822. Inflicting Physical Punishment on Child
The defendant is charged [in Count ______] with inflicting on a child cruel or inhuman physical punishment or injury that caused a traumatic condition.
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;
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>
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.
A child 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.]
A traumatic 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;
3. The condition would not have happened without the (punishment/ [and/or] injury).
A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence.
A substantial factor is more than a trivial or remote factor. However, it does not need to be the only factor that caused the traumatic condition.
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].)
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].
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, 142.23 (Matthew Bender).
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].)
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).)
(New January 2006)