2651. Trying to Prevent an Executive Officer From Performing Duty
The defendant is charged [in Count ______] with trying to (prevent/ [or] deter) an executive officer from performing that officer's duty.
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;
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 officer, 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.
[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 officer>, authorized by <insert
appropriate section from Pen. Code, § 830 et seq.> to <describe statutory authority>, is a peace officer.]
[The duties of (a/an) <insert title of officer 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 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).]
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 Officer.
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.
Elements. Pen. Code, § 69.
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].
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Governmental Authority, § 119.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, § 142.11A[b] (Matthew Bender).
Lesser Included Offenses
Resisting an officer, Penal Code section 148(a), is not a lesser included offense of attempting to deter an officer. (People v. Belmares (2003) 106 Cal.App.4th 19, 26 [130 Cal.Rptr.2d 400].)
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 (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.)
(New January 2006)