California Criminal Jury Instructions (CALCRIM) (2017)

890. Assault With Intent to Commit Sex Offense

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(ii) With Intent to Commit Other Offense
890.Assault With Intent to Commit Specified Crimes [While
Committing First Degree Burglary] (Pen. Code, § 220(a), (b))
The defendant is charged [in Count ] with assault with intent to
commit <insert crime specified in Penal Code section
220(a)> [while committing first degree burglary] [in violation of Penal
Code section 220((a)/ [and] (b))].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant did an act 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 to a person;
[AND]
5. When the defendant acted, (he/she) intended to commit
<insert crime specified in Pen. Code, § 220(a)>;
[AND
6. When the defendant acted, (he/she) was committing a first degree
burglary.]
<If the court concludes that the first degree burglary requirement in Pen.
Code, § 220(b) is a penalty allegation and not an element of the offense,
give the bracketed language below in place of element 6.>
6. [If you find the defendant guilty of the charged crime, you must
then decide whether the People have proved the additional
allegation that the crime was committed in the commission of a
first degree burglary.]
[First degree burglary is defined in another instruction to which you
should refer.]
Someone commits an act willfully when he or she does it willingly or on
purpose.
The terms application of force and apply force mean to touch in a
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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.]
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].
To decide whether the defendant intended to commit
<insert crime specified in Pen. Code, § 220(a)> please refer to
Instruction[s] which define[s] (that/those) crime[s].
New January 2006; Revised April 2010, October 2010, August 2012
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the crime.
The court has a sua sponte duty to give a Mayberry consent instruction if the
defense is supported by substantial evidence and is consistent with the defense
raised at trial. (People v. May (1989) 213 Cal.App.3d 118, 124–125 [261 Cal.Rptr.
502]; see People v. Mayberry (1975) 15 Cal.3d 143 [125 Cal.Rptr. 745, 542 P.2d
1337]; see also CALCRIM No. 1000, Rape or Spousal Rape by Force, Fear, or
Threats [alternative paragraph on reasonable and actual belief in consent].)
The court has a sua sponte duty to instruct on the sex offense or offense alleged.
(People v. May (1989) 213 Cal.App.3d 118, 129 [261 Cal.Rptr. 502].) In the
blanks, specify the sex offense or offenses that the defendant is charged with
intending to commit. Included sex offenses are: rape (Pen. Code, § 261); oral
copulation (Pen. Code, § 288a [including in-concert offense]); sodomy (Pen. Code,
§ 286 [including in-concert offense]); sexual penetration (Pen. Code, § 289); rape,
spousal rape, or sexual penetration in concert (Pen. Code, § 264.1); and lewd or
lascivious acts (Pen. Code, § 288). (See Pen. Code, § 220.) Give the appropriate
instructions on the offense or offenses alleged.
The court should also give CALCRIM Nos. 1700 and 1701 on burglary, if
defendant is charged with committing the offense during a first degree burglary, as
well as the appropriate CALCRIM instruction on the target crime charged pursuant
to Penal Code section 220.
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If the specified crime is mayhem, give CALCRIM No. 891, Assault With Intent to
Commit Mayhem.
Element 6 is in brackets because there is no guidance from courts of review
regarding whether the first degree burglary requirement in Penal Code section
220(b) is an element or an enhancement.
Related Instructions
CALCRIM No. 915, Simple Assault.
AUTHORITY
• Elements. Pen. Code, § 220.
Elements for Assault. Pen. Code, § 240; People v. Williams (2001) 26 Cal.4th
779, 790 [111 Cal.Rptr.2d 114, 29 P.3d 197].
• Court Must Instruct on Elements of Intended Crime. People v. May (1989)
213 Cal.App.3d 118, 129 [261 Cal.Rptr. 502] [in context of assault to commit
rape].
Secondary Sources
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against the
Person, §§ 28–34.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, § 142.11 (Matthew Bender).
LESSER INCLUDED OFFENSES
• Simple Assault. Pen. Code, § 240; see People v. Greene (1973) 34 Cal.App.3d
622, 653 [110 Cal.Rptr. 160] [in context of charged assault with intent to
commit rape].
Both assault with intent to commit rape and first degree burglary are lesser
included offenses of assault with intent to commit rape during first degree burglary
(Pen. Code, § 220(b); (People v. Dyser (2012) 202 Cal.App.4th 1015, 1021 [135
Cal.Rptr.3d 891].)
There is no crime of attempted assault to commit an offense. (See People v. Duens
(1976) 64 Cal.App.3d 310, 314 [134 Cal.Rptr. 341] [in context of assault to
commit rape].)
RELATED ISSUES
Abandonment
An assault with intent to commit another crime is complete at any point during the
incident when the defendant entertains the intent to commit the crime. “It makes no
difference whatsoever that he later abandons that intent.” (See People v. Trotter
(1984) 160 Cal.App.3d 1217, 1223 [207 Cal.Rptr. 165]; People v. Meichtry (1951)
37 Cal.2d 385, 388–389 [231 P.2d 847] [both in context of assault to commit
rape].)
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Secondary Sources
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91,
Sentencing, § 91.60 (Matthew Bender).
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