SERIES 800 ASSAULTIVE AND BATTERY CRIMES
F 822 Inflicting Physical Punishment On Child (PC 273d(a))
TABLE OF CONTENTS
F 822.1 Inflicting Physical Punishment On Child: Titles And Identification Of Parties
F 822.1 Inst 1 Inflicting Physical Punishment On Child—Title
F 822.1 Inst 2 Identification Of Prosecution And Defendant
F 822.2 Inflicting Physical Punishment On Child: Tailoring To Facts: Persons, Places, Things And Theories
F 822.2 Inst 1 Tailoring Elements To Facts: Name Of Alleged Victim
F 822.3 Inflicting Physical Punishment On Child: Language That Is Argumentative, Confusing, Etc.
F 822.3 Inst 1 Delete Argumentative Language
F 822.4 Inflicting Physical Punishment On Child: Burden Of Proof Issues
F 822.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 822.5 Inflicting Physical Punishment On Child: Elements And Definitions
F 822.5 Inst 1 Clarification Of “Traumatic Physical Condition”
F 822.5 Inst 2 (a & b) “Minor” Wound Is Not “Traumatic Condition” (PC 273d)
F 822.5 Inst 3 Separate Enumeration Of Willfully Element
F 822.5 Inst 4 Natural And Probably Consequences: Reasonable Person Standard
F 822.5 Inst 5 Willfully: Knowledge Element
F 822.6 Inflicting Physical Punishment On Child: Defense Theories
F 822.6 Inst 1 Parental Discipline As Defense Theory
F 822.6 Inst 2 Parent’s Right To Discipline Child: Factors To Consider As To Whether Force Was Excessive Or Unreasonable
F 822.7 Inflicting Physical Punishment On Child: Preliminary Fact Issues [Reserved]
F 822.8 Inflicting Physical Punishment On Child: Unanimity/Duplicity/Multiplicity [Reserved]
F 822.9 Inflicting Physical Punishment On Child: Lesser Offense Issues [Reserved]
F 822 NOTES
F 822 Note 1 Inflicting Physical Punishment On Child: CALCRIM Cross-References And Research Notes
F 822 Note 2 Parent’s Right To Discipline Child: Definition Of “Force And Violence”
F 822 Note 3 Parents’ Right To Discipline Child: Jury Must Make Determination Of Objective Reasonableness
Return to Series 800 Table of Contents.
F 822.1 Inflicting Physical Punishment On Child: Titles And Identification Of Parties
F 822.1 Inst 1Inflicting Physical Punishment On Child—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 822.1 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 822.2 Inflicting Physical Punishment On Child: Tailoring To Facts: Persons, Places, Things And Theories
F 822.2 Inst 1 Tailoring Elements To Facts: Name Of Alleged Victim
See FORECITE F 810.2 Inst 1.
F 822.3 Inflicting Physical Punishment On Child: Language That Is Argumentative, Confusing, Etc.
F 822.3 Inst 1 Delete Argumentative Language
*Modify CC 822, paragraph 9, sentence 2, as follows [deleted language is stricken]:
However, it does not need to be the only factor that caused the traumatic condition.
Points and Authorities
See FORECITE F 416.3 Inst 4.
F 822.4 Inflicting Physical Punishment On Child: Burden Of Proof Issues
F 822.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 822.5 Inflicting Physical Punishment On Child: Elements And Definitions
F 822.5 Inst 1Clarification Of “Traumatic Physical Condition”
*Modify CC 822, paragraph 6, as follows [added language is underlined]:
A traumatic physical condition is a wound or other internal or external bodily injury, whether minor or serious, caused by the direct application of physical force.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Internal Or External Wound—People v. Gutierrez (1985) 171 CA3d 944.
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 822.5 Inst 2 (a & b) “Minor” Wound Is Not “Traumatic Condition” (PC 273d)
*Replace definition of “traumatic condition” in CC 822 with the following:
Alternative a:
A traumatic condition is a condition of the body, such as a wound or external or internal condition, caused by a physical force. To constitute a traumatic condition, the wound or injury must be a serious bodily injury.
A serious bodily injury means a serious impairment of physical condition. Such an injury may include[, but is not limited to]: (loss of consciousness/ concussion/ bone fracture/ protracted loss or impairment of function of any bodily member or organ/ a wound requiring extensive suturing/ [and] serious disfigurement).
Alternative b [CC 3400 adaption]:
The prosecution must prove that the defendant inflicted a traumatic condition on _______________ <name of alleged victim>. The defendant contends that any wound inflicted was minor and, therefore, not a traumatic condition.
To prove a traumatic condition the prosecution must prove beyond a reasonable doubt that _______________ <name of alleged victim> suffered a serious impairment of (his/her) physical condition such as, but not limited to, (loss of consciousness/ concussion/ bone fracture/ protracted loss or impairment of function of any bodily member or organ/ a wound requiring extensive suturing/ [and] serious disfigurement).
The defendant does not need to prove that the wound was minor. If you have a reasonable doubt about any element of the charge, including whether the defendant inflicted a traumatic condition upon _______________ <name of alleged victim>, you must find (him/her) not guilty.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Serious Bodily Injury Defined—See CALCRIM 925.
Minor Wound Not Sufficient—Sound principles of statutory construction require that the injury inflicted be serious and not minor to constitute a violation of PC 273d. The statutory language provides as follows: “Any person who wilfully inflicts upon any child any cruel or inhuman corporal punishment or injury resulting in traumatic condition is guilty of a felony …” This language is ambiguous in that it is unclear whether the words “cruel or inhuman” modify “corporal punishment” only or both “corporal punishment” and “injury.” Any ambiguity must be resolved in favor of the defendant. (People v. Belmontes (1983) 34 C3d 335, 346.) Hence, it should be concluded that the statute cannot be satisfied by “any” injury; rather, it must be cruel and inhuman injury.
Such an interpretation is also consistent with the legislative objective. To permit conviction upon proof of any injury, however minor, would extend the statutory proscription to situations where the child incurs only a slight scratch or abrasion from a reasonable and good faith effort to humanely discipline the child. Obviously, PC 273d was not intended to apply to such a situation. It addresses “the abhorrence which willful infliction of serious injury upon children engenders.” [Emphasis added.] (People v. Brooks (1992) 3 CA4th 669, 671-72.) Accordingly, because the statute must be construed to further the purposes of the legislation (People v. Belleci (1979) 24 C3d 879, 884, “traumatic condition” should be defined in terms of serious bodily injury.)
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.
CALJIC NOTE: See FORECITE F 9.36a.
F 822.5 Inst 3 Separate Enumeration Of Willfully Element
See FORECITE F 840.5 Inst 1.
F 822.5 Inst 4 Natural And Probably Consequences: Reasonable Person Standard
See FORECITE F 402.5 Inst 1.
F 822.5 Inst 5 Willfully: Knowledge Element
See FORECITE F 820.5 Inst 1.
F 822.6 Inflicting Physical Punishment On Child: Defense Theories
F 822.6 Inst 1 Parental Discipline As Defense Theory
See FORECITE F 821.6 Inst 1.
F 822.6 Inst 2 Parent’s Right To Discipline Child: Factors To Consider As To Whether Force Was Excessive Or Unreasonable
See FORECITE F 821.6 Inst 2.
F 822.7 Inflicting Physical Punishment On Child: Preliminary Fact Issues[Reserved]
F 822.8 Inflicting Physical Punishment On Child: Unanimity/Duplicity/Multiplicity[Reserved]
F 822.9 Inflicting Physical Punishment On Child: Lesser Offense Issues[Reserved]
F 822 NOTES
F 822 Note 1 Inflicting Physical Punishment On Child: CALCRIM Cross-References And Research Notes
CALCRIM Cross References:
CALCRIM 821 [Child Abuse Likely To Produce Great Bodily Harm Or Death (PC 273a(a))]
CALCRIM 823 [Child Abuse (PC 273a(b))]
Research Notes:
See CLARAWEB Forum, Assaultive And Battery Crimes—Series 800-900.
F 822 Note 2 Parent’s Right To Discipline Child: Definition Of “Force And Violence”
See FORECITE F 4.80 n1.
F 822 Note 3 Parents’ Right To Discipline Child: Jury Must Make Determination Of Objective Reasonableness
See FORECITE F 4.80 n2.