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.]
[It is not a defense that an assault was committed after the trial was
New January 2006
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 6 and any
appropriate defense instructions. (See CALCRIM Nos. 3470–3477.)
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 [108 Cal.Rptr. 89, 510 P.2d 33].)
• Elements. Pen. Code, §§ 240, 241.7.
•Willful Deﬁned. Pen. Code, § 7(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, § 71.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, § 142.11 (Matthew Bender).
Unlike other statutes penalizing assault on a particular person, Penal Code section
241.7 does not state that the defendant must have known that the person assaulted
was a juror. Thus, the committee has not included knowledge among the elements.
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 905