SERIES 900 ASSAULTIVE AND BATTERY CRIMES
F 945 NOTES
TABLE OF CONTENTS
F 945 Note 1 Battery Against Peace Officer—CALCRIM Cross-References And Research Notes
F 945 Note 2 Battery On Custodial Officer: Juvenile Probation Counselor
F 945 Note 3 Battery On Custodial Officer: No Equal Protection Violation Even Though Battery Without Injury Is Punished More Severely Than Battery With Injury
F 945 Note 4 Defendant’s Use Of “Excessive Force” In Response To Officer’s “Excessive Force”
Return to Series 900 Table of Contents.
F 945 Note 1 Battery Against Peace Officer—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
CALCRIM 946 [Battery Against Custodial Officer]
CALCRIM 947 [Simple Battery On Military Personnel]
CALCRIM 948 [Battery Against Transportation Personnel Or Passenger]
CALCRIM 949 [Battery Against School Employee]
CALCRIM 950 [Battery Against A Juror]
CALCRIM 951 [Battery Committed On School, Park, Or Hospital Property]
Research Notes:
See CLARAWEB Forum, Assaultive And Battery Crimes—Series 800-900.
F 945 Note 2 Battery On Custodial Officer: Juvenile Probation Counselor
PC 243.1 proscribes batteries on custodial officers per PC 831 which specifies that custodial officers are public officers, not peace officers, employed to maintain custody of prisoners in a local detention facility. However, the history of PC 831 is limited to public officers responsible for maintaining custody of adult prisoners in jail, not juveniles. In re Rochelle B. (1996) 49 CA4th 1212 held that PC 243.1 was not intended to apply to batteries on juvenile probation counselors who are not custodial officers under the meaning of PC 831 because juvenile detainees are not “prisoners.”
CALJIC NOTE: See FORECITE F 9.22 n3.
F 945 Note 3 Battery On Custodial Officer: No Equal Protection Violation Even Though Battery Without Injury Is Punished More Severely Than Battery With Injury
People v. Wilkinson (2004) 33 C4th 821, held that the statutory scheme pertaining to battery on a custodial officer does not violate equal protection principles even though PC 243.1 allows battery on a custodial officer without injury to be punished more severely than battery on a custodial officer with injury (PC 243.1(c)(1).)
NOTE: The lesser included analysis of the Wilkinson majority is analytically suspect for in two respects. First, it failed to apply the required elements test. (See People v. Lohbauer (1981) 29 C3d 364, 369 [to be “necessarily included” the lesser offense must be within the statutory definition of the charged offense]; People v. Lopez (1998) 19 C4th 282, 288; People v. Schueren (1973) 10 C3d 553, 561; see also Schmuck v. U.S. (1989) 489 US 705, 715 [109 SCt 1443; 103 LEd2d 734] [stated federal elements test for lesser included offenses]; Carter v. U.S. (2000) 530 US 255, 260-61 [120 SCt 2159;147 LEd2d 203] [lesser-included defined as “subset” of charged offense].) Instead, the Wilkinson majority concluded that there is no greater-lesser relation if more severe scenarios in one crime (normally viewed as the lesser) could possibly be more serious than less severe scenarios in the other crime (the one normally viewed as the greater). Second, Wilkinson’s conclusion that a greater-lesser relationship doesn’t exist based on minimum punishments if the maximum punishments are the same, is also analytically suspect.
CALJIC NOTE: See FORECITE F 9.22 n6.
F 945 Note 4 Defendant’s Use Of “Excessive Force” In Response To Officer’s “Excessive Force”
If the defendant responds with “excessive force” to the arresting officer’s “excessive force” then the defendant may only be convicted of simple battery under PC 242(a) or a lesser included of that offense. (See People v. White (1980) 101 CA3d 161, 166-69; see also CJ 9.28, Comment.)
