SERIES 900 ASSAULTIVE AND BATTERY CRIMES
F 938 Sexual Battery: Misdemeanor (PC 243.4(e)(1))
TABLE OF CONTENTS
F 938.1 Titles And Identification Of Parties
F 938.1 Inst 1 Sexual Battery: Misdemeanor—Title
F 938.1 Inst 2 Identification Of Prosecution And Defendant
F 938.2 Sexual Battery: Misdemeanor—Tailoring To Facts: Persons, Places, Things And Theories [Reserved]
F 938.3 Sexual Battery: Misdemeanor—Language That Is Argumentative, Confusing, Etc. [Reserved]
F 938.4 Burden Of Proof Issues
F 938.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 938.4 Inst 2 (a & b) Sexual Battery: Consent—Modification Of Burden Shifting Language
F 938.5 Sexual Battery: Misdemeanor—Elements And Definitions
F 938.5 Inst 1 Specification Of “Bare Skin” Requirement As An Element Of The Offense
F 938.5 Inst 2 (a-c) Sexual Battery: “Specific Purpose” Is A Form Of Intent Which May Be Negated By Intoxication Or Mental Impairment
F 938.6 Sexual Battery: Misdemeanor—Defense Theories [Reserved]
F 938.7 Sexual Battery: Misdemeanor—Preliminary Fact Issues [Reserved]
F 938.8 Sexual Battery: Misdemeanor—Unanimity/Duplicity/Multiplicity [Reserved]
F 938.9 Sexual Battery: Misdemeanor—Lesser Offense Issues [RESERVEd]
F 938NOTES
F 938 Note 1 Sexual Battery: Misdemeanor—Notes
F 938 Note 2 Sexual Battery Requires Sexual Molestation
F 938 Note 3 Evidentiary Issues
F 938.9 NOTES
F 938.9 Note 1 Sexual Battery (PC 243.4(e)(1)) Not LIO Of Sexual Battery By Fraudulent Representation (PC 243.4(c))
F 938.9 LIO Note 1 PC 243.4(e)(1) Not A Lesser Included Offense Of PC 243.4(c)
Return to Series 900 Table of Contents.
F 938.1 Titles And Identification Of Parties
F 938.1 Inst 1 Sexual Battery: Misdemeanor—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 938.1 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 938.2 Sexual Battery: Misdemeanor—Tailoring To Facts: Persons, Places, Things And Theories [Reserved]
F 938.3 Sexual Battery: Misdemeanor—Language That Is Argumentative, Confusing, Etc. [Reserved]
F 938.4 Burden Of Proof Issues
F 938.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 938.4 Inst 2 (a & b) Sexual Battery: Consent—Modification Of Burden Shifting Language
See FORECITE F 935.4 Inst 2 (a & b).
F 938.5 Sexual Battery: Misdemeanor—Elements And Definitions
F 938.5 Inst 1 Specification Of “Bare Skin” Requirement As An Element Of The Offense
See FORECITE F 935.5 Inst 1.
F 938.5 Inst 2 (a-c) Sexual Battery: “Specific Purpose” Is A Form Of Intent Which May Be Negated By Intoxication Or Mental Impairment
See FORECITE F 935.5 Inst 4 (a-c).
F 938.6 Sexual Battery: Misdemeanor—Defense Theories[Reserved]
F 938.7 Sexual Battery: Misdemeanor—Preliminary Fact Issues[Reserved]
F 938.8 Sexual Battery: Misdemeanor—Unanimity/Duplicity/Multiplicity [Reserved]
F 938.9 Sexual Battery: Misdemeanor—Lesser Offense Issues[Reserved]
F 938 NOTES
F 938 Note 1 Sexual Battery: Misdemeanor—Notes
See FORECITE F 935 Notes.
F 938 Note 2 Sexual Battery Requires Sexual Motivation
The Commentary to CC 937 cites People v. White (1986) 179 CA3d 193 for the proposition that the perpetrator “does not need to achieve any sexual arousal or sexual gratification.” However, subsequent to White a California Supreme Court decision held to the contrary. (See People v. Martinez (1995) 11 C4th 434, 451 [PC 243.4 requires a “sexually motivated” touching].)
F 938 Note 3 Evidentiary Issues
See CC 1191 which addresses the extent to which jurors may rely on evidence of uncharged sexual offenses.
F 938.9 NOTES
F 938.9 Note 1 Sexual Battery (PC 243.4(e)(1)) Not LIO Of Sexual Battery By Fraudulent Representation (PC 243.4(c))
Because sexual battery (PC 243.4(e)(1)) requires that the intimate touching be against the will of the victim, it is not a lesser included offense to sexual battery by fraudulent representation (PC 243.4(c)). Stated another way, sexual battery by fraudulent representation cannot necessarily include sexual battery because the elements of the two crimes are not coextensive. At best, sexual battery is a lesser related offense to sexual battery by fraudulent representation. (People v. Babaali (2009) 171 CA4th 982, 998, 1000.)
F 938.9 LIO Note 1 PC 243.4(e)(1) Not A Lesser Included Offense Of PC 243.4(c)
Because sexual battery (PC 243.4(e)(1)) requires that the intimate touching be against the will of the victim, it is not a lesser included offense to sexual battery by fraudulent representation under PC 243.4(c). Stated another way, sexual battery by fraudulent representation cannot necessarily include sexual battery because the elements of the two crimes are not coextensive. At best, sexual battery is a lesser related offense to sexual battery by fraudulent representation. (People v. Babaali (2009) 171 CA4th 982, 998, 1000.)