California Criminal Jury Instructions (CALCRIM) (2017)

947. Simple Battery on Military Personnel

Download PDF
947.Simple Battery on Military Personnel (Pen. Code, §§ 242,
243.10)
The defendant is charged [in Count ] with battery against a
member of the United States Armed Forces [in violation of Penal Code
section 243.10].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant willfully [and unlawfully] touched
<insert name of complaining witness> in a harmful or offensive
manner;
2. <insert name of complaining witness> was a member
of the United States Armed Forces at the time of the touching;
[AND]
3. The defendant knew <insert name of complaining
witness> was a member of the United States Armed Forces and
touched <insert name of complaining witness> in a
harmful or offensive manner because of <insert
name of complaining witness>’s service(;/.)
<Give element 4 when instructing on self-defense or defense of another.>
[AND
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<insert description, e.g., “private in the United States
Army”> is a member of the United States Armed Forces.
A person commits a battery because of someone’s service in the armed
forces if:
1. He or she is biased against the person battered based on that
person’s military service;
663
0151
AND
2. That bias caused him or her to commit the alleged battery.
If the defendant had more than one reason to commit the alleged
battery, the bias described here must have been a substantial motivating
factor. A substantial factor is more than a trivial or remote factor.
However, it does not need to be the only factor that motivated the
battery.
New January 2006; Revised March 2017
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this 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 3 and any
appropriate defense instructions. (See CALCRIM Nos. 3470–3477.)
Give the bracketed paragraph on indirect touching if that is an issue.
The jury must determine whether the alleged victim is a member of the armed
forces. (See 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
“member of the armed forces.” However, the court may not instruct the jury that
the alleged victim was a member of the armed forces as a matter of law. (Ibid.)
Do not give CALCRIM No. 370, Motive, with this instruction because motive is an
element of this crime. (See People v. Valenti (2016) 243 Cal.App.4th 1140, 1165
[197 Cal.Rptr.3d 317]; People v. Maurer (1995) 32 Cal.App.4th 1121, 1126–1127
[38 Cal.Rptr.2d 335].)
AUTHORITY
• Elements. Pen. Code, §§ 242, 243.10.
Willfully Defined. Pen. Code, § 7, subd. 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]].
Secondary Sources
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, § 19.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, § 142.12 (Matthew Bender).
CALCRIM No. 947 ASSAULTIVE AND BATTERY CRIMES
664
0152
LESSER INCLUDED OFFENSES
• Assault. Pen. Code, § 240.
• Simple Battery. Pen. Code, §§ 242, 243(a).
RELATED ISSUES
See the Related Issues section of CALCRIM No. 960, Simple Battery.
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 947
665
0153