CALCRIM No. 2723

The defendant is charged [in Count] with battery on someone

who was not a prisoner [in violation of Penal Code section 4501.5].

To prove that the defendant is guilty of this crime, the People must

prove that:

1. The defendant willfully touched <insert name of

person allegedly battered, excluding title of law enforcement agent>

in a harmful or offensive manner;

2. When (he/she) acted, the defendant was serving a sentence in a

[California] state prison;

[AND]

3. <insert name of person allegedly battered, excluding

title of law enforcement agent> was not serving a sentence in state

prison(;/.)

<Give element 4 when self-defense or defense of another is an issue

raised by the evidence.>

[AND

4. 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.

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/ [or] by touching something held by or

attached to the other person).]

A person is serving a sentence in a state prison if he or she is (confined in

<insert name of institution from Pen. Code,

§ 5003>/committed to the Department of (Corrections and

Rehabilitation, Division of Juvenile Justice/Corrections and

Rehabilitation)) by an order made according to law[, regardless of both

the purpose of the (confinement/commitment) and the validity of the

order directing the (confinement/commitment), until a judgment of a

competent court setting aside the order becomes final]. [A person may be

serving a sentence in a state prison even if, at the time of the offense, he

or she is confined in a local correctional institution pending trial or is

temporarily outside the prison walls or boundaries for any permitted

purpose, including but not limited to serving on a work detail.]

[However, a prisoner who has been released on parole is not serving a

sentence in a state prison.]

<When lawful performance is an issue, give the following paragraph and

Instruction 2671, Lawful Performance: Custodial Offıcer .>

[A custodial officer is not lawfully performing his or her duties if he or

she is using unreasonable or excessive force in his or her duties.

Instruction 2671 explains when force is unreasonable or excessive.]

New January 2006; Revised August 2016, March 2017, February 2025