CALCRIM No. 861

Less Lethal Weapon (Pen. Code, §§ 240, 244.5(c))

The defendant is charged [in Count] with assault with a (stun

gun/ [or] less lethal weapon) on a (firefighter/peace officer) [in violation

of Penal Code section 244.5(c)].

To prove that the defendant is guilty of this crime, the People must

prove that:

1. The defendant did an act with a (stun gun/[or] less lethal weapon)

that by its nature would directly and probably result in the

application of force to a person;

2. The defendant did that act willfully;

3. When the defendant acted, (he/she) 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 application of force to

someone;

4. When the defendant acted, (he/she) had the present ability to

apply force with a (stun gun/[or] less lethal weapon) to a person;

5. When the defendant acted, the person assaulted was lawfully

performing (his/her) duties as a (firefighter/peace officer);

[AND]

6. When the defendant acted, (he/she) knew, or reasonably should

have known, that the person assaulted was a (firefighter/peace

officer) who was performing (his/her) duties(;/.)

<Give element 7 when instructing on self-defense or defense of another .>

[AND

7. The defendant did not act (in self-defense/ [or] in defense of

someone else).]

[A stun gun is anything, except a less lethal weapon, that is used or

intended to be used as either an offensive or defensive weapon and is

capable of temporarily immobilizing someone by inflicting an electrical

charge.]

[A is a less lethal weapon.]

[is less lethal ammunition.]

[A less lethal weapon is any device that is either designed to or that has

been converted to expel or propel less lethal ammunition by any action,

mechanism, or process for the purpose of incapacitating, immobilizing,

or stunning a human being through the infliction of any less than lethal

impairment of physical condition, function, or senses, including physical

pain or discomfort. It is not necessary that the weapon leave any lasting

or permanent incapacitation, discomfort, pain, or other injury or

disability in order to qualify as a less lethal weapon.]

[Less lethal ammunition is any ammunition that is designed to be used in

any less lethal weapon or any other kind of weapon, including, but not

limited to, firearms, pistols, revolvers, shotguns, rifles, and spring,

compressed air, and compressed gas weapons. When used in a less lethal

weapon or other weapon, less lethal ammunition is designed to

immobilize or incapacitate or stun a human being by inflicting less than

lethal impairment of physical condition, function, or senses, including

physical pain or discomfort.]

Someone commits an act willfully when he or she does it willingly or on

purpose. It is not required that he or she intend to break the law, hurt

someone else, or gain any advantage.

The terms application of force and apply force mean to touch in a

harmful or offensive manner. The slightest touching can be enough if it

is done in a rude or angry way. Making contact with another person,

including through his or her clothing, is enough. The touching does not

have to cause pain or injury of any kind.

[The touching can be done indirectly (by causing an object [or someone

else] to touch the other person/ [or] by touching something held by or

attached to the other person).]

[The People are not required to prove that the defendant actually

touched someone.]

The People are not required to prove that the defendant actually

intended to use force against someone when (he/she) acted.

No one needs to actually have been injured by the defendant’s act. But if

someone was injured, you may consider that fact, along with all the

other evidence, in deciding whether the defendant committed an assault[,

and if so, what kind of assault it was].

[Voluntary intoxication is not a defense to assault.]

[A person who is employed as a police officer by <insert

name of agency that employs police offıcer> is a peace officer.]

[A person employed by <insert name of agency that employs

peace offıcer , e.g., “the Department of Fish and Wildlife”> is a peace officer

if <insert description of facts necessary to make employee a

peace offıcer , e.g., “designated by the director of the agency as a peace

offıcer”> .]

CALCRIM No. 861 ASSAULTIVE AND BATTERY CRIMES

[The duties of a <insert title of offıcer> include

<insert job duties>.]

[A firefighter includes anyone who is an officer, employee, or member of

a (governmentally operated (fire department/fire protection or

firefighting agency) in this state/federal fire department/federal fire

protection or firefighting agency), whether or not he or she is paid for his

or her services.]

New January 2006; Revised August 2009, April 2011, February 2012, February