903. Assault on School District Peace Officer
The defendant is charged [in Count ______] with assault on a school district peace officer.
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, the person assaulted was lawfully performing (his/her) duties as a school district peace officer;
6. When the defendant acted, (he/she) knew, or reasonably should have known, both that the person assaulted was a school district peace officer and that (he/she) was performing (his/her) duties as a school district peace officer(;/.)
<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 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 school district peace officer is a peace officer who is a member of a police department of a school district under Education Code section 38000.
<When lawful performance is an issue, give the following paragraph and Instruction 2670, Lawful Performance: Peace Officer.>
[A school district peace officer is not lawfully performing his or her duties if he or she is (unlawfully arresting or detaining someone/ [or] using unreasonable or excessive force in his or her duties). Instruction 2670 explains (when an arrest or detention is unlawful/ [and] when force is unreasonable or excessive).]
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.)
In addition, 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 instruct that the prosecution has the burden of proving the lawfulness of the arrest beyond a reasonable doubt. (People v. Castain (1981) 122 Cal.App.3d 138, 145 [175 Cal.Rptr. 651].) If lawful performance is an issue, give the bracketed paragraph on lawful performance and the appropriate portions of CALCRIM No. 2670, Lawful Performance: Peace Officer. In addition, give CALCRIM No. 2672, Lawful Performance: Resisting Unlawful Arrest With Force, if requested.
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, 241.4; Educ. Code, § 38000.
Willful 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]].
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against the Person, § 67.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, § 142.11; Ch. 144, Crimes Against Order, § 144.02 (Matthew Bender).
Penal Code section 241.4 refers to former Education Code section 39670, which was repealed and substantially reenacted as Education Code section 38000, effective January 1, 1998. (For previous version, see Stats. 1996, ch. 277, §§ 5, 6.) A school district peace officer is anyone so designated by the superintendent of the school district, but is not vested with general police powers. (See Educ. Code, § 38000(a).) The scope of authority for school district peace officers is set forth in Penal Code section 830.32. (See Educ. Code, § 38001.)
(New January 2006)