CALCRIM No. 2652. Resisting an Executive Officer in Performance of Duty (Pen. Code, § 69)

Judicial Council of California Criminal Jury Instructions (2022 edition)

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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 officers 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;
3. When the defendant acted, the defendant knew that the person
(he/she) resisted was an executive officer;
AND
4. 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).]
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New January 2006; Revised August 2014, February 2015, August 2016, September
2019
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).
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 pleading
test. See People v. Brown (2016) 245 Cal.App.4th 140, 153 [199 Cal.Rptr.3d 303].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Governmental Authority, § 128.
CRIMES AGAINST GOVERNMENT CALCRIM No. 2652
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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).
CALCRIM No. 2652 CRIMES AGAINST GOVERNMENT
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