SERIES 800 ASSAULTIVE AND BATTERY CRIMES
F 875 – F 877
TABLE OF CONTENTS
F 875 Assault With Deadly Weapon Or Force Likely To Produce Great Bodily Injury (PC 240, PC 245(a)(1)–(3) & (b))
F 875 Inst 1 Pinpoint Instruction: Unloaded Gun [CALCRIM 3400 adaption]
F 876 Assault With Stun Gun Or Taser® (PC 240, PC 244.5)
F 877 Assault With Caustic Chemicals (PC 244)
Return to Series 800 Table of Contents.
F 875 Assault With Deadly Weapon Or Force Likely To Produce Great Bodily Injury (PC 240, PC 245(a)(1)–(3) & (b)) (Case Law Discussing This Instruction)
Adapt from FORECITE F 860.
F 875 Inst 1 Pinpoint Instruction: Unloaded Gun [CALCRIM 3400 adaption]
The defendant contends he did not have the present ability to inflict injury because the firearm [was unloaded] [was not used as a club or bludgeon].
However, the defense does not need to prove these contentions. If you have a reasonable doubt as to whether the prosecution has proved any essential fact or element of the charge including whether the gun was [loaded] [used as a club or bludgeon], you must vote to find (him/her) not guilty.
[NOTE: This instruction is adapted from CC 3400. However, the last sentence has been augmented in light of the prosecution’s duty to prove all essential facts and elements even if the defense relies on a specific theory.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – See CALCRIM Motion Bank # CCM-001.]
Right To Instruction Relating Defense Theory To Burden Of Proof – See FORECITE F 315.1.2 Inst 2.
Gun Must Be Loaded Or Used As A Club Or Bludgeon – People v. Rodriguez (1999) 20 C4th 1, 11, fn. 3.
WARNING! Federal constitutional claims may be lost without proper federalization – To preserve federal claims counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 876 Assault With Stun Gun Or Taser® (PC 240, PC 244.5)
Adapt from FORECITE F 860.
F 877 Assault With Caustic Chemicals (PC 244)
Adapt from FORECITE F 860.
