CALCRIM No. 904. Assault on School Employee (Pen. Code, §§ 240, 241.6)

Judicial Council of California Criminal Jury Instructions (2023 edition)

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904.Assault on School Employee (Pen. Code, §§ 240, 241.6)
The defendant is charged [in Count ] with assault on a school
employee [in violation of Penal Code section 241.6].
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
4. When the defendant acted, (he/she) had the present ability to
apply force to a person;
5. When the defendant acted, (he/she) knew, or reasonably should
have known, that the person assaulted was a school employee
[and that (he/she) was performing (his/her) duties as a school
6. (When the defendant acted, the person assaulted was performing
(his/her) duties[,]/ [or] (The/the) defendant acted in retaliation for
something the school employee had done in the course of (his/her)
<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.]
Aschool employee is any person employed as a permanent or
probationary certificated or classified employee of a school district on a
part-time or full-time basis, including a substitute teacher, student
teacher, or school board member.
[It is not a defense that an assault took place off campus or outside of
school hours.]
New January 2006; Revised March 2017
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
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.)
If the sole motivation alleged for the assault is retaliation, do not give CALCRIM
No. 370, Motive, do not give the bracketed clause in element 5, and give only the
second option in element 6. (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].)
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, 241.6.
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 (4th ed. 2012) Crimes Against the
Person, §§ 21, 23, 80.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.11; Ch. 144, Crimes Against Order, § 144.02 (Matthew

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