SERIES 900 ASSAULTIVE AND BATTERY CRIMES
F 916 Assault By Conditional Threat
TABLE OF CONTENTS
F 916.1 Titles And Identification Of Parties
F 916.1 Inst 1 Assault By Conditional Threat—Title
F 916.1 Inst 2 Identification Of Prosecution And Defendant
F 916.2 Assault By Conditional Threat—Tailoring To Facts: Persons, Places, Things And Theories
F 916.2 Inst 1 Tailor To Facts: Alleged Victim
F 916.2 Inst 2 Tailor To Facts: Alleged Act
F 916.3 Assault By Conditional Threat—Language That Is Argumentative, Confusing, Etc.
F 916.3 Inst 1 Definition Of Harmful Or Offensive Touching: Deletion Of Argumentative Language
F 916.3 Inst 2 Assault: Consideration Of Whether Actual Injury Occurred
F 916.4 Assault By Conditional Threat—Burden Of Proof Issues
F 916.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 916.5 Assault By Conditional Threat—Elements And Definitions
F 916.5 Inst 1 Separate Enumeration Of Willfully As An Element
F 916.5 Inst 2 Separate Enumeration: Defendant Took All Necessary Steps
F 916.5 Inst 3 Willfully: Knowledge Element
F 916.5 Inst 4 Rude Or Angry Touching As Element Of The Charge
F 916.5 Inst 5 Harmful Or Offensive Touching Should Be Included In The Element Language
F 916.5 Inst 6 Assault: Recklessness Insufficient
F 916.5 Inst 7 Conditional Assault: Requirement Of Communication
F 916.6 Assault By Conditional Threat—Defense Theories
F 916.6 Inst 1 (a & b) Assault: Recklessness Insufficient
F 916.7 Assault By Conditional Threat—Preliminary Fact Issues [Reserved]
F 916.8 Assault By Conditional Threat—Unanimity/Duplicity/Multiplicity [Reserved]
F 916.9 Assault By Conditional Threat—Lesser Offense Issues [Reserved]
Return to Series 900 Table of Contents.
F 916.1 Titles And Identification Of Parties
F 916.1 Inst 1 Assault By Conditional Threat—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 916.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 916.2 Assault By Conditional Threat—Tailoring To Facts: Persons, Places, Things And Theories
F 916.2 Inst 1 Tailor To Facts: Alleged Victim
*Modify CC 916, Elements 1 and 4, as follows;
[Tailor to replace reference to “person” with reference to “_______________ <name of alleged victim>”]
*Modify Element 5, as follows:
[Replace “someone else” with “_______________ <name of person defended>”]
Points and Authorities
See FORECITE F 820.2 Inst 1.
F 916.2 Inst 2 Tailor To Facts: Alleged Act
*Modify CC 916, Elements 1-3, as follows:
[Replace “an act” or “the act” with “_______________ <specify or describe alleged act>”]
Points and Authorities
See FORECITE F 400.2 Inst 1.
F 916.3 Assault By Conditional Threat—Language That Is Argumentative, Confusing, Etc.
F 916.3 Inst 1 Definition Of Harmful Or Offensive Touching: Deletion Of Argumentative Language
See FORECITE F 860.3 Inst 1.
F 916.3 Inst 2 Assault: Consideration Of Whether Actual Injury Occurred
*Modify CC 816, paragraph 6 and 7, as follows [added language is underlined; deleted language is stricken]:
No one needs to actually have been injured by defendant’s act. But if whether or not someone was injured, you may is a factor to consider that fact, along with all the other evidence, in deciding, if you can, whether the defendant committed an assault[, and if so, what kind of assault it was].
Points and Authorities
See FORECITE F 860.3 Inst 2.
F 916.4 Assault By Conditional Threat—Burden Of Proof Issues
F 916.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 916.5 Assault By Conditional Threat—Elements And Definitions
F 916.5 Inst 1 Separate Enumeration Of Willfully As An Element
*Modify CC 916, Element 1, as follows [added language is underlined; deleted language is stricken]:
1. The defendant willfully threatened to use force on another person unless that person immediately did an act that the defendant demanded;
2. The defendant did so willfully;
AND
[Renumber remaining Elements.]
Points and Authorities
See FORECITE F 840.5 Inst 3.
F 916.5 Inst 2 Separate Enumeration: Defendant Took All Necessary Steps
*Modify CC 916, Element 5, as follows:
5. The defendant placed (himself/herself) in a position to compel performance of the act (he/she) demanded;
AND
6. The defendant took all steps necessary to carry out (his/her) intention(;/.)
AND
[Renumber remaining Elements.]
Points and Authorities
See FORECITE F 3500.2 Inst 1.
F 916.5 Inst 3 Willfully: Knowledge Element
See FORECITE F 820.5 Inst 1.
F 916.5 Inst 4 Rude Or Angry Touching As Element Of The Charge
See FORECITE F 860.5 Inst 10.
F 916.5 Inst 5 Harmful Or Offensive Touching Should Be Included In The Element Language
See FORECITE F 860.5 Inst 11.
F 916.5 Inst 6 Assault: Recklessness Insufficient
See FORECITE F 860.5 Inst 12.
F 916.5 Inst 7 Conditional Assault: Requirement Of Communication
*Add to Elements of CC 916:
The defendant communicated to the other person [his] [her] intention to commit the violent act unless the condition was immediately performed.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Communication Requirement—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 (1983) 34 C3d 350, 356-57; People v. Vorbach (1984) 151 CA3d 425, 429.) 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 (1983) 34 C3d 350, 356.) While no case has directly considered whether the threat must be verbalized, the vast majority of published conditional assault cases do involve verbal threats.
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.
NOTES
[Additional briefing and an unpublished opinion discussing the question of whether the intent must be verbalized are available to FORECITE subscribers. [Brief Bank # B-652 a; Brief Bank # B-652 b; Opinion Bank # O-189.]
CALJIC NOTE: See FORECITE F 9.00g.
F 916.6 Assault By Conditional Threat—Defense Theories
F 916.6 Inst 1 (a & b) Assault: Recklessness Insufficient
See FORECITE F 860.6 Inst 1 (a & b).
F 916.7 Assault By Conditional Threat—Preliminary Fact Issues[Reserved]
F 916.8 Assault By Conditional Threat—Unanimity/Duplicity/Multiplicity [Reserved]
F 916.9 Assault By Conditional Threat—Lesser Offense Issues[Reserved]
