To prove that the defendant is guilty of this crime, the prosecution must therefore prove that (1) the defendant willfully touched the victim in a harmful or offensive manner, (2) the defendant was confined in a state prison, and (3) the victim was not confined in a state prison. (People v. Flores (2009) 176 Cal.App.4th 924, 930-931; CALCRIM No. 2723.) In regard to the first element, “the touching can be done indirectly by causing an object to touch the other person, and … the slightest touching can constitute a battery.”
(CALCRIM No. 2723.)” (People v. Flores (2009) 176 Cal.App.4th 924, 930 (Flores).) The jury here was instructed with CALCRIM No. 2723, which “explains that the touching can be done indirectly by causing an object to touch the other person, and that the slightest touching can constitute a battery.
The California Court of Appeal held that the force may be applied directly (such as punching) or ‘indirectly by causing an object to touch the other person.” Dealba v. People of the State of Calif., 2019 WL 7865050, at *6 (C.D. Cal. Dec. 16, 2019); see also People v. Flores, 176 Cal.App.4th 924, 931 (2009) (battery committed by spitting in guard's face).
The elements of a violation of this section are: (1) The defendant was confined in a state prison; (2) while confined, the defendant willfully touched the victim in a harmful or offensive manner; and (3) the victim was not confined in a state prison." (People v. Flores (2009) 176 Cal.App.4th 924, 930-931, fn. omitted.)"[A]n offensive touching, although it inflicts no bodily harm, may nonetheless constitute a battery ...."
The elements of battery on a nonconfined person are "(1) [t]he defendant was confined in a state prison; (2) while confined, the defendant willfully touched the victim in a harmful or offensive manner; and (3) the victim was not confined in a state prison." (People v. Flores (2009) 176 Cal.App.4th 924, 930-931.) The cases on which Hughley relies are inapposite because they involve offenses in which an officer's lawful performance of his or her duties is an element of the crime.
To find a prisoner guilty of battery of a nonconfined person under Penal Code section 4501.5, the jury must determine beyond a reasonable doubt that: (1) the prisoner willfully touched the victim in a harmful or offensive manner; (2) when the prisoner acted, he or she was serving a sentence in state prison; and (3) the victim was not serving a sentence in state prison. (CALCRIM No. 2723; see People v. Flores (2009) 176 Cal.App.4th 924, 930-931.) Defendant argues his body's positioning and the fact that he vomited during the altercation demonstrate any touching of Officer Avila was not willful beyond a reasonable doubt because it was "attributable either to the three people in control of his arms or by his body's involuntary gastric evacuation."
These cases, and Penal Code section 4501.1, however, apply to prisoners in state prison who fling bodily fluids on prison guards. (See People v. Flores (2009) 176 Cal.App.4th 924.) This case involves simple battery under Penal Code section 242, or assault under Penal Code section 240, and whether Sergeant Martin had probable cause to believe J.F. had committed simple battery (or assault) on her high school principal.
[Citations.] Or it may be indirectly applied, e.g., by forcing a person to jump from a window or vehicle. [Citations.]” (1 Witkin & Epstein, Cal.Criminal Law (4th ed. 2012) Crimes Against the Person, § 14, p. 805; see, e.g., People v. Flores (2009) 176 Cal.App.4th 924, 931, 97 Cal.Rptr.3d 924 battery by prisoner (§ 4501.5) was committed when defendant spat in guard's face because “the touching can be done indirectly by causing an object to touch the other person, and ... the slightest touching can constitute a battery”; People v. Duchon (1958) 165 Cal.App.2d 690, 692–693, 332 P.2d 373 [defendant committed battery when he threw electric garden shears at victim, who was cut on the arm by blades of the shears and hit on the head by the handle of the shears]; see also CALCRIM No. 960 [alternative instructional language for battery elements reads: “The touching can be done indirectly by causing an object [or someone else] to touch the other person.”].) b. Discussion.
The elements of a violation of section 4501.5 are: (1) The defendant was confined in a state prison; (2) while confined, the defendant willfully touched the victim in a harmful or offensive manner; and (3) the victim was not confined in a state prison. (People v. Flores (2009) 176 Cal.App.4th 924, 930, citing CALCRIM No. 2723.) Section 4501.5 is often thought of as battery committed in prison, by a prisoner, against a nonprisoner.
Defendant's prior convictions and the charged offense were for violations of section 4501.5, which is violated when a person who is "confined in a state prison of this state ... commits a battery upon the person of any individual who is not himself a person confined ...." A violation of section 4501.5 is often described as battery by a prisoner on a correctional officer. (See, e.g., People v. Robinson, supra, 199 Cal.App.4th at p. 709; People v. Jefferson (2004) 119 Cal.App.4th 508, 510; People v. Flores (2009) 176 Cal.App.4th 924, 930-931.) Defendant committed the prior violations in 2007, while he was confined in state prison, and he was convicted and sentenced in 2009.