Return to CALJIC Part 3-4 – Contents
F 4.80 n1 Parent’s Right To Discipline Child: Definition Of “Force And Violence.”
In cases where the defense of reasonable and necessary discipline is utilized, it may also be necessary to modify CJ 16.141 which defines “force and violence” to eliminate any inconsistency between CJ 16.141 and the parent’s right to discipline. (See People v. Whitehurst (92) 9 CA4th 1045, 1051 [12 CR2d 33].)
RESEARCH NOTES: See Annotation, Criminal liability for excessive or improper punishment inflicted on child by parent, teacher, or one in loco parentis, 89 ALR2d 396 and Later Case Service.
F 4.80 n2 Parents’ Right To Discipline Child: Jury Must Make Determination Of Objective Reasonableness.
According to Attorney General Opinion No. 97-416 (80 Cal. Opns. Atty. Gen. 203 (7/21/97 [No. 97-416]) the reasonableness of a parent’s discipline under PC 273d is a question of fact to be determined under an objective standard by the jury in light of all the individual circumstances. CJ 4.80 includes reference to whether the corporal punishment was “reasonably necessary under the circumstances” but fails to inform the jury that this determination must be made based upon an objective standard. Presumably such a standard would require the jury to determine whether a “reasonable parent” in like circumstances would have found the punishment to be justified. (See e.g., FORECITE F 4.35b.)
F 4.80 n3 Improper To Refer To The Prosecution as “The People.”
Reference to the prosecution as “The People” may implicate the defendant’s state and federal constitutional rights to due process and fair trial by jury. (See FORECITE F 0.50d.) Any reference to “The People” should be changed to “The Prosecution.”
Parent’s Right To Discipline Child: Consideration Of The Circumstances
*Modify 3rd ¶ of CJ 4.80 as follows. [Added language is capitalized:]
If you find that the use of force was EITHER not reasonably necessary or was excessive, UNDER THE CIRCUMSTANCES, you must determine what crime, if any, was committed in light of the other instructions.
Points and Authorities
The second paragraph and first sentence of the third paragraph both contain the “under the circumstances” language. Therefore, the last sentence should also contain the same language.
Parent’s Right To Discipline Child: Reasonable Physical Force
*Add to CJ 4.80 as follows:
The caretaker of a minor child has the right and duty under the law to exercise reasonable care, supervision, protection and control of the child. In fulfilling these rights and duties, a parent may lawfully use reasonable physical force upon a child. The use of such force is not unlawful, and is neither an assault nor a battery.
The defendant contends that [he] [she] used physical force upon the child which [he] [she] reasonably and in good faith believed, under the circumstances, was [permissible] [necessary] [lawful] [justifiable] within [his] [her] legally mandated duty and right to care for the child.
The prosecution has the burden of proving that a reasonable person in the defendant’s position would not have believed that the force used by defendant was within [his] [her] right and duty to care for the child. This requires you to consider all of the facts and circumstances which the defendant knew, or reasonably should have known, at the time of the alleged criminal act.
If you have a reasonable doubt whether a reasonable person in the defendant’s position would have believed the force used was within [his] [her] right and duty to care for the child, you must resolve that doubt in favor of the defendant and find that [his] [her] conduct was not unlawful.
Points and Authorities
It is established that a parent has both the right (see People v. Whitehurst (92) 9 CA4th 1045, 1050 [12 CR2d 33]) and duty to “exercise reasonable care, supervision, protection and control over their minor child (PC 272) and to affirmatively prevent their child from being “placed in a situation where [the] person or health [of the child] is endangered …” (PC 273a; see also Fluharty v. Fluharty (97) 59 CA4th 484, 495 [69 CR2d 244] [the law imposes on a parent a duty to support and care for his child …”]; 64 Ops.Cal.Atty.Gen. 373 (1981) [recognizing constitutional underpinnings of right and duty to care for child provided parental decisions do not jeopardize health or safety of child].) Hence, a parent does not commit an unlawful assault or battery by using justifiable (i.e., necessary) physical force which is intended to fulfill the parental rights and duty of care. (Whitehurst, supra, 9 CA4th at 1050.) It follows, a fortiori, that when a parent may lawfully use non-punitive physical force upon a child which is reasonably believed to be within the parent’s right and duty to care for, protect or control the child, but which actually harms the child, no crime is committed. (See e.g., People v. Mayberry (75) 15 C3d 143, 153-58 [125 CR 745] [belief in consent]; People v. Lucero (88) 203 CA3d 1011, 1015-18 [250 CR 354] [belief in immunity as police agent]; People v. Hernandez (64) 61 C2d 529, 535 [39 CR 361] [belief that statutory rape victim was 18 years old]; People v. Hendricks (88) 44 C3d 635, 642 [244 CR 181] [belief in claim of right to property taken].)
The test for reasonableness in such circumstances is objective (see People v. Navarro (79) 99 CA3d Supp 1, 10-11 [160 CR 692] and, therefore, requires consideration of whether a reasonable person in the defendant’s position would have had the same belief. (See, generally People v. Ochoa (93) 6 C4th 1199, 1205 [26 CR2d 23]; see also People v. Humphrey (96) 13 C4th 1073, 1083 [56 CR2d 142].)
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).]
Parent’s Right To Discipline Child:
Factors To Consider As To Whether Force Was Excessive or Unreasonable
*Add to CJ 4.80:
In determining whether force is excessive or unreasonable, you should consider the child’s age, physical condition, emotional maturity, intelligence level, ability to understand and correct his or her offending behavior, and the gravity of the misbehavior.
Points and Authorities
The acceptable limit of a parent’s right to administer corporal punishment cannot be defined with a bright-line rule or a precise definition. “The difficulty in defining a bright-line rules stems from the unique set of circumstances present in each individual case. A finding that a certain amount of force is either excessive or unreasonable will vary depending upon the circumstances of the particular case.” (In re Jandrew (1997 Ohio App. Lexis 5999) [setting forth the above factors for the court to consider].)