California Criminal Jury Instructions (CALCRIM) (2017)

2652. Resisting an Executive Officer in Performance of Duty

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2652.Resisting an Executive Officer in Performance of Duty
(Pen. Code, § 69)
The defendant is charged [in Count ] with resisting an executive
officer in the performance of 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 [unlawfully] used force [or violence] to resist an
executive officer;
2. When the defendant acted, the officer was performing (his/her)
lawful duty;
AND
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 offıcer, commissioner, etc.> is an executive officer.]
[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.]
[The duties of (a/an) <insert title of offıcer specified in Pen.
Code, § 830 et seq.> include <insert job duties>.]
[Taking a photograph or making an audio or video recording of an
executive officer while the officer is in a public place or the person
taking the photograph or making the recording is in a place where he
or she has the right to be is not, by itself, a crime.]
<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, February 2015, August 2016
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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 [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 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.
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].
• 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.
1 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 11, Arrest,
§ 11.06[3] (Matthew Bender).
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justifications, § 73.15[2] (Matthew Bender).
LESSER INCLUDED OFFENSES
Penal Code section 148(a) is not a lesser included offense of this crime under the
statutory elements test, but may be one under the accusatory pleading test. People
v. Smith (2013) 57 Cal.4th 232, 241–242 [159 Cal.Rptr.3d 57, 303 P.3d 368]; see
also People v. Belmares (2003) 106 Cal.App.4th 19, 26 [130 Cal.Rptr.2d 400] and
People v. Lopez (2005) 129 Cal.App.4th 1508, 1532 [29 Cal.Rptr.3d 586].
Assault may be a lesser included offense of this crime under the accusatory
CRIMES AGAINST GOVERNMENT CALCRIM No. 2652
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pleading test. See People v. Brown (2016) 245 Cal.App.4th 140, 153 [199
Cal.Rptr.3d 303].
CALCRIM No. 2652 CRIMES AGAINST GOVERNMENT
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