CALCRIM 875 - Interpretation

In People v. Flores (2007) 157 Cal.App.4th 216, the defendant argued that CALCRIM 875 was duplicative and argumentative in favor of the prosecution. The court disagreed, reasoning as follows: "An argumentative instruction 'invites the jury to draw inferences favorable to a party from specified items of evidence on a disputed question of fact, and therefore properly belongs . . . in the arguments of counsel to the jury.' (People v. Wright (1988) 45 Cal.3d 1126, 1135 248 Cal.Rptr. 600, 755 P.2d 1049.) Defendant complains CALCRIM No. 875's latter part informs the jury the prosecution need not 'prove . . . he actually intended to use force against someone' or 'touched someone,' or that anyone 'needs to . . . have been injured by his act.' But it is undisputed defendant did not strike anyone when he fired the gun. Also, because assault requires only that the perpetrator act 'willfully,' i.e., with 'a purpose or willingness to commit the act' without 'any intent to . . . injure another' (Pen. Code, 7, subd. 1), it was appropriate to advise the jury the prosecution need not prove defendant harbored an intent to use force against another. Thus, 'the subject instruction did not specify items of evidence, identify witnesses citation, or in any way favor the prosecution over the defense.' Finally, the latter portion of CALCRIM No. 875 did not merely repeat the instruction's first part. Felony assault requires proof the perpetrator committed 'an act . . . that by its nature would directly and probably result in the application of force to a person' (CALCRIM 875), and that 'a defendant . . . be aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct.' But because Penal Code 245 'focuses on use of an . . . instrument . . . , whether the victim in fact suffers any harm is immaterial' Thus, to avoid any possible juror confusion, it was appropriate for the instruction to clarify that proof of an actual touching, injury, or intent to injure was not essential to support a conviction of this offense." (People v. Flores, supra, 157 Cal.App.4th at pp. 220-221.)