California Criminal Jury Instructions (CALCRIM) (2017)

2722. Battery by Gassing

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2722.Battery by Gassing (Pen. Code, §§ 243.9, 4501.1)
The defendant is charged [in Count ] with battery by gassing [in
violation of <insert appropriate code section[s]>].
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));
AND
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 Corrections and
Rehabilitation[, Division of Juvenile Justice,]) 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 offıcer>, authorized by <insert appropriate section from
Pen. Code, § 830 et seq.> to <describe statutory authority>,
is a peace officer.]
New January 2006; Revised March 2017
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0133
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].)
AUTHORITY
• Elements. Pen. Code, §§ 242, 243.9, 4501.1.
Confined in State Prison Defined. Pen. Code, § 4504.
• Local Detention Facility Defined. Pen. Code, § 6031.4.
LESSER INCLUDED OFFENSES
• Battery by Prisoner on Non-Prisoner. People v. Flores (2009) 176 Cal.App.4th
924, 929 [97 Cal.Rptr.3d 924].
Secondary Sources
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 13–15, 62.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, § 142.12 (Matthew Bender).
CALCRIM No. 2722 CRIMES AGAINST GOVERNMENT
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