California Criminal Jury Instructions (CALCRIM) (2017)

949. Battery Against School Employee

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949.Battery Against School Employee (Pen. Code, §§ 242, 243.6)
The defendant is charged [in Count ] with battery against a
school employee [in violation of Penal Code section 243.6].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. <Insert name> was a school employee;
2. The defendant willfully [and unlawfully] touched
<insert name> in a harmful or offensive manner;
<Alternative 3A—performing duties>
[3. When the defendant acted, <insert name> was
performing (his/her) duties as a school employee;]
<Alternative 3B—retaliation>
[3. When the defendant acted, (he/she) was retaliating against
<insert name> because of something
<insert name> had done while performing (his/her) duties as a
school employee;]
[AND]
4. When the defendant acted, (he/she) knew, or reasonably should
have known, that <insert name> was a school
employee(;/.)
<Give element 5 when the defendant is charged with felony battery
based on injury.>
[AND]
[5. <insert name> suffered injury as a result of the
force used(;/.)]
<Give element 6 when instructing on self-defense or defense of another.>
[AND
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
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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.]
[It is not a defense that the touching occurred off campus or outside
regular school hours.]
Aschool employee is any person employed as a permanent or
probationary certificated or classified employee of a school district on a
part-time or full-time basis, including a substitute teacher, student
teacher, or school board member.
[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.]
New January 2006
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 6, the bracketed
words “and unlawfully” in element 2, and any appropriate defense instructions.
(See CALCRIM Nos. 3470–3477.)
Give alternative 3A or 3B, depending on whether there is evidence that the
defendant used force while the employee was performing job duties or used force
in retaliation for something the employee previously did while performing job
duties. (See Pen. Code, § 243.6.)
Give element 5 and the bracketed definition of “injury” if the defendant is charged
with a felony based on an injury to the alleged victim. (See Pen. Code, § 243.6.)
Give the bracketed paragraph on touching if indirect touching is an issue.
AUTHORITY
• Elements. Pen. Code, §§ 242, 243.6; 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].
• School Employee Defined. Pen. Code, § 245.5(d).
CALCRIM No. 949 ASSAULTIVE AND BATTERY CRIMES
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• 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]].
Secondary Sources
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against the
Person, §§ 12–14, 73.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, § 142.12; Ch. 144, Crimes Against Order, § 144.02
(Matthew Bender).
LESSER INCLUDED OFFENSES
• Assault. Pen. Code, § 240.
Battery. Pen. Code, § 242.
If the defendant is charged with felony battery on a school employee based on an
injury to the alleged victim, then the misdemeanor battery on the specified victim is
a lesser included offense. (See Pen. Code, § 243.6.)
RELATED ISSUES
See the Related Issues sections to CALCRIM No. 960, Simple Battery.
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 949
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