945. Battery Against Peace Officer
The defendant is charged [in Count ______] with battery against a peace officer.
To prove that the defendant is guilty of this crime, the People must prove that:
1. <Insert officer's name, excluding title> was a peace officer performing the duties of (a/an) <insert title of peace officer specified in Pen. Code, § 830 et seq.>;
2. The defendant willfully [and unlawfully] touched <insert officer's name, excluding title> in a harmful or offensive manner;
3. When the defendant acted, (he/she) knew, or reasonably should have known, that <insert officer's name, excluding title> was a peace officer who was performing (his/her) duties(;/.)
<Give element 4 when instructing on self-defense or defense of another.>
4. 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.]
[A person who is employed as a police officer by <insert name of agency that employs police officer> is a peace officer.]
[A person employed by <insert name of agency that employs peace officer, e.g., "the Department of Fish and Game"> is a peace officer if <insert description of facts necessary to make employee a peace officer, e.g., "designated by the director of the agency as a peace officer">.]
[The duties of a <insert title of officer> include <insert job duties>.]
[It does not matter whether <insert officer's name, excluding title> was actually on duty at the time.]
[A <insert title of peace officer 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).]
<When lawful performance is an issue, give the following paragraph and Instruction 2670, Lawful Performance: Peace Officer.>
[A peace officer is not lawfully performing his or her duties if he or she is (unlawfully arresting or detaining someone/ [or] using unreasonable or excessive force in his or her duties). Instruction 2670 explains (when an arrest or detention is unlawful/ [and] when force is unreasonable or excessive).]
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 4, 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 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 bracketed paragraph on lawful performance and the appropriate portions of CALCRIM No. 2670, Lawful Performance: Peace Officer. 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.)
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].
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]].
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against the 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.
See the Related Issues sections to CALCRIM No. 960, Simple Battery and 2670, Lawful Performance: Peace Officer.
(New January 2006)