Criminal Law

2654. Intentionally Taking or Attempting to Take Firearm From Peace Officer or Public Officer

The defendant is charged [in Count ______] with intentionally (taking/ [or] attempting to take) a firearm from a (peace/public) officer while the officer was performing (his/her) duties.

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

1. <insert officer's name, excluding title> was a (peace/public) officer lawfully performing (his/her) duties as a (peace/public) officer;

2. The defendant (took or removed/ [or] attempted to take or remove) a firearm from ______'s<insert officer's name, excluding title> person [or immediate presence];

3. When the defendant acted, (he/she) intended to take or remove the firearm from ______'s<insert officer's name, excluding title> person [or immediate presence];

[AND]

4. When the defendant acted, (he/she) knew, or reasonably should have known, that <insert officer's name, excluding title> was a (peace/public) officer performing (his/her) duties(;/.)

<Give element 5 when instructing on self-defense or defense of another>

[AND

5. The defendant did not act (in self-defense/ [or] in defense of someone else).]

To prove that the defendant intended to take or remove a firearm from <insert officer's name, excluding title>, the People must prove [at least one of] the following:

[1. The defendant unfastened ______'s<insert officer's name, excluding title> holster strap.]

[2. The defendant partially removed the firearm from ______'s<insert officer's name, excluding title> holster.]

[3. The defendant released the safety on ______'s<insert officer's name, excluding title> firearm.]

[4. (a) The defendant said that (he/she) intended to remove the firearm from <insert officer's name, excluding title>; (b) the defendant actually touched the firearm; and (c) an independent witness has given testimony that you believe, which supports the conclusion that the defendant made the statement about (his/her) intent and actually touched the firearm.]

[5. (a) The defendant actually had (his/her) hand on the firearm; (b) the defendant tried to take it away from <insert officer's name, excluding title>, who was holding it; and (c) an independent witness has given testimony that you believe, which supports the conclusion that the defendant actually had (his/her) hand on the firearm and tried to take it away from the officer.]

[6. The defendant's fingerprint[s] (was/were) found on the firearm or holster.]

[7. Physical evidence authenticated by a scientifically verifiable procedure establishes that the defendant touched the firearm.]

[8. ______'s<insert officer's name, excluding title> firearm fell during a struggle and the defendant attempted to pick it up.]

[A person may intend to take a weapon from an officer without intending to permanently deprive the officer of the firearm.]

[A firearm is any device designed to be used as a weapon, from which a projectile is discharged or expelled through a barrel by the force of an explosion or other form of combustion.]

[The term firearm is defined in another instruction to which you should refer.]

[A person who is employed as a police officer by <insert name of agency that employs police officer> is a peace officer.]

[A person employed by <insert name of agency that employs peace officer, e.g., "the Department of Fish and Game"> is a peace officer if <insert description of facts necessary to make employee a peace officer, e.g., "designated by the director of the agency as a peace officer">.]

[An officer or employee of <insert name of state or local government agency that employs public officer > is a public officer.]

[The duties of (a/an) <insert title of peace or public officer> include <insert job duties>.]

<When lawful performance is an issue, give the following paragraph and Instruction 2670, Lawful Performance: Peace Officer.>

[A peace officer is not lawfully performing his or her duties if he or she is (unlawfully arresting or detaining someone/ [or] using unreasonable or excessive force in his or her duties). Instruction 2670 explains (when an arrest or detention is unlawful/ [and] when force is unreasonable or excessive).]

Bench Notes

Instructional Duty

The court has a sua sponte duty to give this instruction defining the elements of the crime. Depending on the evidence in the case, give the appropriate bracketed paragraph or paragraphs describing direct but ineffectual acts that establish defendant's specific intent to remove or take a firearm. (See Pen. Code, 148(d)(1)-(8).)

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 5 and any appropriate defense instructions. (See CALCRIM Nos. 3470-3477.)

In addition, the court has a sua sponte duty to instruct on defendant's reliance on self-defense as it relates to the use of excessive force. (People v. White (1980) 101 Cal.App.3d 161, 167-168 [161 Cal.Rptr. 541].) If excessive force is an issue, the court has a sua sponte duty to instruct the jury that the defendant is not guilty of the offense charged, or any lesser included offense in which lawful performance is an element, if the defendant used reasonable force in response to excessive force. (People v. Olguin (1981) 119 Cal.App.3d 39, 46-47 [173 Cal.Rptr. 663].) On request, the court must instruct that the prosecution has the burden of proving the lawfulness of the arrest beyond a reasonable doubt. (People v. Castain (1981) 122 Cal.App.3d 138, 145 [175 Cal.Rptr. 651].) If lawful performance of a peace officer is an issue, give the bracketed paragraph on lawful performance and the appropriate portions of CALCRIM No. 2670, Lawful Performance: Peace Officer. If lawful performance by a public officer is an issue, the court must draft an appropriate instruction depending on the duties of the officer.

Give the bracketed definition of "firearm" unless the court has already given the definition in other instructions. In such cases, the court may give the bracketed sentence stating that the term is defined elsewhere.

The jury must determine whether the alleged victim is a peace officer. (People v. Brown (1988) 46 Cal.3d 432, 444-445 [250 Cal.Rptr. 604, 758 P.2d 1135].) The court may instruct the jury on the appropriate definition of "peace officer" from the statute (e.g., "a Garden Grove Regular Police Officer and a Garden Grove Reserve Police Officer are peace officers"). (Ibid.) However, the court may not instruct the jury that the alleged victim was a peace officer as a matter of law (e.g., "Officer Reed was a peace officer"). (Ibid.) If the alleged victim is a police officer, give the bracketed sentence that begins with "A person employed as a police officer." If the alleged victim is another type of peace officer, give the bracketed sentence that begins with "A person employed by."

The court may give the bracketed sentence that begins, "The duties of a <insert title . . . .> include," on request. The court may insert a description of the officer's duties such as "the correct service of a facially valid search warrant." (People v. Gonzalez (1990) 51 Cal.3d 1179, 1222 [275 Cal.Rptr. 729, 800 P.2d 1159].)

Related Instructions

CALCRIM No. 2653, Taking Firearm or Weapon While Resisting Peace Officer or Public Officer.

CALCRIM No. 1801, Theft: Degrees (theft of firearm from an officer).

Authority

Elements. Pen. Code, 148(d); see In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1329 [116 Cal.Rptr.2d 21] [elements of Pen. Code, 148(a) offense]; Nuno v. County of San Bernardino (1999) 58

F.Supp. 1127, 1133 [officer lawfully performing duties]; People v. Lopez (1986) 188 Cal.App.3d 592, 599-600 [233 Cal.Rptr. 207] [knowledge that other person is an officer].

Firearm Defined. Pen. Code, 12001(b).

Multiple Violations. Pen. Code, 148(e).

Peace Officer Defined. Pen. Code, 830 et seq.

Public Officer. See, e.g., Pen. Code, 831(a) [custodial officer], 831.4 [sheriff's or police security officer], 831.5 [custodial officer], 831.6 [transportation officer], 3089 [county parole officer]; In re Frederick B. (1987) 192 Cal.App.3d 79, 89-90 [237 Cal.Rptr. 338] ["public officers" is broader category than "peace officers"], disapproved on other grounds in In re Randy G. (2001) 26 Cal.4th 556, 567, fn. 2 [110 Cal.Rptr.2d 516, 28 P.3d 239]; see also Pen. Code, 836.5(a) [authority to arrest without warrant].

Public Official Defined. Gov. Code, 82048; see In re Eddie D. (1991) 235 Cal.App.3d 417, 421 [286 Cal.Rptr. 684].

Unlawful Arrest or Act by Officer. Pen. Code, 148(f); Franklin v. Riverside County (1997) 971 F.Supp. 1332, 1335-1336; People v. Curtis (1969) 70 Cal.2d 347, 354 [74 Cal.Rptr. 713, 450 P.2d 33]; Susag v. City of Lake Forest (2002) 94 Cal.App.4th 1401, 1409 [115 Cal.Rptr.2d 269].

"Take" or "Remove" Defined. See People v. Matthews (1999) 70 Cal.App.4th 164, 173, 175 [82 Cal.Rptr.2d 502] [in context of Pen. Code, 148(a)].

Secondary Sources

2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Governmental Authority, 18-20.

1 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 11, Arrest, 11.06[3][b] (Matthew Bender).

Related Issues

See the Related Issues section to CALCRIM No. 2653, Taking Firearm or Weapon While Resisting Peace Officer or Public Officer.

(New January 2006)