California Criminal Jury Instructions (CALCRIM) (2017)
946. Battery Against Custodial OfficerDownload PDF
946.Battery Against Custodial Officer (Pen. Code, §§ 242, 243.1)
The defendant is charged [in Count ] with battery against a
custodial officer [in violation of Penal Code section 243.1].
To prove that the defendant is guilty of this crime, the People must
1. <insert offıcer’s name, excluding title> was a
custodial officer performing the duties of a custodial officer;
2. The defendant willfully [and unlawfully] touched
<insert offıcer’s name, excluding title> in a harmful or offensive
3. When the defendant acted, (he/she) knew, or reasonably should
have known, that <insert offıcer’s name, excluding
title> was a custodial officer who was performing (his/her)
<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 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.]
Acustodial officer is someone who works for a law enforcement agency
of a city or county, is responsible for maintaining custody of prisoners,
and helps operate a local detention facility. [A (county jail/city
jail/ <insert description>) is a local detention facility.] [A
custodial officer is not a peace officer.]
New January 2006; Revised April 2011, August 2016
The court has a sua sponte duty to give an instruction deﬁning the elements of the
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].) If lawful
performance is an issue, give the appropriate portions of CALCRIM No. 2671,
Lawful Performance: Custodial Offıcer.
Give the bracketed paragraph on indirect touching if that is an issue.
The jury must determine whether the alleged victim is a custodial officer. (See
People v. Brown (1988) 46 Cal.3d 432, 444–445 [250 Cal.Rptr. 604, 758 P.2d
1135] [discussing deﬁnition of “peace officer”].) The court may instruct the jury on
the appropriate deﬁnition of “custodial officer” from the statute. (Ibid.) However,
the court may not instruct the jury that the alleged victim was a custodial officer as
a matter of. (Ibid.)
If there is a dispute about whether the site of an alleged crime is a local detention
facility, see Penal Code section 6031.4.
• Elements. Pen. Code, §§ 242, 243.1; see In re Rochelle B. (1996) 49
Cal.App.4th 1212, 1221 [57 Cal.Rptr.2d 851] [section 243.1 applies only to
batteries committed against custodial officers in adult penal institutions]; People
v. Martinez (1970) 3 Cal.App.3d 886, 889 [83 Cal.Rptr. 914] [harmful or
• Custodial Officer Deﬁned. Pen. Code, § 831.
• Local Detention Facility Deﬁned. Pen. Code, § 6031.4.
• 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]].
• Statute Constitutional. People v. Wilkinson (2004) 33 Cal.4th 821, 840–841
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 946
[16 Cal.Rptr.3d 420, 94 P.3d 551].
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 13–15, 72–74.
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 on Person Not Conﬁned. Pen. Code, § 243.15.
See the Related Issues sections to CALCRIM No. 960, Simple Battery and
CALCRIM No. 2671, Lawful Performance: Custodial Offıcer.
CALCRIM No. 946 ASSAULTIVE AND BATTERY CRIMES