Return to CALJIC Part 9-12 – Contents
F 9.02 n1 ADW: Juror Unanimity (PC 245(a)(1) & PC 245(a)(2)).
PC 245(a)(1) requires either the assault be committed by use of a deadly weapon or by means of force likely to produce great bodily injury. When more than one act is relied upon by the prosecution to meet this statutory requirement, the jury should be instructed to agree upon a single act. [See Brief Bank # B-577 for briefing on this issue.]
F 9.02 n2 ADW: Failure To Define Assault As Reversible Error.
In People v. Ponce UNPUBLISHED (F018829), the court held that it was reversible error to fail to define assault in terms of CJ 9.00 after instructing the jury on assault with a deadly weapon per CJ 9.02. [The opinion in Ponce is available to FORECITE subscribers. Ask for Opinion Bank # O-185.]
(See FORECITE F 9.00 n9 [Post-Colantuono Instruction Improperly Permits Conviction Based On Negligence].)
F 9.02 n3 An Assault With Hands or Fists Not ADW.
(See FORECITE F 9.08a and F 9.08b.)
F 9.02 n4 Assault (PC 240) As Lesser Offense To Robbery (PC 211).
(See FORECITE F 9.40 n15 [Robbery: Instruction Upon Lesser Offense Of Assault Upon Request].)
F 9.02 n5 Aggravated Assault: Unprotected Consensual Sexual Intercourse By HIV Positive Individual.
A defendant who is a knowing carrier of the HIV virus is not guilty of aggravated assault in violation of PC 245(a)(1) unless there is evidence that such unprotected sex is likely to result in the transmission of HIV. (Guevara v. Superior Court (98) 62 CA4th 864.)
Guevara v. Superior Court (98) 62 CA4th 864 held that PC 245(a)(1) may be an aggravated assault committed by a HIV-positive individual who has unprotected consensual sexual intercourse with another person without disclosing the fact that the individual is HIV positive.
Cf. John B. v. Superior Court (2006) 38 C4th 1177 [tort of negligent transmission of HIV does not require actual knowledge of infection; “reason to know” is sufficient].
F 9.02 n6 Aggravated Assault: Consent Is Generally Not Relevant.
Unlike rape and robbery, lack of consent is not an element of aggravated assault under PC 245(a)(1). (Guevara v. Superior Court (97) 62 CA4th 864, 869 [73 CR2d 421].) Moreover, because the aggravated assault statute (PC 245(a)) was “obviously designed to prohibit one human being from severely or mortally injuring another…consent [is] not a defense to [an] aggravated assault charge.” (People v. Samuels (67) 250 CA2d 501, 514 [58 CR 439].) However, consent may be a defense to such a charge if the assault involved “ordinary physical contact or blows incident to sports such as football, boxing or wrestling.” (Samuels, 250 CA2d at 513; see also People v. Alfaro (76) 61 CA3d 414, 429 [132 CR 356]; but see People v. Lucky (88) 45 C3d 259, 291 [247 CR 1] [consent is no justification to voluntary mutual combat “outside the rules of sport….”].)
RESEARCH NOTE: See annotation, Consent as defense to charge of criminal assault and battery, 58 ALR 3d 662, and later case update.
F 9.02 n7 Assault With Firearm (PC 245(a)(2) Is LIO Of Discharging Firearm From A Vehicle (PC 12034(c)).
(See In re Edward G. (2004) 124 CA4th 962.)
F 9.02a
Determination Of Deadly Weapon: Two-Pronged Jury Finding Required
*When appropriate, replace definition of deadly weapon in CJ 9.02 to provide as follows:
The instrumentality which the prosecution alleges to have been a deadly weapon, namely __________, may not be found to be a deadly weapon for purposes of these instructions unless you find beyond a reasonable doubt that:
1. The instrument could be used as a deadly weapon, and
2. The defendant intended to use it as a deadly weapon.
Points and Authorities
The Supreme Court has divided dangerous and deadly weapons into two classes. The first class includes instrumentalities such as guns, dirks and blackjacks, which are weapons in the strict sense of the word as they are dangerous or deadly to others in their ordinary use so that, as a matter of law, they may be said to be dangerous and deadly weapons. (People v. Graham (69) 71 C2d 303, 327 [78 CR 217].)
Instrumentalities falling into the second class, such as ordinary razors, pocket-knives, canes, hammers, hatchets and vehicles, which are not weapons in the strict sense of the word and are not dangerous or deadly to others in the ordinary use for which they are designed, may not be said to be dangerous or deadly as a matter of law. (Graham, 71 C2d at 327-28.) For this class of instrumentalities, which includes vehicles, the jury may not conclude that the instrumentality was a deadly or dangerous weapon unless it finds (1) that the instrument could be used as a dangerous or deadly weapon and (2) that the defendant intended so to use it. (Id. at 328.)
The current CALJIC instruction fails to require the jury to make the two-pronged finding as a predicate to a determination that the instrumentality was a deadly weapon. Although the instruction does include a definition of a deadly weapon, that definition focuses upon whether the object was used in a manner which makes it capable and likely to produce death or great bodily injury. While this definition appears adequate to encompass the capability element, it does not require the jury to make the requisite finding as to intent. Accordingly, when appropriate, the instruction should be supplemented to include the required two-pronged finding.
Additionally, CJ 12.42, which discusses the circumstances for consideration in determining whether the intended use of the instrument as a weapon, should be given in such a case. Note, however, that CJ 12.42 should be modified to require that the intended use be for a “deadly” rather than “dangerous” purpose in cases involving a determination of whether the instrumentality was a deadly weapon. (See FORECITE F 12.42a.)
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).]
[See FORECITE F 9.08a and F 9.08b.]
NOTES
[Additional briefing and an unpublished opinion on this issue are available to FORECITE subscribers. Ask for Brief Bank # B-641.]
F 9.02b
Assault With Deadly Weapon:
Bare Hands Or Bare Feet Are Not Deadly Weapons
(PC 245(a))
*Add to CJ 9.02:
[See FORECITE F 9.08a and F 9.08b.]
(See also FORECITE F 9.00 n9 [Post-Colantuono Instruction Improperly Permits Conviction Based On Negligence].)
F 9.02c
Assault With Deadly Weapon: Bare Hands Or Feet Are Not Deadly Weapons
(PC 245(a))
*Add to CJ 9.02 when both assault with a deadly weapon and assault likely to produce great bodily injury are charged:
(See FORECITE F 9.08a.)
F 9.02d
Assault With Feet: Footwear As Deadly Weapon
*Add to CJ 9.02 as follows:
(See FORECITE F 9.08b.)
F 9.02e
Assault: Recklessness Insufficient
*Re: CJ 9.02:
(See FORECITE F 9.00j.)
