Criminal Law

902. Assault on Military Personnel

The defendant is charged [in Count ______] with assault on a member of the United States Armed Forces.

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. The person assaulted was a member of the United States Armed Forces at the time of the assault;


6. The defendant knew the other person was a member of the United States Armed Forces and assaulted the other person because of that person's service(;/.)

<Give element 7 when instructing on self-defense or defense of another.>


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 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].

A <insert description, e.g., "private in the United States Army"> is a member of the United States Armed Forces.

A person commits an assault because of someone's service in the Armed Forces if:

1. That person is biased against the assaulted person based on the assaulted person's military service;


2. That bias caused the person to commit the alleged assault.

If the defendant had more than one reason to commit the alleged assault, the bias described here must have been a substantial motivating factor. A substantial factor is more than a trivial or remote factor. However, it does not need to be the only factor that motivated the assault.

[Voluntary intoxication is not a defense to assault.]

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 that defense. Give bracketed element 7 and any appropriate defense instructions. (See CALCRIM Nos. 3470-3477.)

The jury must determine whether the alleged victim is a member of the United States Armed Forces. (See 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 member of the armed forces. However, the court may not instruct the jury that the alleged victim was a member of the armed forces as a matter of law. (Ibid.)

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, 241.8.

Willfully 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]].

Secondary Sources

1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against the Person, § 65.

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.

(New January 2006)