CALCRIM No. 902. Assault on Military Personnel (Pen. Code, §§ 240, 241.8)
Judicial Council of California Criminal Jury Instructions (2023 edition)
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902.Assault on Military Personnel (Pen. Code, §§ 240, 241.8)
The defendant is charged [in Count ] with assault on a member of
the United States Armed Forces [in violation of Penal Code section
241.8].
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;
[AND]
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.>
[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
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.]
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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;
AND
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.]
New January 2006; Revised March 2017
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].)
Do not give CALCRIM No. 370, Motive, with this instruction because motive is an
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element of this crime. (See People v. Valenti (2016) 243 Cal.App.4th 1140, 1165
[197 Cal.Rptr.3d 317]; People v. Maurer (1995) 32 Cal.App.4th 1121, 1126-1127
[38 Cal.Rptr.2d 335].)
AUTHORITY
• 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]].
LESSER INCLUDED OFFENSES
• Simple Assault. Pen. Code, § 240.
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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© Judicial Council of California.
