2655. Causing Death or Serious Bodily Injury While Resisting Peace Officer

The defendant is charged [in Count ______] with causing (the death of/serious bodily injury to) a peace officer 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 officer lawfully performing or attempting to perform (his/her) duties as a peace officer;

2. The defendant willfully resisted <insert officer's name, excluding title> in the performance of or the attempt to perform (his/her) duties;

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

4. ______'s<insert officer's name, excluding title> actions were reasonable, based on the facts or circumstances confronting (him/her) at the time;

5. The detention and arrest of (the defendant/ <insert name of person other than defendant who was arrested>) were lawful and there was probable cause to detain;

[AND]

6. The defendant's willful resistance caused (the death of/ serious bodily injury to) <insert officer's name, excluding title>(;/.)

<Give element 7 when instructing on self-defense or defense of another.>

[AND

7. 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.

In order to prove that ______'s<insert officer's name, excluding title> (death/serious bodily injury) was caused by the defendant's willful resistance, the People must prove that:

1. A reasonable person in the defendant's position would have foreseen that (his/her) willful resistance could begin a chain of events likely to result in the officer's death or serious bodily injury;

2. Defendant's willful resistance was a direct and substantial factor in causing ______'s<insert officer's name, excluding title> (death/serious bodily injury);

AND

3. ______'s<insert officer's name, excluding title> (death/ serious bodily injury) would not have happened if the defendant had not willfully resisted <insert officer's name, excluding title> from performing or attempting to perform (his/her) duties.

A substantial factor is more than a trivial or remote factor. However, it does not need to be the only factor that caused ______'s <insert officer's name, excluding title> (death/serious bodily injury).

[A serious bodily injury means a serious impairment of physical condition. Such an injury may include[, but is not limited to]: (loss of consciousness/ concussion/ bone fracture/ protracted loss or impairment of function of any bodily member or organ/ a wound requiring extensive suturing/ [and] serious disfigurement).]

[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">.]

[The duties of (a/an) <insert title of peace 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.

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 7 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.

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].)

Authority

Elements. Pen. Code, § 148.10(a) & (b).

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

Serious Bodily Injury Defined. Pen. Code, §§ 148.10(d), 243(f)(4); People v. Taylor (2004) 118 Cal.App.4th 11, 25, fn. 4 [12 Cal.Rptr.3d 693].

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].

Secondary Sources

2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Governmental Authority, § 21.

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

Lesser Included Offenses

Misdemeanor Resisting Arrest. Pen. Code, § 148(a)(1).

Related Issues

Exclusions

Penal Code section 148.10 "does not apply to conduct that occurs during labor picketing, demonstrations, or disturbing the peace." (Pen. Code, § 148.10(c).)

(New January 2006)