947. Simple Battery on Military Personnel
The defendant is charged [in Count ______] with battery against a member of the United States Armed Forces.
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;
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.>
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;
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.
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.)
Elements. Pen. Code, § 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]].
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against the Person, § 19.
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.
Simple Battery. Pen. Code, §§ 242, 243(a).
See the Related Issues section of CALCRIM No. 960, Simple Battery.
(New January 2006)