960. Simple Battery
The defendant is charged with battery.
To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant willfully [and unlawfully] touched <insert name> in a harmful or offensive manner(;/.)
<Give element 2 when instructing on self-defense, defense of another, or reasonable discipline.>
2. The defendant did not act (in self-defense/ [or] in defense of someone else/ [or] while reasonably disciplining a child).]
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.]
[It is no defense to this crime that the defendant was responding to a provocative act that was not a threat or an attempt to inflict physical injury.] [Words alone, no matter how offensive or exasperating, are not an excuse for this crime.]
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 2, the bracketed words "and unlawfully" in element 1, and any appropriate defense instructions. (See CALCRIM Nos. 3470-3477.)
If there is sufficient evidence of reasonable parental discipline, the court has a sua sponte duty to instruct on the defense. Give bracketed element 2, the bracketed words "and unlawfully" in element 1, and CALCRIM No. 3405, Parental Right to Punish a Child.
Give the bracketed paragraph on indirect touching if that is an issue.
Elements. Pen. Code, § 242; see People v. Martinez (1970) 3 Cal.App.3d 886, 889 [83 Cal.Rptr. 914] [harmful or offensive touching].
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]].
Defense of Parental Discipline. People v. Whitehurst (1992) 9 Cal.App.4th 1045, 1051 [12 Cal.Rptr.2d 33].
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against the Person, §§ 12-15.
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.
Touching of Something Attached to or Closely Connected with Person
The committee could not locate any authority on whether it is sufficient to commit a battery if the defendant touches something attached to or closely connected with the person. Thus, the committee has not included this principle in the instruction.
Battery Against Elder or Dependent Adult
When a battery is committed against an elder or dependent adult as defined in Penal Code section 368, with knowledge that the victim is an elder or a dependent adult, special punishments apply. (Pen. Code, § 243.25.)
(New January 2006)