SERIES 900 ASSAULTIVE AND BATTERY CRIMES
F 960 Simple Battery (PC 242)
TABLE OF CONTENTS
F 960.1 Titles And Identification Of Parties
F 960.1 Inst 1 Simple Battery—Title
F 960.1 Inst 2 Identification Of Prosecution And Defendant
F 960.2 Simple Battery—Tailoring To Facts: Persons, Places, Things And Theories
F 960.2 Inst 1 Tailor To Facts: Person Defended
F 960.2 Inst 2 Tailor To Facts: Theory Of Touching
F 960.3 Simple Battery—Language That Is Argumentative, Confusing, Etc.
F 960.3 Inst 1 Definition Of Harmful Or Offensive Touching: Deletion Of Argumentative Language
F 960.3 Inst 2 Consideration Of Whether Or Not Actual Injury Or Pain Occurred
F 960.3 Inst 3 Willfully: Argumentative
F 960.3 Inst 4 Willfully: Balance
F 960.3 Inst 5 Deletion Of Argumentative And Duplicative Language
F 960.4 Simple Battery—Burden Of Proof Issues
F 960.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 960.5 Simple Battery—Elements And Definitions
F 960.5 Inst 1 Separate Enumeration Of Multiple Compound Elements
F 960.5 Inst 2 Reasonable Discipline Of Child
F 960.5 Inst 3 Rude Or Angry Touching As Element Of The Charge
F 960.5 Inst 4 Assault: Recklessness Insufficient
F 960.5 Inst 5 Concurrence Of Act And Intent
F 960.5 Inst 6 Touching Insufficient Without Other Requisite Elements
F 960.6 Simple Battery—Defense Theories
F 960.6 Inst 1 Defense Theory Of Consent
F 960.6 Inst 2 Defense Theory Of Honest And Reasonable Belief In Consent
F 960.7 Simple Battery—Preliminary Fact Issues [Reserved]
F 960.8 Simple Battery—Unanimity/Duplicity/Multiplicity [Reserved]
F 960.9 Simple Battery—Lesser Offense Issues [Reserved]
F 960 NOTES
F 960 Note 1 Simple Battery: Notes
Return to Series 900 Table of Contents.
F 960.1 Titles And Identification Of Parties
F 960.1 Inst 1 Simple Battery—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 960.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 960.2 Simple Battery—Tailoring To Facts: Persons, Places, Things And Theories
F 960.2 Inst 1 Tailor To Facts: Person Defended
*Modify CC 960, Element 2, as follows:
[Replace “someone else” with “_______________ <name of person defended>“]
Points and Authorities
See FORECITE F 400.2 Inst 1.
F 960.2 Inst 2 Tailor To Facts: Theory Of Touching
*Modify CC 960 by incorporating Element 5 into Element 1, as follows [added language is underlined; deleted language is stricken]:
[Direct Touching Theory]:
1. The defendant willfully [and unlawfully] touched _________ <insert name> in a harmful or offensive manner(;/.) directly;
AND
[Indirect Touching Theory]:
1. The defendant willfully [and unlawfully] touched _________ <insert name> in a harmful or offensive manner(;/.) indirectly by causing _______________ <specify/describe object>/_______________ <name of person defendant allegedly caused to touch the alleged victim>;
AND
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Tailoring To Facts: Prosecution Theory—See FORECITE F 400.2 Inst 1.
Willfully And Unlawfully Separately Enumerated—Willfully and unlawfully have been deleted from the proposed instruction because they should be separately enumerated. (See FORECITE F 840.5 Inst 3.)
Use Of The Term “Defendant”—The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
FORECITE CG 6.2 [Notice: Charging Document]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 960.3 Simple Battery—Language That Is Argumentative, Confusing, Etc.
F 960.3 Inst 1 Definition Of Harmful Or Offensive Touching: Deletion Of Argumentative Language
See FORECITE F 860.3 Inst 1.
F 960.3 Inst 2 Consideration Of Whether Or Not Actual Injury Or Pain Occurred
See FORECITE F 945.3 Inst 3.
F 960.3 Inst 3 Willfully: Argumentative
See FORECITE F 945.3 Inst 4.
F 960.3 Inst 4 Willfully: Balance
See FORECITE F 945.3 Inst 5.
F 960.3 Inst 5 Deletion Of Argumentative And Duplicative Language
*Modify CC 960, paragraph 6, as follows [deleted language is stricken]:
[It is no defense to this crime that the defendant was responding to a provocative act that was not a threat or an attempt to inflict physical injury.] [Words alone, no matter how offensive or exasperating, are not an excuse for this crime.]
Points and Authorities
See FORECITE F 416.3 Inst 4.
STRATEGY NOTE AND CAVEAT—Objection to specific instruction on matters which the prosecution does not have to prove may open the door, in the judge’s view, to prosecutorial objection to specific evidence instructions on matters which are not alone sufficient to prove guilt. (See listing of such instructions at FORECITE PG XI(D)(2).) Although the considerations should be different due to the presumptions of innocence (see e.g., FORECITE F 100.1 Inst 1), the judge may not see it this way. In this light, an alternative approach could be a request that the instruction be balanced and clarified to assure the jurors do consider the specified matter in determining whether the prosecution has proven all essential facts and elements of the charged offense. (See FORECITE F 960.3 Inst 6.)
Additionally, if the judge rejects a defense request to delete or balance argumentative language that favors the prosecution, this may provide a basis for requesting argumentative language favoring the defendant in another instruction. [See generally FORECITE F 416.3 Inst 4.]
F 960.3 Inst 6 (a & b) Argumentative Language Should Be Balanced To Assure Jurors Consider All Relevant Evidence
*Add after CC 960, paragraph 6:
Alternative a [fact not disputed]:
However, the fact that the defendant was responding to a provocative act, even if not a threat or attempt to inflict physical injury, is a circumstance to consider in evaluating whether the prosecution has proven [all the elements of the alleged ____________] [_____________<insert specific element to which the evidence relates>.
Alternative b [fact disputed]:
However, whether or not the defendant was responding to a provocative act, even if not a threat or attempt to inflict physical injury, is a circumstance to consider in evaluating whether the prosecution has proven [all the elements of the alleged _______________] [________________<insert specific element to which the evidence relates>.
Points and Authorities
See FORECITE F 416.3 Inst 7.
F 960.4 Simple Battery—Burden Of Proof Issues
F 960.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 960.5 Simple Battery—Elements And Definitions
F 960.5 Inst 1 Separate Enumeration Of Multiple Compound Elements
*Modify CC 960, Element 1 [added language is underlined; deleted language is stricken]:
1. The defendant willfully [and unlawfully] touched ________ <insert name> in a harmful or offensive manner(;/.)
AND
2. The defendant did so in a harmful or offensive manner;
AND
3. The defendant did so willfully;
AND
4. The defendant did so unlawfully;
AND
[Renumber remaining Elements.]
Points and Authorities
See FORECITE F 840.5 Inst 3; F 3500.2 Inst 1.
F 960.5 Inst 2 Reasonable Discipline Of Child
*Add to CC 960:
When deciding, if you can, whether the prosecution has proved that the defendant was not reasonably disciplining his or her child consider all the circumstances as they were know by or appeared to the defendant. Also, consider what conduct would appear to be necessary to a reasonable person in the same situation as the defendant.
Points and Authorities
See FORECITE F 820.5 Inst 3; see also CALCRIM 505, paragraph 3; CC 851 paragraph 4.
F 960.5 Inst 3 Rude Or Angry Touching As Element Of The Charge
See FORECITE F 860.5 Inst 10.
F 960.5 Inst 4 Assault: Recklessness Insufficient
See FORECITE F 860.5 Inst 12.
F 960.5 Inst 5 Concurrence Of Act And Intent
*Modify CC 960, Element 2 [added language is underlined; deleted language is stricken]:
2. The defendant did not act touch _______________ <name of alleged victim>(in self-defense/ [or] in defense of someone else/ [or] while reasonably disciplining a child).]
Points and Authorities
See FORECITE F 251 Inst 3.
F 960.5 Inst 6 Touching Insufficient Without Other Requisite Elements
*Delete or modify CC 960, paragraph 4, sentence 1, as follows [added language is underlined]:
The slightest touching can be enough to commit a battery if it is done in a rude or angry way provided the touching and all other required elements of the crime have been proved beyond a reasonable doubt.
*Delete or modify CC 960, paragraph 4, sentence 2, as follows
Making contact with another person, including through his or her clothing, is enough provided the contact and all the other required elements of the crime have been proved beyond a reasonable doubt.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency—CALCRIM 960, paragraph 4, literally states that a battery may be found based solely on a touching or contact. This is erroneous because all other elements of battery must also be proved such as the offensive nature of the touching, the criminal intent of the defendant and the victim’s lack of consent. (See generally FORECITE F 960.)
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 960.6 Simple Battery—Defense Theories
F 960.6 Inst 1 Defense Theory Of Consent
See FORECITE F 935.4 Inst 2.
F 960.6 Inst 2 Defense Theory Of Honest And Reasonable Belief In Consent
See FORECITE F 925.6 Inst 1.
F 960.7 Simple Battery—Preliminary Fact Issues[Reserved]
F 960.8 Simple Battery—Unanimity/Duplicity/Multiplicity[Reserved]
F 960.9 Simple Battery—Lesser Offense Issues[Reserved]
F 960 NOTES
F 960 Note 1 Simple Battery: Notes
See FORECITE F 925 Notes.
