SERIES 900 ASSAULTIVE AND BATTERY CRIMES
F 925 Battery Causing Serious Bodily Injury (PC 242, PC 243(d))
TABLE OF CONTENTS
F 925.1 Titles And Identification Of Parties
F 925.1 Inst 1 Battery Causing Serious Bodily Injury—Title
F 925.1 Inst 2 Identification Of Prosecution And Defendant
F 925.2 Battery Causing Serious Bodily Injury—Tailoring To Facts: Persons, Places, Things And Theories [Reserved]
F 925.3 Battery Causing Serious Bodily Injury—Language That Is Argumentative, Confusing, Etc.
F 925.3 Inst 1 Willfully: Argumentative
F 925.3 Inst 2 Willfully: Balance
F 925.4 Battery Causing Serious Bodily Injury—Burden Of Proof Issues
F 925.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 925.5 Battery Causing Serious Bodily Injury—Elements And Definitions
F 925.5 Inst 1 Separate Enumeration Of Willfully And Unlawfully Elements
F 925.5 Inst 2 Causation Requirement Should Be Included In Enumerated Elements
F 925.5 Inst 3 Willfully: Knowledge Requirement
F 925.5 Inst 4 Contact Through Clothing: Clarification
F 925.5 Inst 5 Touching Must Cause “Emotional Distress”
F 925.6 Battery Causing Serious Bodily Injury—Defense Theories
F 925.6 Inst 1 (a & b) Defense Theory That Touching Was Consensual (PC 242)
F 925.7 Battery Causing Serious Bodily Injury—Preliminary Fact Issues [Reserved]
F 925.8 Battery Causing Serious Bodily Injury—Unanimity/Duplicity/Multiplicity [Reserved]
F 925.9 Battery Causing Serious Bodily Injury—Lesser Offense Issues [Reserved]
Return to Series 900 Table of Contents.
F 925.1 Titles And Identification Of Parties
F 925.1 Inst 1 Battery Causing Serious Bodily Injury—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 925.1 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 925.2 Battery Causing Serious Bodily Injury—Tailoring To Facts: Persons, Places, Things And Theories [Reserved]
F 925.3 Battery Causing Serious Bodily Injury—Language That Is Argumentative, Confusing, Etc.
F 925.3 Inst 1 Willfully: Argumentative
See FORECITE F 820.3 Inst 1.
F 925.3 Inst 2 Willfully: Balance
See FORECITE F 820.3 Inst 2.
F 925.4 Battery Causing Serious Bodily Injury—Burden Of Proof Issues
F 925.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 925.5 Battery Causing Serious Bodily Injury—Elements And Definitions
F 925.5 Inst 1 Separate Enumeration Of Willfully And Unlawfully Elements
*Modify CC 925, Element 1, as follows [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 willfully;
AND
[3. 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 925.5 Inst 2 Causation Requirement Should Be Included In Enumerated Elements
*Modify CC 925, Element 2, as follows [added language is underlined; deleted language is stricken]:
Replace:
2. ________ <insert name> suffered serious bodily injury as a result of the force used(;/.)
With:
2. The harmful and offensive touching caused ________ <insert name> to suffer serious bodily injury;
[Add definitions and explanation of causation when appropriate (e.g., _______)]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Enumeration Of Causation As An Element—Because causation is an essential element of this offense, the elemental language should be expressed in terms of causation with appropriate definitions included. (See generally FORECITE F 417.5 Inst 2; F 402.5 Inst 6.)
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 925.5 Inst 3 Willfully: KnowledgeRequirement
See FORECITE F 820.5 Inst 1.
F 925.5 Inst 4 Contact Through Clothing: Clarification
*Modify CC 925, paragraph 4, as follows [added language is underlined; deleted language is stricken]:
Making contact with another person, including through his or her clothing, is enough to commit a battery may constitute a touching.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency: No Mens Rea Requirement Included—CALCRIM 925, paragraph 4, improperly implies that a touching alone, without the mens rea elements, may be a battery.
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 925.5 Inst 5 Touching Must Cause “Emotional Distress”
*Add at the end of CC 925:
However, a touching which does not cause pain or bodily harm must cause emotional distress to the victim. The term “emotional distress” means mental distress, mental suffering or mental anguish. It includes all highly unpleasant mental reactions, such as fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation and indignity, as well as physical pain.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Feelings Of Victim Must Be Injured—It is settled that the statutory requirement of “force or violence” does not require bodily harm. (People v. Bradbury (1907) 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 (1994) 7 C4th 206, 214, n 4.) 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 suffered emotional distress. The above definition of emotional distress is taken from BAJI 12.72 (1989 Revision).
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 16.141a.
F 925.6 Battery Causing Serious Bodily Injury—Defense Theories
F 925.6 Inst 1 (a & b) Defense Theory That Touching Was Consensual (PC 242)
*Add to CC 925:
Alternative a [CC 3400 Format]:
The prosecution must prove all elements of the charged battery. The defendant contends that _______________ <name of alleged victim> consented to the alleged touching. The prosecution must prove that _______________ <name of alleged victim> did not consent. The defendant does not need to prove that _______________ <name of alleged victim> did consent. If you have a reasonable doubt about whether the prosecution has proven the required lack of consent, you must find the defendant not guilty.
Alternative b:
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
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Right To Relate Defense Theory To Burden Of Proof—See FORECITE F 315.1.2 Inst 2.
Good Faith Belief In Consent Should Be Related To Prosecution Burden—People v. Sanchez (1978) 83 CA3d Supp 1, 3 reaffirmed the principle set forth in People v. Mayberry (1975) 15 C3d 143, 157, 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.
(See FORECITE F 315.1.2 Inst 2.)
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 4.2 [Defendant Has No Burden To Prove Defense Theory Which Negates Element Of Charge]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
NOTES
People v. Williams (1992) 4 C4th 354, 362, 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.)
CALJIC NOTE: See FORECITE F 16.140c.
F 925.7 Battery Causing Serious Bodily Injury—Preliminary Fact Issues[Reserved]
F 925.8 Battery Causing Serious Bodily Injury—Unanimity/Duplicity/Multiplicity [Reserved]
F 925.9 Battery Causing Serious Bodily Injury—Lesser Offense Issues[Reserved]
