Criminal Law

946. Battery Against Custodial Officer

The defendant is charged [in Count ______] with battery against a custodial 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 custodial officer performing the duties of a custodial officer;

2. The defendant willfully [and unlawfully] touched <insert officer'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 officer's name, excluding title> was a custodial 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 custodial 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.]

<When lawful performance is an issue, give the following paragraph and Instruction 2671, Lawful Performance: Custodial Officer.>

[A custodial officer is not lawfully performing his or her duties if he or she is using unreasonable or excessive force in his or her duties. Instruction 2671 explains when force is unreasonable or excessive.]

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 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 bracketed paragraph on lawful performance and the appropriate portions of CALCRIM No. 2671, Lawful Performance: Custodial Officer.

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 offensive touching].

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 [16 Cal.Rptr.3d 420, 94 P.3d 551].

Secondary Sources

1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against the Person, §§ 12-14, 67.

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, § 4131.5.

Related Issues

See the Related Issues sections to CALCRIM No. 960, Simple Battery and CALCRIM No. 2671, Lawful Performance: Custodial Officer.

(New January 2006)