medical treatment facility, nursing home, acute care facility, or mental
[Someone is seriously disabled if he or she has severe physical or sensory
[Someone is medically incapacitated if he or she is incapacitated because
of prescribed sedatives, anesthesia, or other medication.]
[An act is done against a person’s will if that person does not consent to
the act. In order to consent,a person must act freely and voluntarily
and know the nature of the act.]
New January 2006
The court has a sua sponte duty to give an instruction deﬁning the elements of the
Give either alternative 2A or 2B depending on the evidence in the case. The
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
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.
• Elements. Pen. Code, §§ 242, 243.4(b) & (d).
•Institutionalized. Pen. Code, § 243.4(g)(5).
• Intimate Part. Pen. Code, § 243.4(g)(1).
• Medically Incapacitated. Pen. Code, § 243.4(g)(4).
• Seriously Disabled. Pen. Code, § 243.4(g)(3).
• Touches Deﬁned. Pen. Code, § 243.4(f).
CALCRIM No. 936 ASSAULTIVE AND BATTERY CRIMES