SERIES 800 ASSAULTIVE AND BATTERY CRIMES
F 860 Assault On Firefighter Or Peace Officer With Deadly Weapon Or Force Likely To Produce Great Bodily Injury (PC 240, 245(c) & (d)(1)-(3))
TABLE OF CONTENTS
F 860.5 Assault on Firefighter Or Peace Officer With Deadly Weapon Or Force Likely To Produce Great Bodily Injury: Elements And Definitions
F 860.5 Inst 1 Separate Enumeration Of Combined Elements
F 860.5 Inst 2 Separate Enumeration Of Combined Elements
F 860.5 Inst 3 Separate Enumeration Of Combined Elements: Knowledge Of Facts And Consequences—Reasonable Person Standard
F 860.5 Inst 4 Concurrence Of Act And Intent
F 860.5 Inst 5 (a & b) Reasonable Person In Same Situation Standard
F 860.5 Inst 6 Willfully: Knowledge Requirement
F 860.5 Inst 7 Reasonably Should Have Known Standard: Objective Reasonableness
F 860.5 Inst 8 Willfully: Balance
F 860.5 Inst 9 (a & b) Defendant’s Knowledge Of Consequences: Consideration Only Of Circumstances Known To Defendant When The Act Was Committed
F 860.5 Inst 10 Rude Or Angry Touching As Element Of The Charge
F 860.5 Inst 11 Harmful Or Offensive Touching Should Be Included In The Element Language
F 860.5 Inst 12 Assault: Recklessness Insufficient
F 860.5 Inst 13 Determination Of Deadly Weapon: Two-Pronged Jury Finding Required
F 860.5 Inst 14 Assault With Deadly Weapon: Bare Hands Or Feet Are Not Deadly Weapons (PC 245(a))
F 860.5 Inst 15 Assault With Feet: Footwear As Deadly Weapon
F 860.6 Assault On Firefighter Or Peace Officer With Deadly Weapon Or Force Likely To Produce Great Bodily Injury: Defense Theories
F 860.6 Inst 1 (a & b) Assault: Recklessness Insufficient
F 860.6 Inst 2 Effect Of Intent To Frighten
F 860.6 Inst 3 Pinpoint Instruction: Intent To Frighten As Defense Theory [CALCRIM 3400 adaption]
F 860.6 Inst 4 Pinpoint Instruction: Intent To Frighten [CALCRIM 350 format]
F 860.7 Assault On Firefighter Or Peace Officer With Deadly Weapon Or Force Likely To Produce Great Bodily Injury: Preliminary Fact Issues [Reserved]
F 860.8 Assault On Firefighter Or Peace Officer With Deadly Weapon Or Force Likely To Produce Great Bodily Injury: Unanimity/Duplicity/Multiplicity [Reserved]
F 860.9 Assault On Firefighter Or Peace Officer With Deadly Weapon Or Force Likely To Produce Great Bodily Injury: Lesser Offense Issues [Reserved]
Return to Series 800 Table of Contents.
F 860.5 Assault on Firefighter Or Peace Officer With Deadly Weapon Or Force Likely To Produce Great Bodily Injury: Elements And Definitions
F 860.5 Inst 1 Separate Enumeration Of Combined Elements
*Modify CC 860, Element 1 <Alternative 1A—force with weapon>, as follows [added language is underlined; deleted language is stricken]:
[1. The defendant did an act with (a deadly weapon/a firearm/a semiautomatic firearm/a machine gun/an assault weapon/a .50 BMG rifle) that;
2. The act done by the defendant would by its nature would directly and probably result in the application of force to a person;]
[Renumber remaining Elements]
*Modify CC 860, Element 1,<Alternative 1B—force without weapon>, as follows [added language is underlined; deleted language is stricken]:
[1A. The defendant did an act that;
2. The act done by the defendant would by its nature would directly and probably result in the application of force to a person, and
[Renumber remaining Elements]
Points and Authorities
See FORECITE F 3500.2 Inst 1.
F 860.5 Inst 2 Separate Enumeration Of Combined Elements
*Modify CC 860, Element 5, as follows [added language is underlined]:
5. When the defendant acted, the person assaulted was
A. A (firefighter/peace officer);
AND
B. Lawfully performing (his/her) duties as a (firefighter/peace officer);
Points and Authorities
See FORECITE F 3500.2 Inst 1.
F 860.5 Inst 3 Separate Enumeration Of Combined Elements: Knowledge Of Facts And Consequences—Reasonable Person Standard
*Replace CC 860, Element 3, with the following:
3. When the defendant did that act (he/she) was aware of certain facts;
4. A reasonable person in the defendant’s situation, and considering all the circumstances as they were known to the defendant and appeared to the defendant, would have realized that (his/her) act by its nature would directly and probably result in the application of force to someone;
[Renumber remaining Elements.]
Points and Authorities
Separate Enumeration Of Elements—See FORECITE F 3500.2 Inst 1.
Reasonable Person Standard—See FORECITE F 820.5 Inst 3; see also CALCRIM 505, paragraph 3; CC 851, paragraph 4.
F 860.5 Inst 4 Concurrence Of Act And Intent
*Modify CC 860 Elements 3, 4, 5 and 6, as follows [added language is underlined; deleted language is stricken]:
[Change “When the defendant acted …” to “When the defendant did [the act referred to in Element [1] [1A] above] [that act] …”]
Points and Authorities
See FORECITE F 251 Inst 3.
F 860.5 Inst 5 (a & b) Reasonable Person In Same Situation Standard
Alternative a:
*Modify CC 860 Element 3, as follows [added language is underlined]:
…would lead a reasonable person in the same situation and knowing what the defendant knew to realize that (his/her) act by its nature would directly and probably result in the application of force to someone;
Alternative b:
[See FORECITE F 860.5 Inst 3.]
Points and Authorities
See FORECITE F 820.5 Inst 3.
F 860.5 Inst 6 Willfully: Knowledge Requirement
See FORECITE F 820.5 Inst 1.
F 860.5 Inst 7 Reasonably Should Have Known Standard: Objective Reasonableness
*Add to CC 860, Element 6 [CC 851 Format]:
When evaluating whether the defendant reasonably should have known that the person assaulted was a (firefighter/peace officer), consider all the circumstances as they were known by or appeared to the defendant. Also consider what conduct would appear to be necessary to a reasonable person in the same situation as the defendant.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Objective Reasonableness—See FORECITE F 820.5 Inst 3; see also CALCRIM 505, paragraph 3; CC 851, paragraph 4.
Use Of The Term “Defendant”—The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
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 860.5 Inst 8 Willfully: Balance
See FORECITE F 820.3 Inst 2.
F 860.5 Inst 9 (a & b) Defendant’s Knowledge Of Consequences: Consideration Only Of Circumstances Known To Defendant When The Act Was Committed
*Add to CC 860:
Alternative a [CC 851 Format]:
When evaluating whether the defendant reasonably should have known that the person assaulted was a (firefighter/peace officer), consider all the circumstances as they were known by or appeared to the defendant. Also consider what conduct would appear to be necessary to a reasonable person in the same situation with the same knowledge.
Alternative b:
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
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Assault: Knowledge Element—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; 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 (1996) 13 C4th 1073, 1086; 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.
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.
CALJIC NOTE: See FORECITE F 9.00d.
F 860.5 Inst 10 Rude Or Angry Touching As Element Of The Charge
*Modify CC 860, paragraph 4, sentence 2, as follows and add to the enumerated elements [added language is underlined; deleted language is stricken]:
The slightest You may find that a slight touching can be enough if it is to have been done in a harmful or offensive manner of the prosecution has proven beyond a reasonable doubt that the touching was done in a rude or angry way.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Rude And Angry As Element—In the case of a slight touching, the “rude or angry” requirement should be an element of the charge. (See e.g., CALCRIM 960, paragraph 4.) Therefore, the prosecution must prove that requirement beyond a reasonable doubt. (See In re Winship (1970) 397 US 358 [25 LEd2d 368; 90 SCt 1068]; see also FORECITE F 103.2 Inst 1.)
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 860.5 Inst 11 Harmful Or Offensive Touching Should Be Included In The Element Language
*Modify CC 860 Element 1 and 1A, as follows [added language is underlined; deleted language is stricken]:
[Change “application of force to a person” to “touching of [a person] [____________ <name of alleged victim>] in a harmful or offensive manner“]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Incorporation Of Definition Into Element—Since “application of force” actually is defined as “touching in a harmful or offensive manner,” it is potentially confusing surplusage to include the “application of force” language. (See generally FORECITE F 417.5 Inst 2; compare CC 925, Element 1; CC 960, Element 1.)
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]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 860.5 Inst 12 Assault: Recklessness Insufficient
See FORECITE F 860.6 Inst 1.
F 860.5 Inst 13 Determination Of Deadly Weapon: Two-Pronged Jury Finding Required
*When appropriate, replace definition of deadly weapon in CC 860 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
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Two Pronged Finding Re: “Weapons”—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 (1969) 71 C2d 303, 327.)
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.)
CALCRIM 860 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.)
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
[See Brief Bank # B-641 and Opinion Bank # O-182 for additional briefing and an unpublished opinion on this issue .]
CALJIC NOTE: See FORECITE F 9.02a.
F 860.5 Inst 14 Assault With Deadly Weapon: Bare Hands Or Feet Are Not Deadly Weapons (PC 245(a))
*Add to CC 860 when both assault with a deadly weapon and assault likely to produce great bodily injury are charged:
You may not convict the defendant of assault with a deadly weapon or instrument based on the use or attempted use of bare hands and/or feet.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Bare Hands Or Feet Not Deadly Weapons—PC 245(a)(1) permits conviction based on (1) an assault with a deadly weapon or instrument other than a firearm or (2) by “any means of force likely to produce great bodily injury.” The jury may not rely upon the defendant’s use or attempted use of bare hands or bare feet to convict of assault with a deadly weapon or instrument. (People v. Aguilar (1997) 16 C4th 1023, 1034; cf. People v. Azor (1998) 678 NYS2d 238 [arm used to choke victim not “dangerous instrument” within meaning of robbery statute]; see also People v. Beasley (2003) 105 CA4th 1078 [absent a charge of assault by force likely to produce great bodily injury, defendant’s use of hands and feet is not sufficient to establish a violation of PC 245(a)(1)].) The jury may rely on the use or attempted use of bare hands or bare feet to convict the defendant of assault by means of force likely to produce great bodily injury but the jury must be instructed to find that as a result of the physical force used or attempted to be used and the manner of such use or attempt, there was a likelihood of great bodily injury being inflicted upon another person. (Aguilar, 16 C4th at 1037.)
Use Of The Term “Defendant”—The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
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.
CALJIC NOTE: See FORECITE F 9.02 b/F 9.02c/F 9.08a.
F 860.5 Inst 15 Assault With Feet: Footwear As Deadly Weapon
*Add to CC 860 as follows:
The use or attempted use of bare feet does not constitute a deadly weapon. However, it is alleged that, at the time of the incident, the footwear the defendant was wearing was used as a deadly weapon. This requires the prosecution to prove beyond a reasonable doubt that the footwear was:
1. Capable of inflicting substantially greater bodily injury than could have been inflicted by the use of bare feet; and
2. A weapon capable of being used to inflict death or great bodily injury.
The prosecution is required to prove both of these elements. If you have a reasonable doubt as to whether either element has been proven, you must resolve that doubt in favor of the defendant and find [him] [her] not guilty of assault with a deadly weapon.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Jurors Must Determine If Footwear Is A Deadly Weapon—In People v. Aguilar (1997) 16 C4th 1023, the Supreme Court recognized that some footwear, such as hob-nailed or steel-toed boots, may constitute weapons within the meaning of PC 245(a)(1). (Aguilar, 16 C4th at 1034.) If the prosecution is relying upon such a theory, it would be up to the jury to determine whether the footwear used by the defendant amounted to a deadly weapon. (Ibid. at 1034.) Because bare feet, as a matter of law, are not a deadly weapon per Aguilar, footwear cannot be a deadly weapon unless it may be used to inflict greater injury than could be inflicted by bare feet and to inflict death or great bodily injury. (See CJ 9.02, ¶ 3.)
However, notwithstanding the legal conclusion in Aguilar, lay jurors may believe that bare feet alone can be a deadly weapon. Hence, the jury must be instructed so as to preclude reliance upon such an assumption.
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.
CALJIC NOTE: See FORECITE F 9.02d/9.08b.
F 860.6 Assault On Firefighter Or Peace Officer With Deadly Weapon Or Force Likely To Produce Great Bodily Injury: Defense Theories
F 860.6 Inst 1 (a & b) Assault: Recklessness Insufficient
*Add to CC 860 as follows:
Alternative a:
Mere recklessness or criminal negligence is not enough [alone] [by itself] 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 b:
Reckless conduct alone is not sufficient to constitute an assault.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Right To Instruction On Matters Which Are Not Alone Sufficient To Convict—See FORECITE F 362 Note 9.
Recklessness Insufficient For Assault—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; see also People v. Colantuono (1994) 7 C4th 206, 219.)
No Reference To “The People”—The defendant objects to use of the term “the People” in this instruction and throughout this trial. [See FORECITE F 100.2 Note 1; CALCRIM Motion Bank # CCM-006.]
Use Of The Term “Defendant”—The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
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.
CALJIC NOTE: See FORECITE F 9.00j.
F 860.6 Inst 2 Effect Of Intent To Frighten
See FORECITE F 860.6 Inst 3 and Inst 4.
F 860.6 Inst 3 Pinpoint Instruction: Intent To Frighten As Defense Theory [CALCRIM 3400 adaption]
The defense contends (1) that the defendant only intended to frighten _______________ <name of alleged victim> by ____________ <e.g., shooting over his/her head> and (2) the defendant was not aware of any facts that would have led a reasonable person to realize that (his/her) act would directly and probably result in the harmful or otherwise touching of _______________ <name of alleged victim>.
However, the defense does not need to prove these contentions. If you have a reasonable doubt as to any essential fact or element of the charge including whether defendant was aware of facts that would have led a reasonable person to realize that (his/her) act by its nature would directly and probably result in a harmful or offensive touching of _______________ <name of alleged victim>, 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.
Intent To Frighten As Defense Theory – Mere recklessness or criminal negligence is not enough to convict of assault. (People v. Williams (2001) 26 C4th 779, 789; see also People v. Colantuono (1994) 7 C4th 206, 215-16.) In other words, “a jury cannot find a defendant guilty of assault based on facts he should have known but did not know. [Citation.]” (Williams, 26 C4th at 788.)
Accordingly, if the defendant merely intended to frighten the victim (e.g., by shooting over his head), the mens rea requirement for assault is not present absent some other fact – actually known by the defendant – establishing that the act of shooting over the victim’s head would by its nature probably and directly result if the application of physical force against the victim. (Ibid.)
The conclusion of People v. Burres (1980) 101 CA3d 341 that “a conviction for assault may not be grounded upon intent only to frighten” (see also People v. Wolcott (1983) 34 C3d 92, 99 ) was apparently overruled by People v. Colantuono, 7 C4th at 221, fn. 11. However, as Colantuono recognized, evidence that the defendant did not intend to “do violence to the victim” is still relevant to whether under “the totality of circumstances” the defendant had the required mental state. (Id. at 218.)
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 860.6 Inst 4 Pinpoint Instruction: Intent To Frighten [CALCRIM 350 format]
You have heard evidence that defendant intended only to frighten _______________ <name of alleged victim> without actually touching (him/her) in a harmful or offensive manner. Consider that testimony, along with all the other evidence in attempting to decide whether the prosecution has proved the defendant guilty beyond a reasonable doubt that defendant was aware of facts that would lead a reasonable person to realize that (his/her) act by its nature would directly and probably result in the harmful or offensive touching of _______________ <name of alleged victim>.
Remember that you may not convict the defendant of any crime unless the prosecution has proved each fact essential to the conclusion that the defendant is guilty of that crime.
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.
Intent To Frighten As Defense Theory – See FORECITE F 860.6 Inst 3.
“Consider” vs. “May Consider” – See FORECITE F 105.2 Inst 1.
“Leave With” vs. “Create” A Reasonable Doubt – See FORECITE F 350 Inst 2.
Sufficient “By Itself” For A Reasonable Doubt – See FORECITE F 301 Inst 13.
“Attempting To Decide” – See FORECITE F 100.7 Inst 1.
“Prosecution Must Prove” vs. “You Must Be Convinced” – See FORECITE F 224 Inst 5.
CAVEAT: See FORECITE F 860.5 et seq. for additional issues regarding the CALCRIM instructions on the elements of assault.
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 860.7 Assault On Firefighter Or Peace Officer With Deadly Weapon Or Force Likely To Produce Great Bodily Injury: Preliminary Fact Issues [Reserved]
F 860.8 Assault On Firefighter Or Peace Officer With Deadly Weapon Or Force Likely To Produce Great Bodily Injury: Unanimity/Duplicity/Multiplicity [Reserved]
F 860.9 Assault On Firefighter Or Peace Officer With Deadly Weapon Or Force Likely To Produce Great Bodily Injury: Lesser Offense Issues [Reserved]
