California Criminal Jury Instructions (CALCRIM) (2017)

841. Simple Battery: Against Spouse, Cohabitant, or Fellow Parent

Download PDF
841.Simple Battery: Against Spouse, Cohabitant, or Fellow
Parent (Pen. Code, § 243(e)(1))
The defendant is charged [in Count ] with battery against [his/
her] ([former] spouse/cohabitant/fiancé[e]/a person with whom the
defendant currently has, or previously had, a (dating/ [or] engagement)
relationship/the (mother/father) of (his/her) child) [in violation of Penal
Code section 243(e)(1)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant willfully [and unlawfully] touched
<insert name of complaining witness> in a harmful or offensive
manner;
[AND]
2. <insert name of complaining witness> is (the/a)
(defendant’s [former] spouse/defendant’s cohabitant/defendant’s
fiancé[e]/person with whom the defendant currently has, or
previously had, a (dating/ [or] engagement) relationship/(mother/
father) of the defendant’s child)(;/.)
<Give element 3 when instructing on self-defense or defense of another.>
[AND
3. 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.]
[The term cohabitants means two unrelated persons living together for a
substantial period of time, resulting in some permanency of the
relationship. Factors that may determine whether people are cohabiting
include, but are not limited to, (1) sexual relations between the parties
while sharing the same residence, (2) sharing of income or expenses, (3)
joint use or ownership of property, (4) the parties’ holding themselves
out as (husband and wife/domestic partners), (5) the continuity of the
555
0043
relationship, and (6) the length of the relationship.]
[A person may cohabit simultaneously with two or more people at
different locations, during the same time frame, if he or she maintains
substantial ongoing relationships with each person and lives with each
person for significant periods.]
[The term dating relationship means frequent, intimate associations
primarily characterized by the expectation of affection or sexual
involvement independent of financial considerations.]
[A person is considered to be the (mother/father) of another person’s
child if the alleged male parent is presumed under the law to be the
natural father. <insert name of presumed father> is
presumed under law to be the natural father of <insert
name of child>.]
New January 2006; Revised June 2007, February 2016
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 of self-defense or defense of another, the court has a
sua sponte duty to instruct on the defense. Give bracketed element 3 and any
appropriate defense instructions. (See CALCRIM Nos. 3470–3477.)
Give the bracketed language “[and unlawfully]” in element 1 if there is evidence
that the defendant acted in self-defense.
Give the bracketed paragraph on indirect touching if that is an issue.
Give the third bracketed sentence that begins with “A person may cohabit
simultaneously with two or more people” on request if there is evidence that the
defendant cohabited with two or more people. (See People v. Moore (1996) 44
Cal.App.4th 1323, 1335 [52 Cal.Rptr.2d 256].)
Give on request the bracketed paragraph that begins with “A person is considered
to be the (mother/father)” if an alleged parental relationship is based on the
statutory presumption that the male parent is the natural father. (See Pen. Code,
§ 273.5(d); see also People v. Vega (1995) 33 Cal.App.4th 706, 711 [39 Cal.Rptr.2d
479] [parentage can be established without resort to any presumption].)
AUTHORITY
• Elements. Pen. Code, § 243(e)(1).
Willfully 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
CALCRIM No. 841 ASSAULTIVE AND BATTERY CRIMES
556
0044
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]].
• Cohabitant Defined. People v. Holifield (1988) 205 Cal.App.3d 993, 1000 [252
Cal.Rptr. 729]; People v. Ballard (1988) 203 Cal.App.3d 311, 318–319 [249
Cal.Rptr. 806].
• Dating Relationship Defined. Pen. Code, § 243(f)(10).
• Simultaneous Cohabitation. People v. Moore (1996) 44 Cal.App.4th 1323,
1335 [52 Cal.Rptr.2d 256].
Secondary Sources
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, § 19.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, § 142.12[2] (Matthew Bender).
LESSER INCLUDED OFFENSES
• Assault. Pen. Code, § 240.
• Simple Battery. Pen. Code, §§ 242, 243(a).
RELATED ISSUES
See the Related Issues section of CALCRIM No. 960, Simple Battery.
842–849. Reserved for Future Use
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 841
557
0045