California Criminal Jury Instructions (CALCRIM) (2017)

822. Inflicting Physical Punishment on Child

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822.Inflicting Physical Punishment on Child (Pen. Code,
§ 273d(a))
The defendant is charged [in Count ] with inflicting on a child
cruel or inhuman physical punishment or injury that caused a
traumatic condition [in violation of Penal Code section 273d(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant willfully inflicted (cruel or inhuman physical
punishment/ [and/or] an injury) on a child;
[AND]
2. The (punishment/ [and/or] injury) inflicted by the defendant
caused a traumatic physical condition to the child(;/.)
<Give element 3 when instructing on parental right to discipline>
[AND
3. When the defendant acted, (he/she) was not reasonably
disciplining a child.]
Someone commits an act willfully when he or she does it willingly or on
purpose.
Achild is any person under the age of 18 years.
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
Atraumatic physical condition is a wound or other bodily injury,
whether minor or serious, caused by the direct application of physical
force.
A (punishment/ [and/or] injury) caused a traumatic physical condition
if:
1. The traumatic condition was the natural and probable
consequence of the (punishment/ [and/or] injury);
2. The (punishment/ [and/or] injury) was a direct and substantial
factor in causing the condition;
AND
3. The condition would not have happened without the
(punishment/ [and/or] injury).
Anatural and probable consequence is one that a reasonable person
would know is likely to happen if nothing unusual intervenes. In
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deciding whether a consequence is natural and probable, consider all of
the circumstances established by the evidence.
Asubstantial factor is more than a trivial or remote factor. However, it
does not need to be the only factor that caused the traumatic condition.
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
If there is sufficient evidence, the court has a sua sponte duty to instruct on the
defense of disciplining a child. (People v. Whitehurst (1992) 9 Cal.App.4th 1045,
1049 [12 Cal.Rptr.2d 33].) Give bracketed element 3 and CALCRIM No. 3405,
Parental Right to Punish a Child.
Give the bracketed paragraph about calculating age if requested. (Fam. Code,
§ 6500; In re Harris (1993) 5 Cal.4th 813, 849–850 [21 Cal.Rptr.2d 373, 855 P.2d
391].)
AUTHORITY
• Elements. Pen. Code, § 273d(a).
Willful Defined. Pen. Code, § 7, subd. 1; see People v. Lara (1996) 44
Cal.App.4th 102, 107 [51 Cal.Rptr.2d 402].
• Child Defined. People v. Thomas (1976) 65 Cal.App.3d 854, 857–858 [135
Cal.Rptr. 644] [victim’s size and age relevant to reasonableness of corporal
punishment]; see Fam. Code, § 6500.
• Duty to Define Traumatic Condition. People v. Burns (1948) 88 Cal.App.2d
867, 873–874 [200 P.2d 134].
• General Intent Crime. People v. Atkins (1975) 53 Cal.App.3d 348, 358 [125
Cal.Rptr. 855].
• Traumatic Condition Defined. People v. Thomas (1976) 65 Cal.App.3d 854,
857 [135 Cal.Rptr. 644]; People v. Stewart (1961) 188 Cal.App.2d 88, 91 [10
Cal.Rptr. 217]; see People v. Gutierrez (1985) 171 Cal.App.3d 944, 951–953
[217 Cal.Rptr. 616] [in context of Pen. Code, § 273.5].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Sex Offenses and
Crimes Against Decency, §§ 164, 165.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, §§ 142.13[2], 142.23[7] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure § 12:17 (The
Rutter Group).
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LESSER INCLUDED OFFENSES
• Attempted Infliction of Corporal Punishment. Pen. Code, §§ 664, 273d.
• Simple Assault. Pen. Code, § 240.
• Simple Battery. Pen. Code, § 242; see People v. Sargent (1999) 19 Cal.4th
1206, 1220 [81 Cal.Rptr.2d 835, 970 P.2d 409]; People v. Stewart (1961) 188
Cal.App.2d 88, 89 [10 Cal.Rptr. 217].
Willfully causing or permitting a child to suffer, or willfully inflicting on a child,
unjustifiable physical pain or mental suffering under circumstances other than those
likely to produce great bodily harm or death (Pen. Code, § 273a(b)) is not a lesser
included offense of Penal Code section 273d. (See People v. Lofink (1988) 206
Cal.App.3d 161, 166 [253 Cal.Rptr. 384].)
RELATED ISSUES
Spanking
It is not unlawful for a parent to spank a child for disciplinary purposes with an
object other than the hand. The punishment, however, must be necessary and not
excessive in relation to the individual circumstances. (80 Ops.Cal.Atty.Gen. 203
(1997).)
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