California Criminal Jury Instructions (CALCRIM) (2017)

2654. Intentionally Taking or Attempting to Take Firearm From Peace Officer or Public Officer

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2654.Intentionally Taking or Attempting to Take Firearm From
Peace Officer or Public Officer (Pen. Code, § 148(d))
The defendant is charged [in Count ] with intentionally (taking/
[or] attempting to take) a firearm from a (peace/public) officer while the
officer was performing (his/her) duties [in violation of Penal Code
section 148(d)].
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 (his/her) duties as a (peace/
public) officer;
2. The defendant (took or removed/ [or] attempted to take or
remove) a firearm from ’s <insert offıcer’s name,
excluding title> person [or immediate presence];
3. When the defendant acted, (he/she) intended to take or remove
the firearm from ’s <insert offıcer’s name, excluding
title> person [or immediate presence];
[AND]
4. 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 (his/her) duties(;/.)
<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).]
To prove that the defendant intended to take or remove a firearm from
<insert offıcer’s name, excluding title>, the People must
prove [at least one of] the following:
[1. The defendant unfastened ’s <insert offıcer’s name,
excluding title> holster strap.]
[2. The defendant partially removed the firearm from ’s
<insert offıcer’s name, excluding title> holster.]
[3. The defendant released the safety on ’s <insert
offıcer’s name, excluding title> firearm.]
[4. (a) The defendant said that (he/she) intended to remove the
firearm from <insert offıcer’s name, excluding title>;
(b) the defendant actually touched the firearm; and (c) an
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independent witness has given testimony that you believe, which
supports the conclusion that the defendant made the statement
about (his/her) intent and actually touched the firearm.]
[5. (a) The defendant actually had (his/her) hand on the firearm; (b)
the defendant tried to take it away from <insert
offıcer’s name, excluding title>, who was holding it; and (c) an
independent witness has given testimony that you believe, which
supports the conclusion that the defendant actually had (his/her)
hand on the firearm and tried to take it away from the officer.]
[6. The defendant’s fingerprint[s] (was/were) found on the firearm
or holster.]
[7. Physical evidence authenticated by a scientifically verifiable
procedure establishes that the defendant touched the firearm.]
[8. ’s <insert offıcer’s name, excluding title> firearm fell
during a struggle and the defendant attempted to pick it up.]
[A person may intend to take a weapon from an officer without
intending to permanently deprive the officer of the firearm.]
[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.]
[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>.]
<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
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excessive).]
New January 2006; Revised February 2012
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the crime. Depending on the evidence in the case, give the appropriate bracketed
paragraph or paragraphs describing direct but ineffectual acts that establish
defendant’s specific intent to remove or take a firearm. (See Pen. Code,
§ 148(d)(1)–(8).)
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
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
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<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. 2653, Taking Firearm or Weapon While Resisting Peace Offıcer or
Public Offıcer.
CALCRIM No. 1801, Theft: Degrees (theft of firearm from an officer).
AUTHORITY
• Elements. Pen. Code, § 148(d); 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] [“public officers” is broader
category than “peace officers”], 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]; 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
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].
• “Take” or “Remove” Defined. See People v. Matthews (1999) 70 Cal.App.4th
164, 173, 175 [82 Cal.Rptr.2d 502] [in context of Pen. Code, § 148(a)].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against
Governmental Authority, §§ 18–20.
1 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 11, Arrest,
§ 11.06[3][b] (Matthew Bender).
RELATED ISSUES
See the Related Issues section to CALCRIM No. 2653, Taking Firearm or Weapon
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While Resisting Peace Offıcer or Public Offıcer.
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