Criminal Law

2723. Battery by Prisoner on Nonprisoner

The defendant is charged [in Count ______] with battery on someone who was not a prisoner.

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;


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.>


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 (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.]

<When lawful performance is an issue, give the following paragraph and Instruction 2671, Lawful Performance: Custodial Officer.>

[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.]

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 Officer.

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.


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, subd. 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 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 (1965) 352 F.2d 439, 442.

Secondary Sources

1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against the Person, §§ 12-15, 57.

1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Defenses, § 67.

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.

(New January 2006)