California Criminal Jury Instructions (CALCRIM) (2017)

876. Assault With Stun Gun or Taser®

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876.Assault With Stun Gun or Less Lethal Weapon (Pen. Code,
§§ 240, 244.5(b))
The defendant is charged [in Count ] with assault with a (stun
gun/[or] less lethal weapon) [in violation of Penal Code section 244.5(b)].
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] less lethal
weapon) 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;
[AND]
4. When the defendant acted, (he/she) had the present ability to
apply force with a (stun gun/[or] less lethal weapon) 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).]
[A stun gun is anything, except a less lethal weapon, 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.]
[A less lethal weapon is any device that is either designed to or that has
been converted to expel or propel less lethal ammunition by any action,
mechanism, or process for the purpose of incapacitating, immobilizing,
or stunning a human being through the infliction of any less than lethal
impairment of physical condition, function, or senses, including physical
pain or discomfort. It is not necessary that the weapon leave any lasting
or permanent incapacitation, discomfort, pain, or other injury or
disability in order to qualify as a less lethal weapon.]
[Less lethal ammunition is any ammunition that is designed to be used
in any less lethal weapon or any other kind of weapon, including, but
not limited to, firearms, pistols, revolvers, shotguns, rifles, and spring,
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compressed air, and compressed gas weapons. When used in a less lethal
weapon or other weapon, less lethal ammunition is designed to
immobilize or incapacitate or stun a human being by inflicting less than
lethal impairment of physical condition, function, or senses, including
physical pain or discomfort.]
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.]
New January 2006; Revised August 2009, February 2012
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 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 [108 Cal.Rptr. 89, 510 P.2d 33].)
AUTHORITY
• Elements. Pen. Code, §§ 240, 244.5.
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• 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]].
• Less Lethal Weapon Defined. Pen. Code, § 16780.
• Less Lethal Ammunition Defined. Pen. Code, § 16770.
Secondary Sources
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[3] (Matthew Bender).
LESSER INCLUDED OFFENSES
• Assault. Pen. Code, § 240.
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