2652. Resisting an Executive Officer in Performance of Duty
The defendant is charged [in Count ______] with resisting an executive officer in the performance of that officer's duty.
To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant [unlawfully] used force [or violence] to resist an executive officer;
2. When the defendant acted, the officer was performing (his/her) lawful duty;
3. When the defendant acted, (he/she) knew the executive officer was performing (his/her) duty.
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.]
[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 [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].)
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.
General Intent Offense. People v. Roberts (1982) 131 Cal.App.3d Supp. 1, 9 [182 Cal.Rptr. 757].
Lawful Performance Element to Resisting Officer. In re Manuel G. (1997) 16 Cal.4th 805, 816 [66 Cal.Rptr.2d 701, 941 P.2d 880].
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Governmental Authority, § 119.
1 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 11, Arrest, § 11.06 (Matthew Bender).
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73, Defenses and Justifications, § 73.15 (Matthew Bender).
Lesser Included Offenses
Penal Code section 148(a) may be a lesser included offense.
(New January 2006)