Instruction 1300 [Battery—Essential Factual Elements]:
The plaintiff claims that the defendant committed a battery. To establish this claim, the plaintiff must prove all of the following:
1. That the defendant touched the plaintiff [or caused the plaintiff to be touched] with the intent to harm or offend her;
2. That the plaintiff did not consent to the touching; [and]
3. That the plaintiff was harmed [or offended] by the defendant’s conduct[./; and]
[4. That a reasonable person in the plaintiff’s situation would have been offended by the touching.]
Instruction 1301 [Assault—Essential Factual Elements]:
The plaintiff claims that the defendant assaulted her. To establish this claim, the plaintiff must prove all of the following:
[1. That the defendant acted, intending to cause harmful [or offensive] contact;
2. That the plaintiff reasonably believed that she was about to be touched in a harmful [or an offensive] manner;]
[or]
[1. That the defendant threatened to touch the plaintiff in a harmful [or an offensive] manner;
2. That it reasonably appeared to the plaintiff that the defendant was about to carry out the threat;]
3. That the plaintiff did not consent to the defendant’s conduct;
4. That the plaintiff was harmed; and
5. That the defendant’s conduct was a substantial factor in causing the plaintiff’s harm.
A touching is offensive if it offends a reasonable sense of personal dignity.
Words alone do not amount to an assault.
Instruction 1302 [Consent Explained]:
A plaintiff may express consent by words or acts that are reasonably understood by another person as consent.
A plaintiff may also express consent by silence or inaction if a reasonable person would understand that the silence or inaction intended to indicate consent.
Instruction 1303 [Invalid Consent]:
The plaintiff claims that her consent was obtained by fraud/mistake/duress or was obtained as a result of her incapacity or that the defendant’s conduct went beyond the scope of his limited consent.
If the plaintiff proves that her consent was [ground for vitiating consent, e.g., “obtained by fraud,” “exceeded”], then you must find that she did not consent.
Instruction 1304 [Affirmative Defense—Self-Defense/Defense of Others]:
The defendant claims that he is not responsible for the plaintiff’s harm because he was acting in self-defense/defense of another. To succeed, the defendant must prove both of the following:
1. That the defendant reasonably believed that the plaintiff was going to harm him; and
2. That the defendant used only the amount of force that was reasonably necessary to protect himself or the other person[s].
Instruction 1305A [Battery by Law Enforcement Officer (Nondeadly Force)—Essential Factual Elements]:
The plaintiff claims that the defendant harmed her by using unreasonable force to arrest or detain her, to prevent her escape, or overcome her resistance. To establish this claim, the plaintiff must prove all of the following:
1. That the defendant intentionally touched the plaintiff [or caused the plaintiff to be touched];
2. That the defendant used unreasonable force on the plaintiff;
3. That the plaintiff did not consent to the use of that force;
4. That the plaintiff was harmed; and
5. That the defendant’s use of unreasonable force was a substantial factor in causing the plaintiff’s harm.
A officer may use reasonable force to arrest, detain, prevent the escape of, or overcome the resistance of a person when the officer has reasonable cause to believe that that person has committed a crime. [Even if the officer is mistaken, a person being arrested or detained has a duty not to use force to resist the officer unless the officer is using unreasonable force.]
In deciding whether the defendant used unreasonable force, you must consider the totality of the circumstances and determine what amount of force a reasonable officer in the defendant’s position would have used under the same or similar circumstances. “Totality of the circumstances” means all facts known to the officer at the time, including the conduct of the defendant and the plaintiff leading up to the use of force. You should consider, among other factors, the following:
(a) Whether the plaintiff reasonably appeared to pose an immediate threat to the safety of the defendant or others;
(b) The seriousness of the crime at issue; and
(c) Whether the plaintiff was actively resisting arrest or detention or attempting to evade arrest or detention.
An officer who makes or attempts to make an arrest does not have to retreat or stop because the person being arrested resists or threatens to resist. Tactical repositioning or other deescalation tactics are not retreat. An officer does not lose the right to self-defense by using objectively reasonable force to arrest, detain, prevent escape, or overcome resistance.
Instruction 1305B [Battery by Peace Officer (Deadly Force)—Essential Factual Elements]:
A peace officer may use deadly force only when necessary in defense of human life. The plaintiff claims that the defendant unnecessarily used deadly force on her. To establish this claim, the plaintiff must prove all of the following:
1. That the defendant intentionally touched the plaintiff or the decedent [or caused the plaintiff or the decedent to be touched];
2. That the defendant used deadly force on the plaintiff or the decedent;
3. That the defendant’s use of deadly force was not necessary to defend human life;
4. That the plaintiff or the decedent was harmed or killed; and
5. That the defendant’s use of deadly force was a substantial factor in causing the plaintiff or the decedent’s harm or death.
The defendant’s use of deadly force was necessary to defend human life only if a reasonable officer in the same situation would have believed, based on the totality of the circumstances known to or perceived by the defendant at the time, that deadly force was necessary to: defend against an imminent threat of death or serious bodily harm to the defendant [or to another person], or apprehend a fleeing person for a felony, when all of the following conditions are present: The felony threatened or resulted in death or serious bodily injury to another; the defendant reasonably believed that the person fleeing would cause death or serious bodily injury to another unless immediately apprehended; and, if practical under the circumstances, the defendant made reasonable efforts to identify himself as a peace officer and to warn that deadly force would be used, unless the officer had objectively reasonable grounds to believe the person is aware of those facts.
A peace officer must not use deadly force against persons based only on the danger those persons pose to themselves, if an objectively reasonable officer would believe the person does not pose an imminent threat of death or serious bodily injury to the peace officer or to another person.
A person being arrested or detained has a duty not to use force to resist the peace officer unless the peace officer is using unreasonable force.
“Deadly force” means any use of force that creates a substantial risk of causing death or serious bodily injury, including, but not limited to, the discharge of a firearm.
A threat of death or serious bodily injury is “imminent” when, based on the totality of the circumstances, a reasonable officer in the same situation would believe that a person has the present ability, opportunity, and apparent intent to immediately cause death or serious bodily injury to the peace officer or another person. An imminent harm is not merely a fear of future harm, no matter how great the fear and no matter how great the likelihood of the harm, but is one that, from appearances, must be instantly confronted and addressed.
“Totality of the circumstances” means all facts known to the peace officer at the time, including the conduct of the defendant and the plaintiff [or the decedent] leading up to the use of deadly force. In determining whether the defendant’s use of deadly force was necessary in defense of human life, you must consider the defendant’s tactical conduct and decisions before using deadly force on the plaintiff [or the decedent] and whether the defendant used other available resources and techniques as [an] alternative[s] to deadly force, if it was reasonably safe and feasible to do so. [You must also consider whether the defendant knew or had reason to know that the person against whom he used force was suffering from a physical, mental health, developmental, or intellectual disability [that may have affected the person’s ability to understand or comply with commands from the officer[s]].]
[A peace officer who makes or attempts to make an arrest does not have to retreat or stop because the person being arrested is resisting or threatening to resist. Tactical repositioning or other deescalation tactics are not retreat. A peace officer does not lose the right to self-defense by use of objectively reasonable force to effect the arrest or to prevent escape or to overcome resistance. A peace officer does, however, have a duty to use reasonable tactical repositioning or other deescalation tactics.]
Instruction 1306 [Sexual Battery—Essential Factual Elements (Civ. Code, § 1708.5)]:
The plaintiff claims that the defendant committed a sexual battery. To establish this claim, the plaintiff must prove the following:
1. [(a) That the defendant intended to cause a harmful [or offensive] contact with the plaintiff’s sexual organ/anus/groin/buttocks/breast, and a sexually offensive contact with the plaintiff resulted, either directly or indirectly;]
[OR]
[(b) That the defendant intended to cause a harmful or offensive contact with the plaintiff by use of the defendant’s sexual organ/anus/groin/buttocks/breast, and a sexually offensive contact with [name of plaintiff] resulted, either directly or indirectly;]
[OR]
[(c) That the defendant caused an imminent fear of a harmful [or offensive] contact with the plaintiff’s sexual organ/anus/groin/buttocks/breast]/ or the plaintiff by use of the defendant’s sexual organ/anus/groin/buttocks/breast, and a sexually offensive contact with the plaintiff resulted, either directly or indirectly;]
[OR]
[(d) That the defendant caused contact between a sexual organ, from which a condom had been removed, and the plaintiff’s sexual organ/anus/groin/buttocks/breast;]
[OR]
[(e) That the defendant caused contact between a sexual organ/anus/groin/buttocks/breast] and the plaintiff’s sexual organ from which the defendant had removed a condom;]
AND
2. That the plaintiff did not consent to the touching/verbally consent to the condom being removed; and
3. That the plaintiff was harmed or offended by the defendant’s conduct.
“Offensive contact” means contact that offends a reasonable sense of personal dignity.
Instruction 1320 [Intent]:
The defendant acted intentionally if he intended to commit a battery, etc. or if he was substantially certain that the assault or battery would result from his conduct.
Instruction 1321 [Transferred Intent]:
If the defendant intended to commit a battery or assault on one person, but by mistake or accident committed the act on the plaintiff, then the battery or assault is the same as if the intended person had been the victim.
[Judicial Council Of California Civil Jury Instructions]
