Justia Criminal Law Center California Criminal Jury Instructions (CALCRIM) (2023) Crimes Against Government CALCRIM No. 2654. Intentionally Taking or Attempting to Take Firearm From Peace Officer or Public Officer (Pen. Code, § 148(d))

CALCRIM No. 2654. Intentionally Taking or Attempting to Take Firearm From Peace Officer or Public Officer (Pen. Code, § 148(d))

Judicial Council of California Criminal Jury Instructions (2023 edition)

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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(;/.)

[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

CRIMES AGAINST GOVERNMENT CALCRIM No. 2654

543

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

CALCRIM No. 2654 CRIMES AGAINST GOVERNMENT

544

<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)].

RELATED ISSUES

See the Related Issues section to CALCRIM No. 2653, Taking Firearm or Weapon

While Resisting Peace Offıcer or Public Offıcer.

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][b] (Matthew Bender).

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Page last reviewed May 2023