948. Battery Against Transportation Personnel or Passenger
The defendant is charged [in Count ______] with battery against (a/an) (operator/driver/passenger/station agent/ticket agent) of (a/an) <insert name of vehicle or transportation entity specified in Pen. Code, § 243.3>.
To prove that the defendant is guilty of this crime, the People must prove that:
1. <Insert name> was (a/an) (operator/driver/ station agent/ticket agent/passenger) of (a/an) <insert name of vehicle or transportation entity specified in Pen. Code, § 243.3>;
2. The defendant willfully [and unlawfully] touched <insert name> in a harmful or offensive manner;
<Give element 3 when alleged victim is an operator, driver, station agent, or ticket agent.>
[3. When the defendant acted, <insert name> was performing (his/her) duties as (a/an) (operator/driver/ station agent/ticket agent) of (a/an) <insert name of vehicle or transportation entity specified in Pen. Code, § 243.3>;]
4. When the defendant acted, (he/she) knew, or reasonably should have known, that <insert name> was (a/an) (operator/driver/station agent/ticket agent/passenger) of (a/an) <insert name of vehicle or transportation entity specified in Pen. Code, § 243.3> [and that <insert name> was performing (his/her) duties](;/)
<Give element 5 when the defendant is charged with felony battery based on injury.>
[5. <insert name> suffered an injury as a result of the force used(;/.)]
<Give element 6 when instructing on self-defense or defense of another.>
6. 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.
Making contact with another person, including through his or her clothing, is enough to commit a battery. [The slightest touching can be enough if it is done in a rude or angry way.] [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.]
[An injury is any physical injury that requires professional medical treatment. The question whether an injury requires such treatment cannot be answered simply by deciding whether or not a person sought or received treatment. You may consider those facts, but you must decide this question based on the nature, extent, and seriousness of the injury itself.]
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 6, the bracketed words "and unlawfully" in element 2, and any appropriate defense instructions. (See CALCRIM Nos. 3470-3477.)
If the alleged victim was an operator, driver, station agent, or ticket agent of a statutorily specified vehicle or transportation entity, give bracketed element 3 and the bracketed language in element 4. If the alleged victim was a passenger, omit bracketed element 3 and the bracketed language in element 4.
Give bracketed element 5 and the bracketed definition of "injury" if the defendant is charged with felony battery based on an injury to the alleged victim. (See Pen. Code, § 243.3.)
Give the final bracketed paragraph if indirect touching is an issue.
Elements. Pen. Code, §§ 242, 243.3; see People v. Martinez (1970) 3 Cal.App.3d 886, 889 [83 Cal.Rptr. 914] [harmful or offensive touching].
Injury Defined. Pen. Code, § 243(f)(6); People v. Longoria (1995) 34 Cal.App.4th 12, 17 [40 Cal.Rptr.2d 213].
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]].
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against the Person, §§ 12-14, 20, 72, pp. 645-647, 650-651, 689.
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. Pen. Code, § 242.
If the defendant is charged with felony battery on transportation personnel or passenger based on an injury to the alleged victim, then the misdemeanor battery on the specified victim is a lesser included offense. (See Pen. Code, § 243.3.)
See the Related Issues sections to CALCRIM No. 960, Simple Battery.
(New January 2006)