CALCRIM No. 935. Sexual Battery: Felony (Pen. Code, §§ 242, 243.4(a) & (d))
Judicial Council of California Criminal Jury Instructions (2023 edition)
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(ii) Sexual Battery
935.Sexual Battery: Felony (Pen. Code, §§ 242, 243.4(a) & (d))
The defendant is charged [in Count ] with sexual battery [in
violation of Penal Code section 243.4].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant [or an accomplice] unlawfully restrained
<insert name of complaining witness>;
<Alternative 2A - defendant touched>
[2. While <insert name of complaining witness> was
restrained, the defendant touched an intimate part of
<insert name of complaining witness>;]
<Alternative 2B - caused complaining witness to touch>
[2. While <insert name of complaining witness> was
restrained, the defendant (caused <insert name of
complaining witness> to touch (his/her) own intimate part/ [or]
caused <insert name of complaining witness> to touch
the intimate part of defendant [or someone else]);]
3. The touching was done against ’s <insert name of
complaining witness> will;
AND
4. The touching was done for the specific purpose of sexual arousal,
sexual gratification, or sexual abuse.
An intimate part is a female’s breast or the anus, groin, sexual organ or
buttocks of anyone.
Contact must have been made with ’s <insert name of
complaining witness> bare skin. This means that:
1. The defendant must have touched the bare skin of ’s
<insert name of complaining witness> intimate part;
OR
2. ’s <insert name of complaining witness> bare skin
must have touched the defendant’s [or ’s <insert
name or description of third person>] intimate part either directly
or through (his/her) clothing.
Someone is unlawfully restrained when his or her liberty is controlled by
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words, acts, or authority of another and the restraint is against his or
her will. Unlawful restraint requires more than just the physical force
necessary to accomplish the sexual touching. [A person does not
unlawfully restrain someone if he or she only uses lawful authority for a
lawful purpose.]
[A touching is done against a person’s will if that person does not consent
to it. To consent, a person must act freely and voluntarily and know the
nature of the touching.]
[A person is an accomplice if he or she is subject to prosecution for the
identical crime charged against the defendant. Someone is subject to
prosecution if he or she personally committed the crime or if:
1. He or she knew of the criminal purpose of the person who
committed the crime;
AND
2. He or she intended to, and did in fact, (aid, facilitate, promote,
encourage, or instigate the commission of the crime/ [or]
participate in a criminal conspiracy to commit the crime).]
<Defense: Reasonable Belief in Consent>
[The defendant is not guilty of sexual battery if (he/she) actually and
reasonably, even if mistakenly, believed that the other person consented
to the touching [and actually and reasonably believed that (he/she)
consented throughout the act of touching]. The People have the burden
of proving beyond a reasonable doubt that the defendant did not
actually and reasonably believe that the other person consented. If the
People have not met this burden, you must find the defendant not
guilty.]
New January 2006; Revised February 2016
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
The court has a sua sponte duty to instruct on the defense of mistaken but honest
and reasonable belief in consent if there is substantial evidence of equivocal conduct
that would have led a defendant to reasonably and in good faith believe consent
existed where it did not. (See People v. Andrews (2015) 234 Cal.App.4th 590, 602
[184 Cal.Rptr.3d 183]; following People v. Williams (1992) 4 Cal.4th 354, 362 [14
Cal.Rptr.2d 441, 841 P.2d 961]; People v. Mayberry (1975) 15 Cal.3d 143, 153-158
[125 Cal.Rptr. 745, 542 P.2d 1337].)
Give either alternative 2A or 2B depending on the evidence in the case. The
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committee has concluded that the direct touching requirement for felony sexual
battery is satisfied when (1) the defendant forces the alleged victim to touch the
defendant’s intimate parts through the defendant’s clothing with the alleged victim’s
bare skin; (2) the defendant forces the alleged victim to touch any part of the
defendant with the victim’s unclothed intimate part, whether the defendant’s body is
clothed or not; or (3) the defendant touches the alleged victim’s bare intimate part
either directly or through clothing. If a defendant is only charged under Penal Code
section 243.4(a), the defendant must touch the victim’s intimate part, not the other
way around. (People v. Elam (2001) 91 Cal.App.4th 298, 309-310 [110 Cal.Rptr.2d
185].)
The committee omitted the word “masturbate” from the elements because the plain
language of Penal Code section 243.4(d) requires only that the victim be compelled
to touch him-or herself, and a further finding of whether that act of touching was
actually masturbation is unnecessary.
Give the bracketed definition of “against a person’s will” on request.
If the court gives the bracketed phrase “or an accomplice” in element 1, the court
must also give the bracketed definition of “accomplice.” (People v. Verlinde (2002)
100 Cal.App.4th 1146, 1167-1168 [123 Cal.Rptr.2d 322].) Additional paragraphs
providing further explanation of the definition of “accomplice” are contained in
CALCRIM No. 334, Accomplice Testimony Must Be Corroborated: Dispute Whether
Witness Is Accomplice. The court should review that instruction and determine
whether any of these additional paragraphs should be given.
AUTHORITY
• Elements. Pen. Code, §§ 242, 243.4(a) & (d).
• Intimate Part. Pen. Code, § 243.4(g)(1).
• Touches Defined. Pen. Code, § 243.4(f).
• Otherwise Lawful Restraint for Unlawful Purpose. People v. Alford (1991) 235
Cal.App.3d 799, 803-804 [286 Cal.Rptr. 762].
• Sexual Abuse Defined. People v. White (1986) 179 Cal.App.3d 193, 205 [224
Cal.Rptr. 467] [discussing Pen. Code, § 289].
• Specific Intent Crime. People v. Chavez (2000) 84 Cal.App.4th 25, 29 [100
Cal.Rptr.2d 680].
• Caused to Masturbate. People v. Reeves (2001) 91 Cal.App.4th 14, 50 [109
Cal.Rptr.2d 728].
• Accomplice Defined. See Pen. Code, § 1111; People v. Verlinde (2002) 100
Cal.App.4th 1146, 1167-1168 [123 Cal.Rptr.2d 322]; People v. Stankewitz (1990)
51 Cal.3d 72, 90-91 [270 Cal.Rptr. 817, 793 P.2d 23].
LESSER INCLUDED OFFENSES
• Assault. Pen. Code, § 240.
• Misdemeanor Sexual Battery. Pen. Code, § 243.4(e)(1).
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COMMENTARY
In a case addressing the meaning of “for the purpose of . . . sexual abuse” in the
context of Penal Code section 289, one court stated, “when a penetration is
accomplished for the purpose of causing pain, injury or discomfort, it becomes
sexual abuse, even though the perpetrator may not necessarily achieve any sexual
arousal or gratification whatsoever.” (People v. White (1986) 179 Cal.App.3d 193,
205 [224 Cal.Rptr. 467].) If the court concludes it this reasoning applies to the
crime sexual battery and a party requests a definition of “sexual abuse,” the
following language can be used:
Sexual abuse means any touching of a person’s intimate parts in order to cause
pain, injury, or discomfort. The perpetrator does not need to achieve any sexual
arousal or sexual gratification.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 26, 81-83.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.22[1] (Matthew Bender).
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© Judicial Council of California.
