California Criminal Jury Instructions (CALCRIM) (2017)

2653. Taking Firearm or Weapon While Resisting Peace Officer or Public Officer

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2653.Taking Firearm or Weapon While Resisting Peace Officer or
Public Officer (Pen. Code, § 148(b) & (c))
The defendant is charged [in Count ] with taking a (firearm/
weapon) from a (peace/public) officer while (resisting[,]/obstructing[,]/
[or] delaying) the officer in performing or attempting to perform (his/
her) duties [in violation of Penal Code section 148].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. <insert offıcer’s name, excluding title> was a (peace/
public) officer lawfully performing or attempting to perform (his/
her) duties as a (peace/public) officer;
2. The defendant willfully (resisted[,]/obstructed[,]/ [or] delayed)
<insert offıcer’s name, excluding title> in the
performance of or attempt to perform those duties;
3. When the defendant acted, (he/she) knew, or reasonably should
have known, that <insert offıcer’s name, excluding
title> was a (peace/public) officer performing or attempting to
perform (his/her) duties;
[AND]
4. While the defendant (resisted[,]/obstructed[,]/ [or] delayed)
<insert offıcer’s name, excluding title>, the defendant
took or removed a (firearm/weapon) from ’s <insert
offıcer’s name, excluding title> person [or immediate presence](;/.)
<Give element 5 when instructing on self-defense or defense of another.>
[AND
5. The defendant did not act (in self-defense/ [or] in defense of
someone else).]
Someone commits an act willfully when he or she does it willingly or on
purpose. It is not required that he or she intend to break the law, hurt
someone else, or gain any advantage.
[A firearm is any device designed to be used as a weapon, from which a
projectile is discharged or expelled through a barrel by the force of an
explosion or other form of combustion.]
[The term firearm is defined in another instruction to which you should
refer.]
[A person who is employed as a police officer by <insert
name of agency that employs police offıcer> is a peace officer.]
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[A person employed by <insert name of agency that employs
peace offıcer, e.g., “the Department of Fish and Wildlife”> is a peace
officer if <insert description of facts necessary to make
employee a peace offıcer, e.g., “designated by the director of the agency as
a peace offıcer”>.]
[An officer or employee of <insert name of state or local
government agency that employs public offıcer> is a public officer.]
[The duties of (a/an)<insert title of peace or public offıcer>
include <insert job duties>.]
[Taking a photograph or making an audio or video recording of a
(peace officer/ [or] public 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 February 2012, August 2016
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the crime.
If there is sufficient evidence of self-defense or defense of another, the court has a
sua sponte duty to instruct on the defense. Give bracketed element 5 and any
appropriate defense instructions. (See CALCRIM Nos. 3470–3477.)
In addition, the court has a sua sponte duty to instruct on defendant’s reliance on
self-defense as it relates to the use of excessive force. (People v. White (1980) 101
Cal.App.3d 161, 167–168 [161 Cal.Rptr. 541].) If excessive force is an issue, the
court has a sua sponte duty to instruct the jury that the defendant is not guilty of
the offense charged, or any lesser included offense in which lawful performance is
an element, if the defendant used reasonable force in response to excessive force.
(People v. Olguin (1981) 119 Cal.App.3d 39, 46–47 [173 Cal.Rptr. 663].) On
request, the court must instruct that the prosecution has the burden of proving the
lawfulness of the arrest beyond a reasonable doubt. (People v. Castain (1981) 122
Cal.App.3d 138, 145 [175 Cal.Rptr. 651].) If lawful performance of a peace officer
is an issue, give the bracketed paragraph on lawful performance and the appropriate
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portions of CALCRIM No. 2670, Lawful Performance: Peace Offıcer. If lawful
performance by a public officer is an issue, the court must draft an appropriate
instruction depending on the duties of the officer.
Give the bracketed definition of “firearm” unless the court has already given the
definition in other instructions. In such cases, the court may give the bracketed
sentence stating that the term is defined elsewhere.
The jury must determine whether the alleged victim is a peace officer. (People v.
Brown (1988) 46 Cal.3d 432, 444–445 [250 Cal.Rptr. 604, 758 P.2d 1135].) The
court may instruct the jury on the appropriate definition of “peace officer” from the
statute (e.g., “a Garden Grove Regular Police Officer and a Garden Grove Reserve
Police Officer are peace officers”). (Ibid.) However, the court may not instruct the
jury that the alleged victim was a peace officer as a matter of law (e.g., “Officer
Reed was a peace officer”). (Ibid.) If the alleged victim is a police officer, give the
bracketed sentence that begins with “A person employed as a police officer.” If the
alleged victim is another type of peace officer, give the bracketed sentence that
begins with “A person employed by.”
The court may give the bracketed sentence that begins, “The duties of a
<insert title . . . .> include,” on request. The court may insert a
description of the officer’s duties such as “the correct service of a facially valid
search warrant.” (People v. Gonzalez (1990) 51 Cal.3d 1179, 1222 [275 Cal.Rptr.
729, 800 P.2d 1159].)
Related Instructions
CALCRIM No. 2654, Intentionally Taking or Attempting to Take Firearm From
Peace Offıcer or Public Offıcer.
AUTHORITY
• Elements. Pen. Code, § 148(b) & (c); see In re Muhammed C. (2002) 95
Cal.App.4th 1325, 1329 [116 Cal.Rptr.2d 21] [elements of Pen. Code, § 148(a)
offense]; Nuno v. County of San Bernardino (1999) 58 F.Supp.2d 1127, 1133
[officer lawfully performing duties]; People v. Lopez (1986) 188 Cal.App.3d
592, 599–600 [233 Cal.Rptr. 207] [knowledge that other person is an officer].
• Firearm Defined. Pen. Code, § 16520.
• Multiple Violations. Pen. Code, § 148(e).
• Peace Officer Defined. Pen. Code, § 830 et seq.
• Public Officer. See, e.g., Pen. Code, §§ 831(a) [custodial officer], 831.4
[sheriff’s or police security officer], 831.5 [custodial officer], 831.6
[transportation officer], 3089 [county parole officer]; In re Frederick B. (1987)
192 Cal.App.3d 79, 89–90 [237 Cal.Rptr. 338], disapproved on other grounds in
In re Randy G. (2001) 26 Cal.4th 556, 567, fn. 2 [110 Cal.Rptr.2d 516, 28 P.3d
239] [“public officers” is broader category than “peace officers”]; see also Pen.
Code, § 836.5(a) [authority to arrest without warrant].
• Public Official Defined. Gov. Code, § 82048; see In re Eddie D. (1991) 235
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Cal.App.3d 417, 421 [286 Cal.Rptr. 684].
• Unlawful Arrest or Act by Officer. Pen. Code, § 148(f); Franklin v. Riverside
County (1997) 971 F.Supp. 1332, 1335–1336; People v. Curtis (1969) 70 Cal.2d
347, 354 [74 Cal.Rptr. 713, 450 P.2d 33]; Susag v. City of Lake Forest (2002)
94 Cal.App.4th 1401, 1409 [115 Cal.Rptr.2d 269].
• Delaying Officer From Performing Duties. People v. Allen (1980) 109
Cal.App.3d 981, 985–986, 987 [167 Cal.Rptr. 502].
• General Intent Crime. In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1329
[116 Cal.Rptr.2d 21]; People v. Matthews (1999) 70 Cal.App.4th 164, 175 [82
Cal.Rptr.2d 502].
• “Take” or “Remove” Defined. People v. Matthews (1999) 70 Cal.App.4th 164,
173, 175 [82 Cal.Rptr.2d 502].
• Verbal Resistance or Obstruction. People v. Quiroga (1993) 16 Cal.App.4th
961, 968, 970–972 [20 Cal.Rptr.2d 446] [nondisclosure of identity following
arrest for felony, not misdemeanor]; People v. Green (1997) 51 Cal.App.4th
1433, 1438 [59 Cal.Rptr.2d 913] [attempt to intimidate suspected victim into
denying offense].
• Merely Photographing or Recording Officers Not a Crime. Pen. Code,
§ 148(g).
Secondary Sources
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Governmental Authority, §§ 18–20.
1 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 11, Arrest,
§ 11.06[3] (Matthew Bender).
LESSER INCLUDED OFFENSES
• Attempted Removal of Firearm or Weapon. Pen. Code, §§ 663, 148(b) & (c).
• Misdemeanor Resisting Arrest. Pen. Code, § 148(a)(1).
RELATED ISSUES
Multiple Violations
A person may be convicted of multiple violations of this section if there are
multiple officer victims. (Pen. Code, § 148(e).) However, a person may not be
convicted of both resisting an officer in violation of Penal Code section 148(a) and
removing a weapon or firearm from an officer in violation of Penal Code section
148(b), (c), or (d) if the resistance and removal were committed against the same
officer. (Pen. Code, § 148(e).)
Other Forms of Resistance or Interference
It is a misdemeanor under Penal Code section 148(a)(1) to willfully resist, delay, or
obstruct any emergency medical technician in discharging or attempting to
discharge his or her duties of employment. (See Health & Saf. Code, § 1797
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[defining emergency medical technician].) It is also a misdemeanor under Penal
Code section 148(a)(2) to knowingly and maliciously interrupt, disrupt, impede, or
otherwise interfere with the transmission of a communication over a public safety
radio frequency.
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