Return to CALJIC Part 9-12 – Contents
F 9.08a
Assault With Deadly Weapon:
Bare Hands Or Feet Are Not Deadly Weapons
(PC 245(a))
*Add to CJ 9.08 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
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 (97) 16 C4th 1023, 1034 [68 CR2d 655]; cf. People v. Azor (98) 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 [130 CR2d 717] [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.)
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 or failure to adequately instruct upon a defense or defense theory violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See generally, FORECITE PG VII(C).]
F 9.08b
Assault With Feet: Footwear As Deadly Weapon
*Add to CJ 9.08 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
In People v. Aguilar (97) 16 C4th 1023 [68 CR2d 655] 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.)
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 or failure to adequately instruct upon a defense or defense theory violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See generally, FORECITE PG VII(C).]
NOTE: 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.
F 9.08c
Assault With Hands Or Fists: Clarification Of The Burden
*Modify CJ 9.08a as follows [Added language is capitalized; deleted language is between << >>]:
As assault by means of force likely to produce great bodily injury may be committed with the hands or fists. <<Proof of>> Such an assault need not <<show that the defendant actually injured the other person>> CAUSE ACTUAL INJURY. However, there must be proof BEYOND A REASONABLE DOUBT that the manner of the assault was likely to produce great bodily injury upon another person.
Points and Authorities
Use of the term “proof” in CJ 9.08 may mislead the jury because it fails to specifically require that the necessary finding must be actually proven under the required standard, i.e., beyond a reasonable doubt. The term “proof” can be used as a synonym for the generic term “evidence” which does not necessarily encompass the requirement of actually proving the fact. In other words, the prosecution may present proof (or evidence) of a fact which falls short of actually proving the fact. Nor does the general burden of proof instruction (CJ 2.90) cure the error. (See People v. Adrian (82) 135 CA3d 335, 342 [185 CR 506]; see also PG X(C)(3.1) [failure to state burden as to specific issue not cured by general burden of proof instruction].) Moreover, the defendant should not be required to rely on inference from other instructions on a matter as crucial as the prosecution’s burden of proof when the point can easily be clarified by simple modifications of the specific instruction at issue. (See also EC 502 [burden must be allocated as to every issue].)
