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VOLUME 7 - CHAPTER 77
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77.3 Aggravated Assault (Assault With A Deadly Weapon, Etc.)

    77.3.2 Aggravated Assault: Miscellaneous Issues

    77.3.2.1 Assault: Footwear May Be Deadly Weapon Depending On Manner Of Use
    77.3.2.2 Assault With A Deadly Weapon Or By Means Of Force Likely To Produce Great Bodily Injury Or With Firearm
    77.3.2.3 Assault With Semi-Automatic Firearm, Machine Gun, Or Assault Weapon [Reserved]
    77.3.2.4 Assault With Semi-Automatic Firearm, Machine Gun, Or Assault Weapon On Peace Officer, Etc. [Reserved]
    77.3.2.5 Assault With Intent To Commit Specified Offenses (Mayhem, Rape, Sodomy, Oral Copulation)
    77.3.2.6 Sexual Intercourse By HIV Carrier As Aggravated Assault: Transmission Of HIV Must Be Likely

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    77.3.2.1    Assault: Footwear May Be Deadly Weapon Depending On Manner Of Use

RATIONALE: Regardless of whether bare feet can be a deadly weapon, footwear may make the feet a deadly weapon and the jury should be instructed as to how to make this distinction.

POINTS AND AUTHORITIES: It has been recognized that some footwear, such as hob-nailed or steel-toed boots, may constitute deadly weapons. (People v. Aguilar (CA 1997) 16 C4th 1023, 1034 [68 CR2d 655]; see also State v. Huston (ID 1992) 828 P2d 301, 303 [boot can be deadly weapon].) 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. (Aguilar, 16 C4th at 1034.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 3.5; 4.1].

PRACTICE NOTE: Lay jurors may believe that bare feet alone can be a deadly weapon. Hence, in jurisdictions which hold that bare feet cannot be a deadly weapon (see FORECITE National™ 77.3.3.1 [Assault With Deadly Weapon: Defense Theory That Bare Hands Or Feet Are Not Deadly Weapons]) the jury must be instructed so as to preclude reliance upon such an assumption.

RESEARCH NOTES:

Annotation, Kicking As Aggravated Assault, Or Assault With Dangerous Or Deadly Weapon, 19 ALR5th 823.

RELATED FEDERAL MODEL INSTRUCTIONS:

See generally, FORECITE National™ 77.3.1.2 [Aggravated Assault:  Federal Circuit Model Instructions And Notes].

SAMPLE INSTRUCTION # 1:

    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.

SAMPLE INSTRUCTION # 2:

    Hands, fists, and shoe-clad feet are not necessarily or per se deadly weapons, but may or may not be deadly weapons depending upon the circumstances of the case including the manner in which the hands, fists and feet were used, the size and weight of the articles or instrumentality used, and the extent of the injuries to the person attacked.

[See Chafin v. State (GA 1980) 267 SE2d 625, 626.]

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VOLUME 7 - CHAPTER 77

    77.3.2.2    Assault With A Deadly Weapon Or By Means Of Force Likely To Produce Great Bodily Injury Or With Firearm

    See FORECITE National™ 77.3 [Aggravated Assault (Assault With A Deadly Weapon, Etc.)].

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    77.3.2.3    Assault With Semi-Automatic Firearm, Machine Gun, Or Assault Weapon [Reserved]

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    77.3.2.4    Assault With Semi-Automatic Firearm, Machine Gun, Or Assault Weapon On Peace Officer, Etc. [Reserved]

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    77.3.2.5    Assault With Intent To Commit Specified Offenses (Mayhem, Rape, Sodomy, Oral Copulation)

    See FORECITE National™ 252.7.8 [Assault With Intent To Commit Rape Or Other Sex Crime: Good Faith Belief In Consent As Defense Theory].

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    77.3.2.6    Sexual Intercourse By HIV Carrier As Aggravated Assault: Transmission Of HIV Must Be Likely

PRACTICE NOTE: Guevara v. Superior Court (CA 1998) 62 CA4th 864 [73 CR2d 421] held that an assault is aggravated if committed by an HIV-positive individual who has unprotected consensual sexual intercourse with another person without disclosing the fact that the individual is HIV positive. However, there must be evidence that such unprotected sex is likely to result in the transmission of HIV. (Guevara v. Superior Court, 62 CA4th at 369.)