendant acted, (he/she) had the present ability to
apply force (likely to produce great bodily injury/with a deadly
weapon other than a firearm/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.>
[AND
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
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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 other than a firearm 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.]
[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 semiautomatic pistol extracts a fired cartridge and chambers a fresh
cartridge with each single pull of the trigger.]
[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, § 30510 or as defined by
Pen. Code, § 30515>.]
[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;
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2. The bullet diameter for the cartridge is from .510 to, and
including, .511 inch;
AND
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 other than a
firearm[,]/ firearm[,]/ machine gun[,]/assault weapon[,]/ [and] .50 BMG
rifle) (is/are) defined in another instruction to which you should refer.]
New January 2006; Revised June 2007, August 2009, October 2010, February
2012, February 2013, August 2013
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 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
other than a firearm, firearm, semiautomatic firearm, machine gun, an assault
weapon, or .50 BMG rifle. Give element 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 [108 Cal.Rptr. 89, 510 P.2d 33].)
If the charging document names more than one victim, modification of this
instruction may be necessary to clarify that each victim must have been subject to
the application of force. (People v. Velasquez (2012) 211 Cal.App.4th 1170,
1176–1177 [150 Cal.Rptr.3d 612].)
AUTHORITY
• Elements. Pen. Code, §§ 240, 245(a)(1)–(3) & (b).
To Have Present Ability to Inflict Injury, Gun Must Be Loaded Unless Used as
Club or Bludgeon. People v. Rodriguez (1999) 20 Cal.4th 1, 11, fn. 3 [82
Cal.Rptr.2d 413, 971 P.2d 618].
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• This Instruction Affirmed. People v. Golde (2008) 163 Cal.App.4th 101,
122–123 [77 Cal.Rptr.3d 120].
• Assault Weapon Defined. Pen. Code, §§ 30510, 30515.
• Semiautomatic Pistol Defined. Pen. Code, § 17140.
• Firearm Defined. Pen. Code, § 16520.
• Machine Gun Defined. Pen. Code, § 16880.
• .50 BMG Rifle Defined. Pen. Code, § 30530.
• 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. 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 (4th ed. 2012) Crimes Against the
Person, § 41.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, § 142.11[3] (Matthew Bender).
LESSER INCLUDED OFFENSES
• Assault. Pen. Code, § 240.
Assault with a firearm is a lesser included offense of assault with a semiautomatic
firearm. (People v. Martinez (2012) 208 Cal.App.4th 197, 199 [145 Cal.Rptr.3d
141].)
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].)
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