SERIES 800 ASSAULTIVE AND BATTERY CRIMES
F 840 NOTES
TABLE OF CONTENTS
F 840 Note 1 Inflicting Injury On Spouse, Cohabitant, Or Fellow Parent Resulting In Traumatic Condition: CALCRIM Cross-References And Research Notes
F 840 Note 2 Spouse Or Cohabitant Beating: Family Code Presumptions Do Not Apply
F 840 Note 3 Spouse Or Cohabitant Beating: Attempt Does Not Require Intent To Inflict “Traumatic Condition”
F 840 Note 4 Spouse Or Cohabitant Beating: Biological Father Liable For Battering Mother Even If Parental Rights Were Terminated
F 840 Note 5 Assault On Mother Of Defendant’s Child Not Applicable To Unborn Child (PC 273.5)
F 840 Note 6 Spouse Or Cohabitant Beating: General Intent Crime (PC 273.5)
F 840 Note 7 Spouse Or Cohabitant Beating: Specific Intent Instruction Required When PC 273.5 Is Charged
Return to Series 800 Table of Contents.
F 840 Note 1 Inflicting Injury On Spouse, Cohabitant, Or Fellow Parent Resulting In Traumatic Condition:CALCRIM Cross-References And Research Notes
CALCRIM Cross References:
CALCRIM 841 [Simple Battery: Against Spouse, Cohabitant, Or Fellow Parent (PC 243(e)(1))]
Research Notes:
See CLARAWEB Forum, Assaultive And Battery Crimes—Series 800-900.
F 840 Note 2 Spouse Or Cohabitant Beating: Family Code Presumptions Do Not Apply
In People v. Vega (1995) 33 CA4th 706, 709, the court held that the Family Code presumptions do not apply to the question of whether the victim was the mother of the defendant’s child within the meaning of PC 273.5.
However, CALCRIM 840, unlike CJ 9.35, includes a definition of mother and father predicated on the presumption of fatherhood “under the law.” It may be possible to challenge the validity of this presumption (per Family Code 7540 and 7541, and Division 12 of that code) as an unconstitutional shifting or lessening of the prosecution’s burden of proof. (See FORECITE F 100.1 Inst 1; see also FORECITE CG 2.2.)
CALJIC NOTE: See FORECITE F 9.35 n1.
F 840 Note 3 Spouse Or Cohabitant Beating: Attempt Does Not Require Intent To Inflict “Traumatic Condition”
In an attempted violation of PC 273.5, the requisite intent is to inflict bodily injury resulting in a traumatic condition. It is not necessary that there be an intent to cause a traumatic condition. (People v. Kinsey (1995) 40 CA4th 1621, 1628-29.)
CALJIC NOTE: See FORECITE F 9.35 n2.
F 840 Note 4 Spouse Or Cohabitant Beating: Biological Father Liable For Battering Mother Even If Parental Rights Were Terminated
Per PC 273.5, a biological father may lawfully be convicted of battering the mother of his child even though parental rights to that child were terminated before the battering occurred. (People v. Mora (1996) 51 CA4th 1349.)
CALJIC NOTE: See FORECITE F 9.35 n3.
F 840 Note 5 Assault On Mother Of Defendant’s Child Not Applicable To Unborn Child (PC 273.5)
PC 273.5 does not apply to prospective parents of unborn children. (People v. Ward (1998) 62 CA4th 122.) The 1988 amendments to PC 273.5 protect those “persons whose past intimate relations resulted in the birth of a child.” (People v. Mora (1996) 51 CA4th 1349, 1355.) A pregnant woman is not a “mother” and a fetus is not a “child” as those terms are used in that section. (Ward, 62 CA4th at 129.)
CALJIC NOTE: See FORECITE F 9.35 n5.
F 840 Note 6 Spouse Or Cohabitant Beating: General Intent Crime (PC 273.5)
PC 273.5(a) is a general intent crime. (People v. Thurston (1999) 71 CA4th 1050, 1056.)
CALJIC NOTE: See FORECITE F 9.35 n7.
F 840 Note 7 Spouse Or Cohabitant Beating: Specific Intent Instruction Required When PC 273.5 Is Charged
See Brief Bank # B-952 for briefing on this issue.
CALJIC NOTE: See FORECITE F 9.35 n8.
