SERIES 800 ASSAULTIVE AND BATTERY CRIMES
860 NOTES
TABLE OF CONTENTS
F 860 Note 1 Assault On Firefighter or Peace Officer With Deadly Weapon Or Force Likely To Produce Great Bodily Injury: CALCRIM Cross-References And Research Notes
F 860 Note 2 Assault: Nature of the Injury (PC 240)
F 860 Note 3 Can Assault With Hands Or Fists Be ADW
F 860 Note 4 Assault: No Intent Required As To A Particular Victim
F 860 Note 5 Assault / ADW
F 860 Note 6 Assault: Shooting At Occupied Vehicle Does Not Constitute Assault
F 860 Note 7 Assault: Multiple Victims
F 860 Note 8 Assault: Requirement Of Overt Act
F 860 Note 9 Assault: Knowledge Of The Act’s Potential For Injury
F 860 Note 10 ADW: Juror Unanimity (PC 245(a)(1) & PC 245(a)(2))
F 860 Note 11 Aggravated Assault: Unprotected Consensual Sexual Intercourse By HIV Positive Individual
F 860 Note 12 Aggravated Assault: Consent Is Generally Not Relevant
F 860 Note 13 Assault On Police Officer: Elements Of Target Offense
F 860 Note 14 Assault On Police Officer: Simple Assault Or ADW As LIO
F 860 Note 15 Transferred Intent Not Applicable To Assault
F 860 Note 16 Assault: Intoxication Not A Defense (PC 240)
Return to Series 800 Table of Contents.
F 860 Note 1 Assault On Firefighter or Peace Officer With Deadly Weapon Or Force Likely To Produce Great Bodily Injury: CALCRIM Cross-References And Research Notes
CALCRIM Cross References:
CALCRIM 861 [Assault On Firefighter Or Peace Officer With Stun Gun Or Taser®]
CALCRIM 862 [Assault On Custodial Officer With Deadly Weapon Or Force Likely To Produce Great Bodily Injury]
CALCRIM 863 [Assault On Transportation Personnel Or Passenger With Deadly Weapon Or Force Likely To Produce Great Bodily Injury]
CALCRIM 875 [Assault With Deadly Weapon Or Force Likely To Produce Great Bodily Injury]
CALCRIM 876 [Assault With Stun Gun Or Taser®]
CALCRIM 877 [Assault With Caustic Chemicals]
CALCRIM 890 [Assault With Intent To Commit Sex Offense]
CALCRIM 891 [Assault With Intent To Commit Mayhem]
CALCRIM 900 [Assault On Firefighter Or Peace Officer]
CALCRIM 901 [Assault On Custodial Officer]
CALCRIM 902 [Assault On Military Personnel]
CALCRIM 903 [Assault On School District Peace Officer]
CALCRIM 904 [Assault On School Employee]
CALCRIM 905 [Assault On Juror]
CALCRIM 906 [Assault Committed On School Or Park Property]
CALCRIM 907 [Assault Committed On Public Transportation Provider’s Property Or Vehicle]
CALCRIM 915 [Simple Assault]
CALCRIM 916 [Assault By Conditional Threat]
CALCRIM 917 [Insulting Words Are Not A Defense]
Research Notes:
See CLARAWEB Forum, Assaultive And Battery Crimes—Series 800-900.
F 860 Note 2 Assault: Nature of the Injury (PC 240)
People v. Colantuono (1994) 7 C4th 206, 214, fn 4 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.”)
CALJIC NOTE: See FORECITE F 9.00 n3.
F 860 Note 3 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 (1996) 42 CA4th 806, 814-15.) [See Brief Bank # B-688 for additional briefing on this issue.]
(See FORECITE F 9.02 n4.)
CALJIC NOTE: See FORECITE F 9.00 n6.
F 860 Note 4 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 (1994) 28 CA4th 1724, 1737; 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 (1996) 47 CA4th 253, 261-62.)
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 860 Note 15.)
CALJIC NOTE: See FORECITE F 9.00 n7.
F 860 Note 5 Assault / ADW
(See FORECITE F 9.40 n15 [Robbery: Instruction Upon Lesser Offense Of Assault Upon Request].)
F 860 Note 6 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].)
CALJIC NOTE: See FORECITE F 9.00 n11.
F 860 Note 7 Assault: Multiple Victims
See FORECITE F 3515.2 Note 3.
F 860 Note 8 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 [internal citations, quotation marks and italics omitted]; People v. Raviart (2001) 93 CA4th 258 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.)
CALJIC NOTE: See FORECITE F 9.00 n14.
F 860 Note 9 Assault: Knowledge Of The Act’s Potential For Injury
People v. Williams (2001) 26 C4th 779, 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 [analyzing and criticizing the Williams decision].)
CALJIC NOTE: See FORECITE F 9.00 n15.
F 860 Note 10 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.]
CALJIC NOTE: See FORECITE F 9.02 n1.
F 860 Note 11 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 (1998) 62 CA4th 864.)
Guevara v. Superior Court (1998) 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.
CALJIC NOTE: See FORECITE F 9.02 n5.
F 860 Note 12 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 (1997) 62 CA4th 864, 869.) 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 (1967) 250 CA2d 501, 514.) 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 (1976) 61 CA3d 414, 429; but see People v. Lucky (1988) 45 C3d 259, 291 [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.
CALJIC NOTE: See FORECITE F 9.02 n6.
F 860 Note 13 Assault On Police Officer: Elements Of Target Offense
In People v. Lara (1994) 30 CA4th 658, 670-72, the court rejected the defendant’s argument that the engaged-in requirement of PC 243 and PC 148 always requires instruction upon the elements of the offense for which the officer originally sought to detain or arrest the defendant. Rather, the need for instruction is to be adjudicated on a case-by-case basis.
CALJIC NOTE: See FORECITE F 9.20 n1.
F 860 Note 14 Assault On Police Officer: Simple Assault Or ADW As LIO
Simple assault (PC 240) and/or ADW (PC 245) are lesser included offenses of assault with a deadly weapon upon a police officer (PC 245(c), PC 245(d), PC 245.2, PC 245.3, PC 245.5(a), PC 245.5(b)) and of assault with an assault weapon upon a police officer (PC 245(d)(2), PC 245(d)(3).) [See Opinion Bank # O-199 for an unpublished opinion addressing this issue (People v. Foth (C017387).]
CALJIC NOTE: See FORECITE F 9.20 n3.
F 860 Note 15 Transferred Intent Not Applicable To Assault
“Under Colantuono [People v. Colantuono (1994) 7 C4th 206] and Rocha [People v. Rocha (1971) 3 C3d 893], 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 (1994) 28 CA4th 1724.)
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.)
CALJIC NOTE: See FORECITE F 9.00 n5.
F 860 Note 16 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 (1994) 7 C4th 206, 213, fn 3; see also People v. Whitfield (1994) 7 C4th 437, 451; 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.]
CALJIC NOTE: See FORECITE F 9.00 n2.