Return to CALJIC Part 9-12 – Contents
F 9.00 n1 Assault: Mens Rea (PC 240).
(See FORECITE F 9.00i.)
F 9.00 n2 Assault: Intoxication Not A Defense (PC 240).
The Colantuono court reaffirmed that the mental state for assault may not be negated by intoxication (People v. Colantuono (94) 7 C4th 206, 213, fn 3 [26 CR2d 908]; see also People v. Whitfield (94) 7 C4th 437, 451 [27 CR2d 858]; PC 22.) However, if awareness or knowledge is an element of assault, there may be a federal constitutional argument that, notwithstanding PC 22, the defendant should be allowed to negate such a mental element by any available evidence including intoxication. (See FORECITE F 1.20b.)
Does Due Process Require Consideration Of Intoxication In Determining All Mental Elements Of The Charge? [See FORECITE F 4.21 n11]
F 9.00 n3 Assault: Nature of the Injury (PC 240).
People v. Colantuono (94) 7 C4th 206, 214, fn 4 [26 CR2d 908] reaffirmed the statutory interpretation of “violent injury” in PC 240 to include a slight touching which injures the victim’s “feelings.” However, the language of CJ 9.00 (“application of physical force”) does not require jury consideration of the victim’s feelings. (See FORECITE F 16.141a for instruction requiring infliction of “emotional stress”; see also FORECITE F 16.140c regarding requirement that the intended touching be “nonconsensual.”)
F 9.00 n4 Assault: Natural and Probable Consequences (PC 240).
For additional instructions on the concept of “natural and probable consequences,” see FORECITE F 3.02, et al. (E.g., requirement that jury objectively consider only the circumstances known to the defendant when the act was committed.)
F 9.00 n5 Transferred Intent Not Applicable To Assault.
SUBSEQUENT HISTORY: CJ Instruction Modified To Comport With FORECITE. The 6th Edition amended CJ 9.10 to permit transferred intent only when an added intent is required (e.g., to commit mayhem, rape, etc.) per PC 220.
APPELLATE ISSUE ALERT: Non PC 220 assault convictions which were obtained using CJ 9.10 (5th Edition) may be subject to challenge.
“Under Colantuono [People v. Colantuono (94) 7 C4th 206 [26 CR2d 908]] and Rocha [People v. Rocha (71) 3 C3d 893 [92 CR 172]], a defendant need not intend to strike any particular person to be guilty of an assault, and it is therefore irrelevant whether the defendant strikes his intended victim or another person. It follows that the doctrine of transferred intent does not apply at all in an assault case; there is no specific intent to transfer.” (People v. Lee (94) 28 CA4th 1724 [34 CR2d 723].)
Thus, “when the defendant shoots into a group of persons primarily targeting only one of them, the defendant can be convicted of assault with a deadly weapon as to the nontargeted members of the group. (Footnote omitted.)“ (People v. Riva (2003) 112 CA4th 981, 999; see also People v. Bland (2002) 28 C4th 313, 329.)
(See also FORECITE F 9.00 n7.)
F 9.00 n6 Can Assault With Hands Or Fists Be ADW.
The question of whether an assault with hands or fists can be an ADW under PC 245(a)(1) has not been resolved in California. (See People v. Davis (96) 42 CA4th 806, 814-15 [49 CR2d 890].) [See Brief Bank # B-688 for additional briefing on this issue.]
(See FORECITE F 9.02 n4.)
F 9.00 n7 Assault: No Intent Required As To A Particular Victim.
Transferred intent does not apply to assault because there is no specific intent to transfer. (See People v. Lee (94) 28 CA4th 1724, 1737 [34 CR2d 723]; see also FORECITE F 9.00 n5.) Rather, a person is liable for assault against anyone to whom injury is reasonably foreseeable, when there is a willful intent to commit a violent act. (See FORECITE F 9.00 n1.) Thus, for example, when an assault is made against a person holding a baby, there is liability for an assault against the baby even if the only intent was to commit a violent act against the adult. (People v. Tran (96) 47 CA4th 253, 261-62 [54 CR2d 650].)
As to the foreseeability of a particular victim, see FORECITE F 9.00 n1 and F 9.00b. [See Brief Bank # B-709 for additional briefing on this issue.]
(See also FORECITE F 9.00 n5.)
F 9.00 n8 Assault / ADW.
(See FORECITE F 9.40 n15 [Robbery: Instruction Upon Lesser Offense Of Assault Upon Request].)
F 9.00 n9 Post-Colantuono Instruction Improperly Permits Conviction Based On Negligence.
CJ 9.00 (1998 Revision) is erroneous because it states a mere negligence standard. (People v. Williams (2001) 26 C4th 779 [111 CR2d 114]; see also People v. Smith (97) 57 CA4th 1470 [67 CR2d 604]; People v. Riva (2003) 112 CA4th 981, 997 [the 1998 version of CALJIC No. 9.00, which was not before the court in Williams, suffers from the same defect as its predecessor].) In Williams, the California Supreme Court rectified this problem by requiring the defendant to have actual knowledge of “facts that wold lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct.” (Williams, 26 C4th at 788.)
See FORECITE F 9.00a.
F 9.00 n10 Outline Of Defenses To Assault Crimes.
THIS ENTRY HAS BEEN DELETED.
F 9.00 n11 Assault: Shooting At Occupied Vehicle Does Not Constitute Assault.
Merely shooting at an occupied vehicle does not necessarily constitute an assault. The person shooting must have actual knowledge of “facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct.” (See People v. Williams (2001) 26 C4th 779 [111 CR2d 114].)
F 9.00 n12 Improper To Refer To The Prosecution as “The People.”
Reference to the prosecution as “The People” may implicate the defendant’s state and federal constitutional rights to due process and fair trial by jury. (See FORECITE F 0.50d.) Any reference to “The People” should be changed to “The Prosecution.”
F 9.00 n13 Assault: Multiple Victims.
People v. Raviart (2001) 93 CA4th 258 [112 CR2d 850] held that two convictions of assault are permissible when the defendant, who was confronted by two police officers, drew a loaded handgun and pointed it at one of the officers under circumstances from which the jury could conclude that the defendant had the intent to shoot both officers.
F 9.00 n14 Assault: Requirement Of Overt Act.
In clarifying the mental state required for assault, the California Supreme Court explained that an assault is an act done toward the commission of a battery and that “[a]n assault occurs whenever the next movement would, at least to all appearance, complete the battery.” (People v. Williams (2001) 26 C4th 779, 786 [111 CR2d 114] [internal citations, quotation marks and italics omitted]; People v. Raviart (2001) 93 CA4th 258 [112 CR2d 850] rejected the defendant’s argument that gun must actually be pointed at the victim to constitute an assault].)
“We do not understand this statement to mean that for the crime of assault to occur, the defendant must in every instance do everything physically possible to complete a battery short of actually causing physical injury to the victim. Such a holding would be inconsistent with numerous precedents…. [citations]” (Raviart, 93 CA4th at 266.) For example, an assault may be committed by “[h]olding up a fist in a menacing manner, drawing a sword or bayonet, [or] presenting a gun at a person who is within its range….” (People v. McMakin (1857) 8 C 547, 548.)
Hence, the overt act required for an assault requires that the defendant bring the weapon “into a position where he [can] use it against [the potential victim]….” (Raviart, 93 CA4th at 266.)
F 9.00 n15 Assault: Knowledge Of The Act’s Potential For Injury.
People v. Williams (2001) 26 C4th 779 [111 CR2d 114] held that subjective knowledge of the dangerousness of the act is not required. (But see dissenting opinion of Kennard, J. [without requiring subjective appreciation of the risk majority fashions a standard equivalent to negligence]; but see People v. Wright (2002) 100 CA4th 703 [123 CR2d 494] [analyzing and criticizing the Williams decision].)
F 9.00a
Assault: Intent And Knowledge — Required Elements
*Replace elements of CJ 9.00 with the following:
The crime of assault requires that each of the following elements must be proved:
1. The defendant willfully intended to commit an act or acts.
2. When the act[s] [was] [were] committed the defendant [was actually aware] [had actual subjective knowledge] of certain facts.
3. A reasonable person in the defendant’s situation, and knowing the facts which the defendant knew, would have [realized] [concluded] that a battery would directly, naturally and probably result from the defendant’s act[s].
Points and Authorities
See People v. Williams (2001) 26 C4th 779, 790 [111 CR2d 114]. (But see People v. Wright (2002) 100 CA4th 703 [123 CR2d 494] [analyzing and criticizing the Williams decision].)
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
NOTE: Because Williams established an objective reasonable person standard the jury must consider the circumstances from the perspective of a reasonable person in the defendant’s situation. (See FORECITE F 5.12h.)
The dissent in People v. Williams (2001) 26 C4th 779, 796 [111 CR2d 114] would require subjective knowledge of the risk of harm to avoid utilizing a criminal negligence standard for assault. An instruction based on the dissent could provide as follows:
The crime of assault requires that each of the following elements must be proved:
1. The defendant willfully intended to commit an act or acts.
2. When the act[s] [was] [were] committed the defendant had either an intent to injure or a subjective awareness of the risk of injury to another.
F 9.00b
Assault: Knowledge Of The Act’s Potential For Injury
See FORECITE F 9.00 n15.
F 9.00c THIS ENTRY HAS BEEN DELETED.
F 9.00d
Defendant’s Knowledge Of Consequences:
Consideration Only Of Circumstances Known To Defendant
When The Act Was Committed
*Add to CJ 9.00 (as supplemented by FORECITE 9.00b):
In deciding whether a battery would probably and directly result from the defendant’s acts, you may only consider those facts which were actually known to the defendant when the alleged act was committed.
Points and Authorities
An assault requires that the defendant have actual knowledge of “facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct.” (People v. Williams (2001) 26 C4th 779, 788 [111 CR2d 114]; see also FORECITE F 9.00a.) This is so because the objective reasonable person standard must be considered from the perspective of a reasonable person in the defendant’s situation. (See People v. Humphrey (96) 13 C4th 1073, 1086 [56 CR2d 142]; see also FORECITE F 3.40b and F 5.12h.) Obviously, this requirement must be based upon only those circumstances known to the defendant at the time the act was committed. (See e.g., FORECITE F 3.02d.) Otherwise, the requirement that the criminal act and intent concur (PC 20) would not be satisfied. (See e.g., FORECITE F 3.31.5 n1.)
Hence, the jury should be instructed to limit its consideration of the knowledge of the consequences issue to the circumstances which were actually known to the defendant when the act was committed. Otherwise, there is a danger that a finding of the requisite knowledge may be based upon circumstances which occurred after the act was committed and about which the defendant was unaware.
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
F 9.00e
Assault: Application Of Physical Force Requires Actual Touching
*Add to CJ 9.00:
As used in this instruction, the term “application of physical force” means an actual touching of another person.
Points and Authorities
It is the essence of an assault that a battery (i.e., an unlawful touching of another person) be contemplated. (See People v. Colantuono (94) 7 C4th 206, 214 [26 CR2d 908].) CJ 9.00 purports to convey this requirement through use of the term “application of physical force.” However, this language could be interpreted by the jury to permit conviction of assault based upon a “display” of physical force even though an unlawful touching was neither contemplated nor likely to result. For example, it could reasonably be concluded that the act of firing a shot 50 yards over another person’s head to frighten the other person constitutes an application of physical force because the display of physical force was used to influence the other person. (To apply means “to put to use … for some practical purpose ….” (Webster’s 7th New Collegiate Dictionary (1965), p. 43.) Yet, such an act would not normally constitute an assault because it would not “by its nature likely and directly result in a [unlawful touching of the other person].” (Colantuono, 7 C4th at 218, fn 10.) (In some circumstances, a conditional display of force may constitute an assault, but additional elements must be shown to do so (see FORECITE F 9.00g.)
In sum, because the term “application of physical force” may connote to the jury a display of force which does not contemplate an unlawful touching of another person, CJ 9.00 should be clarified as set forth above.
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
F 9.00f
Assault: Consideration Of Whether Or Not Actual Injury Occurred
*Modify ¶ 7 of CJ 9.00 to provide as follows [added language is capitalized; deleted language is between <<>>]:
To constitute an assault, it is not necessary that any actual injury be inflicted. However, WHETHER OR NOT <<if>> an injury was inflicted <<it>> may be considered in connection with other evidence in determining whether an assault was committed [and, if so, the nature of the assault].
Points and Authorities
CJ 9.00 instructs the jury that it may consider “if an injury is inflicted” in determining whether an assault was committed. (See generally People v. Beasley (2003) 105 CA4th 1078 , 1087 [130 CR2d 717]; People v. Russell (43) 59 CA2d 660, 665 [139 P2d 661].) However, the absence of an injury may be just as relevant as the presence of an injury to the jury’s determination of whether an unlawful touching was a direct and probable result of the defendant’s conduct. For example, if the defendant contends that the act was committed in such a way as to merely scare the victim without actual imposition of physical force, the fact that no injury was actually inflicted would be highly relevant to this defense.
Accordingly, because “[t]here should be absolute impartiality as between the people and the defendant in the matter of instructions …” (People v. Moore (54) 43 C2d 517, 526-27 [275 P2d 485], accord Reagan v. U.S. (1895) 157 US 301, 310 [39 LEd 709; 15 SCt 610]), CJ 9.00 should be modified as set forth above to instruct the jury that it may consider both the presence and absence of actual injury. Instructions which give an unfair advantage to the prosecution violate the “balance” required by the due process clause of the 14th Amendment. (See FORECITE PG VII(C)(21).)
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
F 9.00g
Conditional Assault
*Add to CJ 9.00:
Defendant is charged with assault based on the act of __________ (insert conditional act upon which assault is predicated; e.g., pointing a loaded gun at another person). In order to convict the defendant of assault based upon this act, the prosecution must prove beyond a reasonable doubt that the defendant committed the alleged act and at the time the act was committed:
1. The defendant had the present ability to apply physical force [unlawfully touch] the other person;
2. The defendant intended to commit the threatened violent act unless the other person immediately performed a condition imposed by the defendant;
3. The defendant communicated to the other person [his] [her] intention to commit the violent act unless the condition was immediately performed.
Points and Authorities
Normally an assault requires the actual commission of a violent act. (See People v. Colantuono (94) 7 C4th 206, 218-19 [26 CR2d 908].) However, a “conditional offer of violence” may constitute an assault if compliance with the condition is demanded immediately and the defendant intends immediately to enforce performance of the condition by the threatened act of violence. (See People v. McMakin (1857) 8 C 547, 548-49; see also, People v. Fain (83) 34 C3d 350, 356-57 [193 CR 890]; People v. Vorbach (84) 151 CA3d 425, 429 [198 CR 712].) Furthermore, the condition and the defendant’s intent to force its performance with the violent act must be communicated to the victim. (See e.g., People v. Fain (83) 34 C3d 350, 356 [193 CR 890].) While no case has directly considered whether the threat must be verbalized, the vast majority of published conditional assault cases do involve verbal threats.
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
NOTES
[See Brief Bank # B-652 a/ # B-652b and Opinion Bank # O-189 for additional briefing and an unpublished opinion discussing the question of whether the intent must be verbalized.]
F 9.00h
Assault and/or Battery On Public Transportation
(PC 241.3; PC 243.35)
*Add to CJ 9.00:
[Defendant is accused [in Count[s] ____] of having violated section [241.3] [243.35] of the Penal Code, a crime.]
Every person who commits a[n] [assault] [battery] against a person on the property of, or on a motor vehicle of, a public transportation provider, is guilty of a violation of Penal Code Section [241.3] [243.35].
In order to prove such crime, each of the following elements must be proved:
1. A[n] [assault] [battery] was committed against the person of another, and;
2. The [assault] [battery] occurred on [the property of] [a motor vehicle of] a public transportation provider.
“Public transportation provider” means a publicly or privately owned entity that operates, for the transportation of persons for hire, a bus, taxicab, streetcar, cable car, trackless trolley, or other motor vehicle, including a vehicle operated on stationary rails or on a track or rail suspended in air, or that operates a school bus.
“On the property of” means the entire station where public transportation is available, including the parking lot reserved for the public who utilize the transportation system.
Points and Authorities
Assembly bill 588 repeals and adds PC 241.3 and adds PC 243.35 to repeal and recast the assault offense and would add a battery offense to apply to situations where the offenses are committed against any person on the property of, or in the motor vehicle of, a public transportation provider, as defined.
F 9.00i
Assault: Requires Either Intent To Commit Battery Or An
Act “Substantially Certain” To Result In A Battery
(See FORECITE F 9.00a.)
F 9.00j
Assault: Recklessness Insufficient
*Add to CJ 9.00 as follows:
ALTERNATIVE # 1:
Mere recklessness or criminal negligence is not enough to convict the defendant of assault. The defendant must have had actual knowledge of facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct.
Unless all jurors agree that the prosecution has proven beyond a reasonable doubt that the defendant had the required knowledge when [he] [she] committed the alleged act[s], the defendant may not be convicted of assault.
ALTERNATIVE # 2:
Reckless conduct alone is not sufficient to constitute an assault.
Points and Authorities
Reckless conduct alone does not constitute a sufficient basis for assault or for battery even if the assault results in an injury to another. (See People v. Williams (2001) 26 C4th 779, 788 [111 CR2d 114]; see also People v. Colantuono (94) 7 C4th 206, 219 [26 CR2d 908].)
Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See FORECITE PG VII(C).]