925. Battery Causing Serious Bodily Injury
The defendant is charged [in Count ______] with battery causing serious bodily injury.
To prove that the defendant is guilty of this charge, the People must prove that:
1. The defendant willfully [and unlawfully] touched <insert name> in a harmful or offensive manner;
2. <insert name> suffered serious bodily injury as a result of the force used(;/.)
<Give element 3 when instructing on self-defense, defense of another, or reasonable discipline.>
The defendant did not act (in self-defense/ [or] in defense of someone else/ [or] while reasonably disciplining a child).]
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.
Making contact with another person, including through his or her clothing, is enough to commit a battery.
[A serious bodily injury means a serious impairment of physical condition. Such an injury may include[, but is not limited to]: (loss of consciousness/ concussion/ bone fracture/ protracted loss or impairment of function of any bodily member or organ/ a wound requiring extensive suturing/ [and] serious disfigurement).]
[ <Insert description of injury when appropriate; see Bench Notes> is a serious bodily injury.]
[The touching can be done indirectly by causing an object [or someone else] to touch the other person.]
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, the bracketed words "and unlawfully" in element 1, and any appropriate defense instructions. (See CALCRIM Nos. 3470-3477.)
If there is sufficient evidence of reasonable parental discipline, the court has a sua sponte duty to instruct on the defense. Give bracketed element 3, the bracketed words "and unlawfully" in element 1, and CALCRIM No. 3405, Parental Right to Punish a Child.
Whether the complaining witness suffered a serious bodily injury is a question for the jury to determine. If the defendant disputes that the injury suffered was a serious bodily injury, use the first bracketed paragraph. If the parties stipulate that the injury suffered was a serious bodily injury, use the second bracketed paragraph.
Give the final bracketed paragraph if indirect touching is an issue.
Elements. Pen. Code, §§ 242, 243(d); see People v. Martinez (1970) 3 Cal.App.3d 886, 889 [83 Cal.Rptr. 914] [harmful or offensive touching].
Serious Bodily Injury Defined. Pen. Code, § 243(f)(4); People v. Burroughs (1984) 35 Cal.3d 824, 831 [201 Cal.Rptr. 319, 678 P.2d 894] [serious bodily injury and great bodily injury are essentially equivalent elements], disapproved on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 89 [96 Cal.Rptr.2d 451, 999 P.2d 675]; People v. Taylor (2004) 118 Cal.App.4th 11, 25, fn. 4 [12 Cal.Rptr.3d 693].
Willful Defined. Pen. Code, § 7(1); People v. Lara (1996) 44 Cal.App.4th 102, 107 [51 Cal.Rptr.2d 402].
Defense of Parental Discipline. People v. Whitehurst (1992) 9 Cal.App.4th 1045, 1051 [12 Cal.Rptr.2d 33].
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against the Person, §§ 12-14, 39.
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91, Sentencing, § 91.35 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, § 142.12 (Matthew Bender).
Lesser Included Offenses
Assault. Pen. Code, § 240.
Battery. Pen. Code, § 242.
Assault by means of force likely to produce great bodily injury is not a lesser included offense. (Pen. Code, § 245; In re Jose H. (2000) 77 Cal.App.4th 1090, 1095 [92 Cal.Rptr.2d 228].)
(New January 2006)