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
New January 2006; Revised March 2017
The court has a sua sponte duty to give this instruction deﬁning the elements of
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].)
• 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]].
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