890. Assault With Intent to Commit Sex Offense
The defendant is charged [in Count ______] with assault with intent to commit <specify sex offense[s] listed in Pen. Code, § 220>.
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;
5. When the defendant acted, (he/she) intended to commit
<specify sex offense[s] listed in Pen. Code, § 220>.
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 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 <specify sex offense[s] listed in Pen. Code, § 220> please refer to Instruction[s] which define[s] (that/those) crime[s].
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.
CALCRIM No. 915, Simple Assault.
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].
Intent to Commit Sex Offense. People v. Meichtry (1951) 37 Cal.2d 385, 388-389 [231 P.2d 847] [assault to commit rape is complete at any moment during the assault when the accused intends to use whatever force may be required].
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
Attempted Sex Offense. Pen. Code, §§ 663, 261, 264.1, 286, 288, 288a, 289; see People v. De Porceri (2003) 106 Cal.App.4th 60, 68-69 [130 Cal.Rptr.2d 280].
Simple Assault. Pen. Code, § 240; see People v. Greene (1973) 34 Cal.App.3d 622, 653 [110 Cal.Rptr. 160].
Attempted sexual battery (Pen. Code, §§ 243.4, 664) is not a necessarily included offense of assault to commit rape. (People v. Dixon (1999) 75 Cal.App.4th 935, 943 [89 Cal.Rptr.2d 602].)
There is no crime of attempted assault to commit rape. (People v. Duens (1976) 64 Cal.App.3d 310, 314 [134 Cal.Rptr. 341].)
Assault with intent to commit rape is complete at any point during the incident when the defendant entertains the intent to have sexual intercourse with his victim by force. "It makes no difference whatsoever that he later abandons that intent." (People v. Trotter (1984) 160 Cal.App.3d 1217, 1223
[207 Cal.Rptr. 165]; see People v. Meichtry (1951) 37 Cal.2d 385, 388-389 [231 P.2d 847].)
(New January 2006)