Return to CALJIC Part 9-12 – Contents
F 10.37 n1 Sexual Battery: Research Notes (PC 243.4).
See Annotation, What constitutes offense of “sexual battery,” 87 ALR3d 1250 and Later Case Service.
F 10.37 n2 Sexual Battery: Misdemeanor Battery As Lesser Included (PC 243.4).
In September 1989, the legislature added subdivision (d) to PC 243.4, creating a lesser included offense of misdemeanor battery, an offense lacking the element of “unlawful restraint.”
F 10.37 n3 Sexual Battery: Unlawful Restraint Requires Evidence That Touching Was Against Victim’s Will (PC 243.4).
People v. Arnold (92) 6 CA4th 18, 27-28 [7 CR2d 833].
F 10.37 n4 Sexual Battery: “Unlawful Restraint” Need Not Be Physical Restraint (PC 243.4).
See People v. Grant (92) 8 CA4th 1105, 1112-13 [10 CR2d 828]; People v. Arnold (92) 6 CA4th 18, 23-31 [7 CR2d 833].
F 10.37 n5 Sexual Battery: Cannot Be Committed With A Foreign Object (PC 243.4).
The “touching” element of sexual battery requires the “placement of any part of the body of the perpetrator upon the skin of the victim.” [Emphasis added.] (People v. Young DEPUBLISHED (92) 9 CA4th 1791 [12 CR2d 318].) Hence, sexual battery cannot be committed with a foreign object. [A copy of the Young opinion is available to FORECITE subscribers. Ask for Opinion Bank # O-128.]
F 10.37a
Sexual Battery: Victim Must Touch Another Person
(PC 243.4)
*¶ 3 of CJ 10.37 (1990 version) should be modified to read as follows [added language is capitalized; deleted language is between <<>>]:
Every person who, with the specific intent to cause sexual arousal, sexual gratification, or sexual abuse, causes another person, against that person’s will, while that person [is unlawfully restrained by the accused or an accomplice] [or] [is institutionalized for medical treatment and is seriously disabled or medically incapacitated] to masturbate ANOTHER PERSON or touch an intimate part of <<either of those persons or a third person …>> ANOTHER PERSON, is guilty of the crime of sexual battery in violation of PC 243.4[(c)].
Points and Authorities
CJ 10.37 (1990 New) seeks to define the elements of sexual battery under PC 243.4(a-c). However, the following language of CJ 10.37 improperly permits the jury to convict the defendant even if the victim was only caused to touch an intimate part of his/her own body: “Every person who, with the specific intent to cause sexual arousal, sexual gratification, or sexual abuse, causes another person, against that person’s will, while that person [is unlawfully restrained by the accused or an accomplice] [or] [is institutionalized for medical treatment and is seriously disabled or medically incapacitated] to masturbate another person or touch an intimate part of either of those persons or a third person, is guilty of the crime of sexual battery in violation of PC 243.4[(c)].”
Clearly the legislature did not intend the phrase “of either of those persons” to impose liability when the victim is forced to masturbate or touch himself. The obvious purpose of PC 243.4(c) is to impose criminal liability if the defendant caused the victim to masturbate another person or to touch an intimate part of another person, whether that person be the defendant, an accomplice, or a third party. Indeed battery is defined as the touching of one person by another. (PC 242.) Moreover, the statute specifically defines the term touch as “physical contact with the skin of another person ….”
Hence, to more accurately implement the legislative intent, ¶ 3 of CJ 10.37 should be modified as set forth above.
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).]
NOTES
Element (3) of CJ 10.37 requires that “the touching or masturbation was against the will of the person touched or masturbated.” This is not an element when the essence of the charge is that the defendant caused the victim to touch the intimate parts of another person.
F 10.37b
Sexual Battery: “Unlawful Restraint” Requires
More Than Physical Effort Required To Commit The Sexual Act
(PC 243.4)
*Add at end of CJ 10.37 the following:
“Unlawfully restrained” means the application of force beyond the physical effort necessary to commit the prohibited sexual act.
Points and Authorities
The legislature has not defined “unlawfully restrained” which is an element of sexual battery in violation of PC 243.4. In People v. Pahl (91) 226 CA3d 1651 [277 CR 656], the Court of Appeal observed that no reported decisions in California have discussed the meaning of the term. The court went on to observe that the term “unlawfully restrained” as used in the sexual battery statute “can be viewed as distinguishing the non-sexual physical element of sexual battery from the more wanton ‘force, violence, or fear’ element of rape. [Footnote omitted].” (Pahl at 1661.) The court went on to hold that “the unlawful restraint required for violation of PC 243.4 is something more than the exertion of physical effort required to commit the prohibited sexual act.” (Ibid; see also FORECITE F 10.00b [force element of rape requires physical force substantially different from or greater than that necessary to accomplish the sexual act itself].)
Therefore, since “unlawful restraint” has been given a legal meaning which might not be commonly known to lay jurors, it should be defined in the jury instructions. (See People v. Pitmon (85) 170 CA3d 38, 52 [216 CR 221]; see also FORECITE PG II(B).)
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 10.37c
Sexual Battery: Fraudulent Representation
That Act Served A Professional Purpose
(PC 243.4)
*Add to CJ 10.37 ¶ 2 [added language is capitalized]:
[Every person who with the specific intent to cause sexual arousal, gratification, or abuse, touches an intimate part of another person against that person’s will, [while that person is unlawfully restrained by the accused or an accomplice,] [or] [while that person is institutionalized for medical treatment and is seriously disabled or medically incapacitated,] [OR] [WHILE THAT PERSON WAS, AT THE TIME, UNCONSCIOUS OF THE NATURE OF THE ACT BECAUSE THE PERPETRATOR FRAUDULENTLY REPRESENTED THAT THE TOUCHING SERVED A PROFESSIONAL PURPOSE,] is guilty of the crime of sexual battery in violation of Penal Code section 243.4, subdivision [(a)] [(b)] [(C)].]
Points and Authorities
PC 243.4, defining sexual battery, was amended to include the act of touching an intimate part of another for sexual purposes when the victim is unconscious of the nature of the act due to the perpetrators’ fraudulent representation that the touching served a professional purpose. (SB 1421, Ch. 302, effective 1/1/2003.)
