Section 2722 | CALCRIM (Jury Instructions)

* Denotes changes only to bench notes and other commentaries.
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
If the battery is charged under Penal Code section 4501.1, in element 1, use the
phrase “serving a sentence in state prison” and the bracketed definition of this
phrase. If the battery is charged under Penal Code section 243.9, in element 1, give
the language referencing a “local detention facility” and the bracketed definition of
local detention facility.
When giving the definition of “serving a sentence in a state prison,” give the
bracketed portion that begins “regardless of the purpose,” or the bracketed second or
third sentence, if requested and relevant based on the evidence.
The jury must determine whether the alleged victim was a peace officer. (People v.
Flood (1998) 18 Cal.4th 470, 482 [76 Cal.Rptr.2d 180, 957 P.2d 869].) The court
must instruct the jury in the appropriate definition of “peace officer” from the
statute. (Ibid.) It is error for the court to instruct that the witness is a peace officer
as a matter of law. (Ibid. [instruction that “Officer Bridgeman and Officer Gurney
are peace officers” was error].)
AUTHORITY
•
Elements. Pen. Code, §§ 242, 243.9, 4501.1.
•
“Confined in State Prison” Defined. Pen. Code, § 4504.
•
“Local Detention Facility” Defined. Pen. Code, § 6031.4.
•
Employee of Local Detention Facility Includes County Employee Assigned to
Work in County Jail. People v. Tice (2023) 89 Cal.App.5th 246, 255 [305
Cal.Rptr.3d 794].
LESSER INCLUDED OFFENSES
•
Battery by Prisoner on Non-Prisoner. People v. Flores (2009) 176 Cal.App.4th
924, 929 [97 Cal.Rptr.3d 924].
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 13–15, 62.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.12 (Matthew Bender).
CRIMES AGAINST GOVERNMENT
CALCRIM No. 2722
617