California Criminal Jury Instructions (CALCRIM) (2017)

945. Battery Against Peace Officer

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(iii) On Specified Person or in Specified Location
945.Battery Against Peace Officer (Pen. Code, §§ 242, 243(b),
(c)(2))
The defendant is charged [in Count ] with battery against a
peace officer [in violation of Penal Code section 243].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. <Insert offıcer’s name, excluding title> was a peace
officer performing the duties of (a/an) <insert title
of peace offıcer specified in Pen. Code, § 830 et seq.>;
2. The defendant willfully [and unlawfully] touched
<insert offıcer’s name, excluding title> in a harmful or offensive
manner;
[AND]
3. When the defendant acted, (he/she) knew, or reasonably should
have known, that <insert offıcer’s name, excluding
title> was a peace officer who was performing (his/her) duties(;/.)
<Give element 4 when instructing on felony battery against a peace
offıcer.>
[AND
4. <insert offıcer’s name, excluding title> suffered
injury as a result of the touching(;/.)]
<Give element 5 when instructing on self-defense or defense of another.>
[AND
5. 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.
<Do not give this paragraph when instructing on felony battery against a
peace offıcer.>
[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.]
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<Give this definition when instructing on felony battery against a peace
offıcer.>
[An injury is any physical injury that requires professional medical
treatment. The question whether an injury requires such treatment
cannot be answered simply by deciding whether or not a person sought
or received treatment. You may consider those facts, but you must
decide this question based on the nature, extent, and seriousness of the
injury itself.]
[The touching can be done indirectly by causing an object [or someone
else] to touch the other person.]
[A person who is employed as a police officer by <insert
name of agency that employs police offıcer> is a peace officer.]
[A person employed by <insert name of agency that employs
peace offıcer, e.g., “the Department of Fish and Wildlife”> is a peace
officer if <insert description of facts necessary to make
employee a peace offıcer, e.g., “designated by the director of the agency as
a peace offıcer”>.]
[The duties of a <insert title of offıcer> include
<insert job duties>.]
[It does not matter whether <insert offıcer’s name, excluding
title> was actually on duty at the time.]
[A <insert title of peace offıcer specified in Pen. Code, § 830
et seq.> is also performing the duties of a peace officer if (he/she) is in a
police uniform and performing the duties required of (him/her) as a
peace officer and, at the same time, is working in a private capacity as a
part-time or casual private security guard or (patrolman/patrolwoman).]
New January 2006; Revised August 2006, December 2008, October 2010
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 5, the bracketed
words “and unlawfully” in element 2, and any appropriate defense instructions.
(See CALCRIM Nos. 3470–3477.)
In addition, the court has a sua sponte duty to instruct on defendant’s reliance on
self-defense as it relates to the use of excessive force. (People v. White (1980) 101
Cal.App.3d 161, 167–168 [161 Cal.Rptr. 541].) If excessive force is an issue, the
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court has a sua sponte duty to instruct the jury that the defendant is not guilty of
the offense charged, or any lesser included offense in which lawful performance is
an element, if the defendant used reasonable force in response to excessive force.
(People v. Olguin (1981) 119 Cal.App.3d 39, 46–47 [173 Cal.Rptr. 663].) On
request, the court must instruct that the prosecution has the burden of proving the
lawfulness of the arrest beyond a reasonable doubt. (People v. Castain (1981) 122
Cal.App.3d 138, 145 [175 Cal.Rptr. 651].) If lawful performance is an issue, give
the appropriate portions of CALCRIM No. 2670, Lawful Performance: Peace
Offıcer. In addition, give CALCRIM No. 2672, Lawful Performance: Resisting
Unlawful Arrest With Force, if requested.
Give the bracketed paragraph on indirect touching if that is an issue.
The jury must determine whether the alleged victim is a peace officer. (People v.
Brown (1988) 46 Cal.3d 432, 444–445 [250 Cal.Rptr. 604, 758 P.2d 1135].) The
court may instruct the jury on the appropriate definition of “peace officer” from the
statute (e.g., “a Garden Grove Regular Police Officer and a Garden Grove Reserve
Police Officer are peace officers”). (Ibid.) However, the court may not instruct the
jury that the alleged victim was a peace officer as a matter of law (e.g., “Officer
Reed was a peace officer”). (Ibid.) If the alleged victim is a police officer, give the
bracketed sentence that begins with “A person employed as a police officer.” If the
alleged victim is another type of peace officer, give the bracketed sentence that
begins with “A person employed by.”
The court may give the bracketed sentence that begins, “The duties of a
<insert title . . .> include,” on request. The court may insert a
description of the officer’s duties such as “the correct service of a facially valid
search warrant.” (People v. Gonzalez (1990) 51 Cal.3d 1179, 1222 [275 Cal.Rptr.
729, 800 P.2d 1159].)
Give the bracketed language about a peace officer working in a private capacity if
relevant. (Pen. Code, § 70.)
AUTHORITY
• Elements. Pen. Code, §§ 242, 243(b), (c)(2); see People v. Martinez (1970) 3
Cal.App.3d 886, 889 [83 Cal.Rptr. 914] [harmful or offensive touching].
• Peace Officer Defined. Pen. Code, § 830 et seq.
• Willful Defined. Pen. Code, § 7(1); People v. Lara (1996) 44 Cal.App.4th 102,
107 [51 Cal.Rptr.2d 402].
• Physical Injury Defined. Pen. Code, § 243(f)(5); People v. Longoria (1995) 34
Cal.App.4th 12, 17–18 [40 Cal.Rptr.2d 213].
• Least Touching. People v. Myers (1998) 61 Cal.App.4th 328, 335 [71
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]].
Secondary Sources
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against the
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Person, § 5.
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.
Assault on Specified Victim. Pen. Code, § 241(b).
• Battery. Pen. Code, § 242.
• Misdemeanor Battery on Specified Victim. Pen. Code, § 243(b).
• Resisting Officer. Pen. Code, § 148.
RELATED ISSUES
See the Related Issues sections to CALCRIM No. 960, Simple Battery and 2670,
Lawful Performance: Peace Offıcer.
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