Criminal Law

2722. Battery by Gassing

The defendant is charged [in Count ______] with battery by gassing.

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant was (serving a sentence in a [California] state prison/confined in a local detention facility);

2. While so confined, the defendant intentionally committed an act of gassing, that is, (he/she) (placed[,]/ [or] threw[,]/ [or] caused to be placed or thrown) (human excrement/ human urine/human bodily fluids or substances/a mixture containing human bodily substances) on the body of (a peace officer/an employee of a (state prison/local detention facility));


3. The (excrement/urine/bodily fluids or substances/mixture) actually made contact with the skin [or membranes] of (a peace officer/an employee of a (state prison/local detention facility)).

[A person is serving a sentence in a state prison if he or she is (confined in <insert name of institution from Pen. Code, § 5003>/committed to the Department of (the Youth Authority/ Corrections)) by an order made according to law[, regardless of both the purpose of the (confinement/commitment) and the validity of the order directing the (confinement/commitment), until a judgment of a competent court setting aside the order becomes final]. [A person may be serving a sentence in a state prison even if, at the time of the offense, he or she is confined in a local correctional institution pending trial or is temporarily outside the prison walls or boundaries for any permitted purpose, including but not limited to serving on a work detail.] [However, a prisoner who has been released on parole is not serving a sentence in a state prison.]]

[A (county jail/city jail/ <insert description>) is a local detention facility.]

[A sworn member of <insert name of agency that employs peace officer>, authorized by <insert appropriate section from Pen. Code, § 830 et seq.> to <describe statutory authority>, is a peace officer.]

Bench Notes

Instructional Duty

The court has a sua sponte duty to give this instruction defining the elements of the crime.

If the battery is charged under Penal Code section 4501.1, in element 1, use the phrase "serving a sentence in state prison" and the bracketed definition of this phrase. If the battery is charged under Penal Code section 243.9, in element 1, give the language referencing a "local detention facility" and the bracketed definition of local detention facility.

When giving the definition of "serving a sentence in a state prison," give the bracketed portion that begins "regardless of the purpose," or the bracketed second or third sentence, if requested and relevant based on the evidence.

The jury must determine whether the alleged victim was a peace officer. (People v. Flood (1998) 18 Cal.4th 470, 482 [76 Cal.Rptr.2d 180, 957 P.2d 869].) The court must instruct the jury in the appropriate definition of "peace officer" from the statute. (Ibid.) It is error for the court to instruct that the witness is a peace officer as a matter of law. (Ibid. [instruction that "Officer Bridgeman and Officer Gurney are peace officers" was error].)


Elements. Pen. Code, §§ 242, 243.9, 4501.1.

Confined in State Prison Defined. Pen. Code, § 4504.

Local Detention Facility Defined. Pen. Code, § 6031.4.

Secondary Sources

1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against the Person, §§ 12-14, 62.

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, § 142.12 (Matthew Bender).

(New January 2006)