CALCRIM No. 900. Assault on Firefighter, Peace Officer or Other Specified Victim (Pen. Code, §§ 240, 241)

Judicial Council of California Criminal Jury Instructions (2020 edition)

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(iii) Simple Assault on Specified People or in Specified
Location
900.Assault on Firefighter, Peace Officer or Other Specified
Victim (Pen. Code, §§ 240, 241)
The defendant is charged [in Count ] with assault on a
(firefighter/peace officer/ <insert description of other person
from Pen. Code, § 241(b/c)>) [in violation of Penal Code section 241(b/c)].
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 would
directly, naturally, 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, the person assaulted was lawfully
performing (his/her) duties as a (firefighter/peace officer/
<insert description of other person from Pen. Code,
§ 241(b) or (c)>);
[AND]
6. When the defendant acted, (he/she) knew, or reasonably should
have known, that the person assaulted was a (firefighter/peace
officer/ <insert description of other person from Pen.
Code, § 241(b) or (c)>) (who was performing (his/her) duties/
providing emergency medical care)(;/.)
<Give element 7 when instructing on self-defense or defense of another.>
[AND
7. 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
someone else, or gain any advantage.
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.]
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.]
[A person employed as a police officer by <insert name of
agency that employs police offıcer> is a peace officer.]
[A person employed by <insert name of agency that employs
peace offıcer, e.g., “the Department of Fish and Wildlife”> is a peace officer
if <insert description of facts necessary to make employee a
peace offıcer, e.g., “designated by the director of the agency as a peace
offıcer”>.]
[The duties of a <insert title of peace offıcer specified in Pen.
Code, § 830 et seq.> include <insert job duties>.]
[A firefighter includes anyone who is an officer, employee, or member of
a (governmentally operated (fire department/fire protection or
firefighting agency) in this state/federal fire department/federal fire
protection or firefighting agency), whether or not he or she is paid for his
or her services.]
New January 2006; Revised April 2008, April 2011
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 7 and any
appropriate defense instructions. (See CALCRIM Nos. 3470-3477.)
CALCRIM No. 900 ASSAULTIVE AND BATTERY CRIMES
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Select the option in element six for “providing emergency medical care” if the
victim is a physician or nurse engaged in rendering emergency medical care.
In order to be “engaged in the performance of his or her duties,” a peace officer
must be acting lawfully. (People v. Gonzalez (1990) 51 Cal.3d 1179, 1217 [275
Cal.Rptr. 729, 800 P.2d 1159].) “[D]isputed facts bearing on the issue of legal cause
must be submitted to the jury considering an engaged-in-duty element.” (Ibid.) The
court has a sua sponte duty to instruct on defendant’s reliance on self-defense as it
relates to the use of excessive force. (People v. White (1980) 101 Cal.App.3d 161,
167-168 [161 Cal.Rptr. 541].) If excessive force is an issue, the court has a sua
sponte duty to instruct the jury that the defendant is not guilty of the offense
charged, or any lesser included offense in which lawful performance is an element,
if the defendant used reasonable force in response to excessive force. (People v.
Olguin (1981) 119 Cal.App.3d 39, 46-47 [173 Cal.Rptr. 663].) On request, the court
must also instruct that the People have the burden of proving the lawfulness of an
arrest beyond a reasonable doubt. (People v. Castain (1981) 122 Cal.App.3d 138,
145 [175 Cal.Rptr. 651].) Give the appropriate portions of CALCRIM No. 2670,
Lawful Performance: Peace Offıcer.
The jury must determine whether the alleged victim is a peace officer. (People v.
Brown (1988) 46 Cal.3d 432, 444-445 [250 Cal.Rptr. 604, 758 P.2d 1135].) The
court may instruct the jury on the appropriate definition of “peace officer” from the
statute (e.g., “a Garden Grove Regular Police Officer and a Garden Grove Reserve
Police Officer are peace officers”). (Ibid.) However, the court may not instruct the
jury that the alleged victim was a peace officer as a matter of law (e.g., “Officer
Reed was a peace officer”). (Ibid.) If the alleged victim is a police officer, give the
bracketed sentence that begins with “A person employed as a police officer.” If the
alleged victim is another type of peace officer, give the bracketed sentence that
begins with “A person employed by.”
The court may give the bracketed sentence that begins with “The duties of a
<insert title of peace offıcer specified in Pen. Code, § 830 et seq.>
include” on request. The court may insert a description of the officer’s duties such
as “the correct service of a facially valid search warrant.” (People v. Gonzalez,
supra, 51 Cal.3d at p. 1222.)
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].)
AUTHORITY
• Elements. Pen. Code, §§ 240, 241.
• Firefighter Defined. Pen. Code, § 245.1.
• Peace Officer Defined. Pen. Code, § 830 et seq.
• Willfully Defined. Pen. Code, § 7, subd. 1; People v. Lara (1996) 44
Cal.App.4th 102, 107 [51 Cal.Rptr.2d 402].
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• 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]].
LESSER INCLUDED OFFENSES
• Simple Assault. Pen. Code, § 240.
RELATED ISSUES
Resisting Arrest
“[A] person may not use force to resist any arrest, lawful or unlawful, except that
he may use reasonable force to defend life and limb against excessive force . . . .”
(People v. Curtis (1969) 70 Cal.2d 347, 357 [74 Cal.Rptr. 713, 450 P.2d 33].) “[I]f
the arrest is ultimately determined factually to be unlawful [but the officer did not
use excessive force], the defendant can be validly convicted only of simple assault
or battery,” not assault or battery of a peace officer. (Id. at pp. 355-356.) See
CALCRIM No. 2672, Lawful Performance: Resisting Unlawful Arrest With Force.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, § 69.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.11 (Matthew Bender).
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