California Criminal Jury Instructions (CALCRIM) (2017)

2723. Battery by Prisoner on Nonprisoner

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2723.Battery by Prisoner on Nonprisoner (Pen. Code, § 4501.5)
The defendant is charged [in Count ] with battery on someone
who was not a prisoner [in violation of Penal Code section 4501.5].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant willfully touched <insert name of
person allegedly battered, excluding title of law enforcement agent>
in a harmful or offensive manner;
2. When (he/she) acted, the defendant was serving a sentence in a
[California] state prison;
[AND]
3. <insert name of person allegedly battered, excluding
title of law enforcement agent> was not serving a sentence in state
prison(;/.)
<Give element 4 when self-defense or defense of another is an issue
raised by the evidence.>
[AND
4. The defendant did not act (in self-defense/ [or] in defense of
someone else).]
Someone commits an act willfully when he or she does it willingly or on
purpose. It is not required that he or she intend to break the law, hurt
someone else, or gain any advantage.
The slightest touching can be enough to commit a battery if it is done in
a rude or angry way. Making contact with another person, including
through his or her clothing, is enough. The touching does not have to
cause pain or injury of any kind.
[The touching can be done indirectly by causing an object [or someone
else] to touch the other person.]
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/Corrections and
Rehabilitation)) 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,
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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.]
<When lawful performance is an issue, give the following paragraph and
Instruction 2671, Lawful Performance: Custodial Offıcer.>
[A custodial officer is not lawfully performing his or her duties if he or
she is using unreasonable or excessive force in his or her duties.
Instruction 2671 explains when force is unreasonable or excessive.]
New January 2006; Revised March 2017
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the crime.
If there is sufficient evidence of self-defense or defense of another, the court has a
sua sponte duty to instruct on the defense. Give bracketed element 4 and any
appropriate defense instructions. (See CALCRIM Nos. 3470–3477.)
The court has a sua sponte duty to instruct on defendant’s reliance on self-defense
as it relates to the use of excessive force. (See People v. Coleman (1978) 84
Cal.App.3d 1016, 1022–1023 [149 Cal.Rptr. 134]; People v. White (1980) 101
Cal.App.3d 161, 167–168 [161 Cal.Rptr. 541]; People v. Olguin (1981) 119
Cal.App.3d 39, 46–47 [173 Cal.Rptr. 663].) If there is evidence of excessive force,
give bracketed element 4, the last bracketed paragraph, and the appropriate portions
of CALCRIM No. 2671, Lawful Performance: Custodial Offıcer.
Give the bracketed paragraph on indirect touching if that is an issue.
In the definition of “serving a sentence in a state prison,” give the bracketed
portion that begins with “regardless of the purpose,” or the bracketed second or
third sentence, if requested and relevant based on the evidence.
Related Instructions
CALCRIM No. 960, Simple Battery.
AUTHORITY
• Elements of Battery by Prisoner on Nonprisoner. Pen. Code, § 4501.5.
Elements of Battery. Pen. Code, § 242; see People v. Martinez (1970) 3
Cal.App.3d 886, 889 [83 Cal.Rptr. 914] [harmful or offensive touching].
• Willful Defined. Pen. Code, § 7(1); People v. Lara (1996) 44 Cal.App.4th 102,
107 [51 Cal.Rptr.2d 402].
• Least Touching. People v. Myers (1998) 61 Cal.App.4th 328, 335 [71
CALCRIM No. 2723 CRIMES AGAINST GOVERNMENT
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Cal.Rptr.2d 518] [citing People v. Rocha (1971) 3 Cal.3d 893, 899–900, fn. 12
[92 Cal.Rptr. 172, 479 P.2d 372]].
• Confined in State Prison Defined. Pen. Code, § 4504.
• Underlying Conviction Need Not Be Valid. Wells v. California (9th Cir. 1965)
352 F.2d 439, 442.
Secondary Sources
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 13–16, 57.
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Defenses, § 69.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, § 142.12 (Matthew Bender).
LESSER INCLUDED OFFENSES
• Simple Battery. Pen. Code, § 242.
Assault. Pen. Code, § 240.
2724–2734. Reserved for Future Use
CRIMES AGAINST GOVERNMENT CALCRIM No. 2723
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