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F 16.140 n1 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.”
F 16.140a
When Unintentional Touching Is Battery
(PC 242)
ALERT: People v. Lara (96) 44 CA4th 102 [51 CR2d 402], held that battery requires general criminal intent and cannot be based on criminal negligence.
*Add to CJ 16.140:
An unintentional touching of another person is not a battery unless the prosecution has proven beyond a reasonable doubt that:
1. The defendant committed an act with criminal negligence which resulted in the unlawful touching of another person, and
2. The touching resulted in bodily harm [or] [emotional distress] to the other person.
[Insert modified definition of criminal negligence (see FORECITE F 16.140b).]
Points and Authorities
Criminal Negligence Requirement: An unintentional touching, even if the result of reckless conduct, is not a battery absent commission of “an act inherently dangerous to others … with a conscious disregard of human life and safety ….” (See People v. Martinez (77) 75 CA3d 859, 863 [142 CR 515]; see also People v. Valdez (85) 175 CA3d 103, 107 [220 CR 538]; Perkins on Criminal Law (2nd Ed.), Ch. 2, § 2, Battery, p. 157 [“for battery, as for manslaughter, more is required than ordinary negligence sufficient to support a civil action.”]; see also People v. Sam (69) 71 C2d 194, 212 [77 CR 804].)
In other words, because battery requires that the defendant act “willfully” (CJ 16.140), the defendant must act with “conscious disregard” of the consequences of the act; i.e., “the perpetrator must be aware of the nature of the conduct and chose to ignore its potential for injury, i.e., act willfully.” . (People v. Colantuono (94) 7 C4th 206, 220 [26 CR2d 908].) “Intent includes those consequences which … are known to be substantially certain to result (regardless of desire).” [Emphasis added.] (Perkins on Criminal Law (2nd Ed.), Ch. 7, § 1, p. 747 cited by Colantuono, 7 C4th at 219.) For battery, this requirement is satisfied by proof that the defendant acted with criminal negligence. (See Perkins on Criminal Law, supra at p. 157; see also, LaFave & Scott, Substantive Criminal Law (1986) § 7.15c, pp. 303-04.)
Emotional Distress Requirement: It is settled that the statutory requirement of “force or violence” does not require bodily harm. (People v. Bradbury (07) 151 C 675, 676.) However, it is necessary that “the feelings of [the victim] are injured by the act.” (Ibid; see also People v. Colantuono (94) 7 C4th 206, 214, n 4 [26 CR2d 908].) Hence, when the prosecution is relying upon a touching which did not result in bodily injury, the jury should be required to find that the victim’s feelings were injured; i.e., the victim suffered “emotional distress”. (See FORECITE F 16.141a for definition of “emotional distress” adapted from BAJI 12.72 (1989 Revision).)
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 violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
F 16.140b
Adaption of CJ 3.36 (Criminal Negligence)
For Use In Battery Prosecution
(PC 242)
ALERT: People v. Lara (96) 44 CA4th 102 [51 CR2d 402], held that battery requires general criminal intent and cannot be based on criminal negligence.
*Add to CJ 16.140 [added language is capitalized; deleted language is between <<>>]:
“Criminal negligence” means conduct which is more than ordinary negligence. Ordinary negligence is the failure to exercise ordinary or reasonable care.
“Criminal negligence” refers to [a] negligent act[s] which [is] [are] aggravated, reckless and gross and which [is] [are] such a departure from what would be the conduct of an ordinarily prudent, careful person under the same circumstances as to be contrary to a proper regard for THE RISK THAT AN UNLAWFUL TOUCHING WOULD OCCUR <<[human life] [danger to human life]>> or to constitute indifference to the consequences of such act[s]. The facts must be such that the consequences of the negligent act[s] could reasonably have been foreseen and it must appear that the UNLAWFUL TOUCHING <<[death] [danger to human life]>> was not the result of inattention, mistaken judgment or misadventure but the natural and probable result of an aggravated, reckless AND <<or>> grossly negligent act.
Points and Authorities
CJ 3.36 defines criminal negligence and should be given with the above instruction (FORECITE F 16.140a). (See also, FORECITE F 3.36a.) However, it should be modified as follows to adapt it to a charge of battery which (1) applies to non-dangerous touching and (2) requires more than mere recklessness.
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 violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
F 16.140c
Touching Must Be Non-Consensual
(PC 242)
*Add to CJ 16.140:
In the crime of battery, criminal intent must exist at the time of the commission of the ___________ [crime charged]. There is no criminal intent if the defendant had a reasonable and good faith belief that the other person voluntarily consented to the touching. Therefore, a reasonable and good faith belief that there was voluntary consent is a defense to such a charge.
If after a consideration of all the evidence, you have a reasonable doubt that the defendant had criminal intent at the time of the touching, you must find [him] [her] not guilty of such crime.
Points and Authorities
The comment to CJ 16.141 relies upon People v. Sanchez (78) 83 CA3d Supp 1, 3 [147 CR 850] to conclude: “That the victim did not consent to touching is not an element of the offense and need not be proved by the prosecution; the burden of the affirmative defense of reasonable belief that the victim impliedly consented and thus would not be offended by the touching is on the defendant.”
However, Sanchez actually reaffirmed the principle set forth in People v. Mayberry (75) 15 C3d 143, 157, [125 CR 745] that the defendant is “only required to raise a reasonable doubt as to whether he had … [ a reasonable and bona fide belief in consent].” [Emphasis by Sanchez court.] (Sanchez, 83 CA3d at Supp 4.)
Accordingly, the above instruction, which is patterned after the Mayberry instruction applicable to rape (CJ 10.65), should be given when appropriate.
Failure to adequately instruct upon a defense or defense theory implicates 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 FORECITE PG VII(C).]
NOTES
People v. Williams (92) 4 C4th 354, 362 [14 CR 441] held that a Mayberry instruction need not be given in a rape case absent substantial evidence of equivocal conduct that would have led a defendant to reasonably and in good faith believe consent existed where it did not. (See CJ 10.65, comment.) However, no case has applied the Williams requirement to battery. Moreover, Williams may implicate federal due process principles. (See FORECITE F 10.65 n1.)
