California Criminal Jury Instructions (CALCRIM) (2017)

2651. Trying to Prevent an Executive Officer From Performing Duty

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2651.Trying to Prevent an Executive Officer From Performing
Duty (Pen. Code, § 69)
The defendant is charged [in Count ] with trying to (prevent/
[or] deter) an executive officer from performing that officer’s duty [in
violation of Penal Code section 69].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant willfully and unlawfully used (violence/ [or] a
threat of violence) to try to (prevent/ [or] deter) an executive
officer from performing the officer’s lawful duty;
AND
2. When the defendant acted, (he/she) intended to (prevent/ [or]
deter) the executive officer from performing the officer’s lawful
duty.
Someone commits an act willfully when he or she does it willingly or on
purpose.
An executive officer is a government official who may use his or her own
discretion in performing his or her job duties. [(A/An)
<insert title, e.g., peace offıcer, commissioner, etc.> is an executive officer.]
The executive officer does not need to be performing his or her job
duties at the time the threat is communicated.
A threat may be oral or written and may be implied by a pattern of
conduct or a combination of statements and conduct.
[Photographing or recording an executive officer while the officer is in a
public place or while the person photographing or recording is in a
place where he or she has the right to be is not, by itself, a crime.]
[The defendant does not have to communicate the threat directly to the
intended victim, but may do so through someone else. The defendant
must, however, intend that (his/her) statement be taken as a threat by
the intended victim.]
[Someone who intends that a statement be understood as a threat does
not have to actually intend to carry out the threatened act [or intend to
have someone else do so].]
[A sworn member of <insert name of agency that employs
peace offıcer>, authorized by <insert appropriate section
from Pen. Code, § 830 et seq.> to <describe statutory
authority>, is a peace officer.]
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0050
[The duties of (a/an) <insert title of offıcer specified in Pen.
Code, § 830 et seq.> include <insert job duties>.]
<When lawful performance is an issue, give the following paragraph and
Instruction 2670, Lawful Performance: Peace Offıcer.>
[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).]
New January 2006; Revised August 2014, August 2016
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the crime.
In order to be “performing a lawful duty,” an executive officer, including a peace
officer, must be acting lawfully. (In re Manuel G. (1997) 16 Cal.4th 805, 816–817
[66 Cal.Rptr.2d 701, 941 P.2d 880]; People v. Gonzalez (1990) 51 Cal.3d 1179,
1217 [275 Cal.Rptr. 729, 800 P.2d 1159].) The court has a sua sponte duty to
instruct on lawful performance and the defendant’s reliance on self-defense as it
relates to the use of excessive force when this is an issue in the case. (People v.
Castain (1981) 122 Cal.App.3d 138, 145 [175 Cal.Rptr. 651]; People v. Olguin
(1981) 119 Cal.App.3d 39, 46–47 [173 Cal.Rptr. 663]; People v. White (1980) 101
Cal.App.3d 161, 167–168 [161 Cal.Rptr. 541].)
For this offense, “the relevant factor is simply the lawfulness of the official conduct
that the defendant (through threat or violence) has attempted to deter, and not the
lawfulness (or official nature) of the conduct in which the officer is engaged at the
time the threat is made.” (In re Manuel G., supra, 16 Cal.4th at p. 817.) Thus, if
the evidence supports the conclusion that the defendant attempted to deter the
officer’s current performance of a duty, the court should instruct on the lawfulness
of that duty. (Ibid.) Where the evidences supports the conclusion that the defendant
attempted to deter the officer from performing a duty in the future, the court should
only instruct on the lawfulness of that future duty. (Ibid.)
If there is an issue in the case as to the lawful performance of a duty by a peace
officer, give the last bracketed paragraph and CALCRIM No. 2670, Lawful
Performance: Peace Offıcer.
If a different executive officer was the alleged victim, the court will need to draft
an appropriate definition of lawful duty if this is an issue in the case.
AUTHORITY
• Elements. Pen. Code, § 69.
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• Specific Intent Required. People v. Gutierrez (2002) 28 Cal.4th 1083, 1154
[124 Cal.Rptr.2d 373, 52 P.3d 572].
• Immediate Ability to Carry Out Threat Not Required. People v. Hines (1997)
15 Cal.4th 997, 1061 [64 Cal.Rptr.2d 594, 938 P.2d 388].
• Lawful Performance Element to Attempting to Deter. In re Manuel G. (1997)
16 Cal.4th 805, 816–817 [66 Cal.Rptr.2d 701, 941 P.2d 880].
• Statute Constitutional. People v. Hines (1997) 15 Cal.4th 997, 1061 [64
Cal.Rptr.2d 594, 938 P.2d 388].
• Merely Photographing or Recording Officers Not a Crime. Pen. Code, § 69(b).
Secondary Sources
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Governmental Authority, § 128.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, § 142.11A[1][b] (Matthew Bender).
RELATED ISSUES
Resisting an Officer Not Lesser Included Offense
Resisting an officer, Penal Code section 148(a), is not a lesser included offense of
attempting by force or violence to deter an officer. (People v. Smith (2013) 57
Cal.4th 232, 240–245 [159 Cal.Rptr.3d 57, 303 P.3d 368].)
Statute as Written Is Overbroad
The statute as written would prohibit lawful threatening conduct. To avoid
overbreadth, this instruction requires that the defendant act both “willfully” and
“unlawfully.” (People v. Superior Court (Anderson) (1984) 151 Cal.App.3d 893,
895–896 [199 Cal.Rptr. 150].)
State of Mind of Victim Irrelevant
Unlike other threat crimes, the state of mind of the intended victim is irrelevant.
(People v. Gutierrez (2002) 28 Cal.4th 1083, 1153 [124 Cal.Rptr.2d 373, 52 P.3d
572]; People v. Hines (1997) 15 Cal.4th 997, 1061, fn. 15 [64 Cal.Rptr.2d 594, 938
P.2d 388].)
Immediate Ability to Carry Out Threat Not Required
“As long as the threat reasonably appears to be a serious expression of intention to
inflict bodily harm and its circumstances are such that there is a reasonable
tendency to produce in the victim a fear that the threat will be carried out, a statute
proscribing such threats is not unconstitutional for lacking a requirement of
immediacy or imminence. Thus, threats may be constitutionally prohibited even
when there is no immediate danger that they will be carried out.” (People v. Hines
(1997) 15 Cal.4th 997, 1061 [64 Cal.Rptr.2d 594, 938 P.2d 388] [quoting In re
M.S. (1995) 10 Cal.4th 698, 714 [42 Cal.Rptr.2d 355, 896 P.2d 1365], citation and
internal quotation marks removed, emphasis in original]; see also People v. Gudger
(1994) 29 Cal.App.4th 310, 320–321 [34 Cal.Rptr.2d 510]; Watts v. United States
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(1969) 394 U.S. 705, 707 [89 S.Ct. 1399, 22 L.Ed.2d 664]; United States v. Kelner
(2d Cir. 1976) 534 F.2d 1020, 1027.)
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