876. Assault With Stun Gun or Taser®
The defendant is charged [in Count ______] with assault with a (stun gun/[or] Taser®).
To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant did an act with a (stun gun/[or] Taser®) that by its nature would directly and probably result in the application of force to a person;
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 with a (stun gun/[or] Taser®) 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).]
[A stun gun is anything, except a Taser®, that is used or intended to be used as either an offensive or defensive weapon and is capable of temporarily immobilizing someone by inflicting an electrical charge.]
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 the 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.]
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 5 and any appropriate defense instructions. (See CALCRIM Nos. 3470-3477.)
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, 244.5.
Willful Defined. Pen. Code, § 7, subd. 1; People v. Lara (1996) 44 Cal.App.4th 102, 107 [51 Cal.Rptr.2d 402].
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]].
Taser® Described. See People v. Heffner (1977) 70 Cal.App.3d 643, 647 [139 Cal.Rptr. 45].
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against the Person, § 52.
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.
(New January 2006)