SERIES 900 ASSAULTIVE AND BATTERY CRIMES
F 945 Battery Against Peace Officer (PC 242, PC 243(b), (c)(2))
TABLE OF CONTENTS
F 945.1 Titles And Identification Of Parties
F 945.1 Inst 1 Battery Against Peace Officer—Title
F 945.1 Inst 2 Identification Of Prosecution And Defendant
F 945.2 Battery Against Peace Officer—Tailoring To Facts: Persons, Places, Things And Theories [Reserved]
F 945.3 Battery Against Peace Officer—Language That Is Argumentative, Confusing, Etc.
F 945.3 Inst 1 Whether Officer Was Actually On Duty: Delete Argumentative Language
F 945.3 Inst 2 (a & b) Argumentative Language Should Be Balanced To Assure Jurors Consider All Relevant Evidence
F 945.3 Inst 3 Definition Of Harmful Or Offensive Touching: Deletion Of Argumentative Language
F 945.3 Inst 4 Consideration Of Whether Or Not Actual Injury Or Pain Occurred
F 945.3 Inst 5 Willfully: Argumentative
F 945.3 Inst 6 Willfully: Balance
F 945.4 Battery Against Peace Officer—Burden Of Proof Issues
F 945.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 945.4 Inst 2 (a & b) Officer’s Performance Of Duty: Modification Of Burden Shifting Language
F 945.5 Battery Against Peace Officer—Elements And Definitions
F 945.5 Inst 1 Separate Enumeration: Peace Officer And Performing Duties
F 945.5 Inst 2 Separate Enumeration Of Willfully And Unlawfully Elements
F 945.5 Inst 3 Concurrence Of Act And Intent
F 945.5 Inst 4 Reasonably Should Have Known Standard: Objective Reasonableness
F 945.5 Inst 5 (a & b) Defendant’s Knowledge Of Consequences: Consideration Only Of Circumstances Known To Defendant When The Act Was Committed
F 945.5 Inst 6 Rude Or Angry Touching As Element Of The Charge
F 945.5 Inst 7 Harmful Or Offensive Touching Should Be Included In The Element Language
F 945.5 Inst 8 (a & b) Assault: Recklessness Insufficient
F 945.5 Inst 9 Incorporation Of Physical Injury Definition Into Enumerated Elements
F 945.6 Battery Against Peace Officer—Defense Theories [Reserved]
F 945.7 Battery Against Peace Officer—Preliminary Fact Issues [Reserved]
F 945.8 Battery Against Peace Officer—Unanimity/Duplicity/Multiplicity [Reserved]
F 945.9 Battery Against Peace Officer—Lesser Offense Issues [Reserved]
Return to Series 900 Table of Contents.
F 945.1 Titles And Identification Of Parties
F 945.1 Inst 1 Battery Against Peace Officer—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 945.1 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 945.2 Battery Against Peace Officer—Tailoring To Facts: Persons, Places, Things And Theories [Reserved]
F 945.3 Battery Against Peace Officer—Language That Is Argumentative, Confusing, Etc.
F 945.3 Inst 1 Whether Officer Was Actually On Duty: Delete Argumentative Language
*Delete CC 945, paragraph 9, which provides:
[It does not matter whether ________ <insert officer’s name, excluding title> was actually on duty at the time.]
Points and Authorities
See FORECITE F 416.3 Inst 4.
F 945.3 Inst 2 (a & b) Argumentative Language Should Be Balanced To Assure Jurors Consider All Relevant Evidence
*Add after CC 945, paragraph 9:
Alternative a [fact not disputed]:
However, the fact that _______________ <insert officer’s name, excluding title> was not on duty at the time 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 _______________ <insert officer’s name, excluding title> was on duty at the time 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 945.3 Inst 3 Definition Of Harmful Or Offensive Touching: Deletion Of Argumentative Language
See FORECITE F 860.3 Inst 1.
F 945.3 Inst 4 Consideration Of Whether Or Not Actual Injury Or Pain Occurred
*Add to CC 945 after paragraph 4:
However, whether or not the alleged victim actually felt pain and/or was injured is a factor to consider, along with all the other evidence, in deciding, if you can, whether the prosecution has proved all elements of the charged crime beyond a reasonable doubt.
Points and Authorities
See FORECITE F 416.3 Inst 7.
F 945.3 Inst 5 Willfully: Argumentative
*Delete CC 945, paragraph 3, sentence 2, which provides:
It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.
Points and Authorities
See FORECITE F 416.3 Inst 4.
F 945.3 Inst 6 Willfully: Balance
*Add to CC 945, paragraph 3 if sentence 2 is not deleted (see FORECITE F 945.3 Inst 4):
However, whether or not the defendant intended to break the law, hurt someone else or gain an advantage are factors to consider, together with all the other evidence, in deciding, if you can, whether the prosecution has proved all elements of the charged crime beyond a reasonable doubt.
Points and Authorities
See FORECITE F 820.3 Inst 2.
F 945.4 Battery Against Peace Officer—Burden Of Proof Issues
F 945.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 945.4 Inst 2 (a & b) Officer’s Performance Of Duty: Modification Of Burden Shifting Language
See FORECITE F 860.4 Inst 2 (a & b).
F 945.5 Battery Against Peace Officer—Elements And Definitions
F 945.5 Inst 1 Separate Enumeration: Peace Officer And Performing Duties
*Modify CC 945, Element 1, as follows [added language is underlined; deleted language is stricken]:
1. _________ <Insert officer’s name, excluding title> was a peace officer performing the duties of (a/an) ________ <insert title of peace officer specified in Pen. Code, §830 et seq.>;
AND
2. _________ <Insert officer’s name, excluding title> was performing the duties of (a/an) ________ <insert title of peace officer specified in Pen. Code, §830 et seq.>;
AND
[Renumber remaining Elements.]
Points and Authorities
See FORECITE F 3500.2 Inst 1.
F 945.5 Inst 2 Separate Enumeration Of Willfully And Unlawfully Elements
*Modify CC 945, Element 2, as follows [added language is underlined; deleted language is stricken]:
2. The defendant willfully [and unlawfully] touched ___________ <insert officer’s name, excluding title> 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 945.5 Inst 3 Concurrence Of Act And Intent
*Modify CC 945, Element 3 and 4, as follows [added language is underlined; deleted language is stricken]:
3. When the defendant acted touched ________ <insert officer’s name, excluding title>, (he/she) knew, or reasonably should have known, that ________ <insert officer’s name, excluding title> was a peace officer who was performing (his/her) duties(;/.)
[AND
4. The defendant did not act touch ________ <insert officer’s name, excluding title>(in self-defense/ [or] in defense of someone else).]
Points and Authorities
See FORECITE F 251 Inst 3.
F 945.5 Inst 4 Reasonably Should Have Known Standard: Objective Reasonableness
See FORECITE F 860.5 Inst 7.
F 945.5 Inst 5 (a & b) Defendant’s Knowledge Of Consequences: Consideration Only Of Circumstances Known To Defendant When The Act Was Committed
See FORECITE F 860.5 Inst 9 (a & b).
F 945.5 Inst 6 Rude Or Angry Touching As Element Of The Charge
See FORECITE F 860.5 Inst 10.
F 945.5 Inst 7 Harmful Or Offensive Touching Should Be Included In The Element Language
See FORECITE F 860.5 Inst 11.
F 945.5 Inst 8 (a & b) Assault: Recklessness Insufficient
See FORECITE F 860.6 Inst 1 (a & b).
F 945.5 Inst 9 Incorporation Of Physical Injury Definition Into Enumerated Elements
A. Modify CC 945, Element 4, as follows [added language is underlined]:
4. _________ <insert officer’s name, excluding title> suffered a physical injury as a result of the touching that required professional medical treatment based on the nature, extent and seriousness of the injury itself(;/.)]
b. Delete 4th paragraph defining “injury.”
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]
Incorporation Of Definition Into Elements – See FORECITE F 417.5 Inst 2; compare CC 925, Element 1; CC 960, Element 1.
Improper To Instruct On Matters Which The Prosecution Does Not Need To Prove – See FORECITE F 416.3 Inst 4.
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 3.5 [Failure To Fully, Clearly and Accurately Instruct On An Element]
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 945.6 Battery Against Peace Officer—Defense Theories[Reserved]
F 945.7 Battery Against Peace Officer—Preliminary Fact Issues[Reserved]
F 945.8 Battery Against Peace Officer—Unanimity/Duplicity/Multiplicity [Reserved]
F 945.9 Battery Against Peace Officer—Lesser Offense Issues[Reserved]
