California Criminal Jury Instructions (CALCRIM) (2017)

2655. Causing Death or Serious Bodily Injury While Resisting Peace Officer

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2655.Causing Death or Serious Bodily Injury While Resisting
Peace Officer (Pen. Code, § 148.10(a) & (b))
The defendant is charged [in Count ] with causing (the death
of/serious bodily injury to) a peace officer performing (his/her) duties
[in violation of Penal Code section 148.10].
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
officer lawfully performing or attempting to perform (his/her)
duties as a peace officer;
2. The defendant willfully resisted <insert offıcer’s
name, excluding title> in the performance of or the attempt to
perform (his/her) duties;
3. When the defendant acted, (he/she) knew, or reasonably should
have known, that <insert offıcer’s name, excluding
title> was a peace officer performing or attempting to perform
(his/her) duties;
4. ’s <insert offıcer’s name, excluding title> actions were
reasonable, based on the facts or circumstances confronting
(him/her) at the time;
5. The detention and arrest of (the defendant/<insert
name of person other than defendant who was arrested>) were
lawful and there was probable cause to detain;
[AND]
6. The defendant’s willful resistance caused (the death of/serious
bodily injury to) <insert offıcer’s name, excluding
title>(;/.)
<Give element 7 when instructing on self-defense or defense of another.>
[AND
7. 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.
In order to prove that ’s <insert offıcer’s name, excluding
title> (death/serious bodily injury) was caused by the defendant’s willful
resistance, the People must prove that:
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1. A reasonable person in the defendant’s position would have
foreseen that (his/her) willful resistance could begin a chain of
events likely to result in the officer’s death or serious bodily
injury;
2. Defendant’s willful resistance was a direct and substantial factor
in causing ’s <insert offıcer’s name, excluding title>
(death/serious bodily injury);
AND
3. ’s <insert offıcer’s name, excluding title>
(death/serious bodily injury) would not have happened if the
defendant had not willfully resisted <insert offıcer’s
name, excluding title> from performing or attempting to perform
(his/her) duties.
Asubstantial factor is more than a trivial or remote factor. However, it
does not need to be the only factor that caused ’s <insert
offıcer’s name, excluding title> (death/serious bodily injury).
[Willful resistance may include fleeing from the officer.]
[A serious bodily injury means a serious impairment of physical
condition. Such an injury may include[, but is not limited to]: (loss of
consciousness/ concussion/ bone fracture/ protracted loss or impairment
of function of any bodily member or organ/ a wound requiring extensive
suturing/ [and] serious disfigurement).]
[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”>.]
[The duties of (a/an)<insert title of peace offıcer> 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
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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 2006, 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 7 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.
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].)
AUTHORITY
• Elements. Pen. Code, § 148.10(a) & (b).
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• Peace Officer Defined. Pen. Code, § 830 et seq.
• Serious Bodily Injury Defined. Pen. Code, §§ 148.10(d), 243(f)(4); People v.
Taylor (2004) 118 Cal.App.4th 11, 25, fn. 4 [12 Cal.Rptr.3d 693].
• Willful Resistance Includes Flight. People v. Superior Court (Ferguson)
(2005) 132 Cal.App.4th 1525, 1535 [34 Cal.Rptr.3d 481].
• 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].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Governmental Authority, § 21.
1 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 11, Arrest,
§ 11.06[3][b] (Matthew Bender).
LESSER INCLUDED OFFENSES
• Misdemeanor Resisting Arrest. Pen. Code, § 148(a)(1).
RELATED ISSUES
Exclusions
Penal Code section 148.10 “does not apply to conduct that occurs during labor
picketing, demonstrations, or disturbing the peace.” (Pen. Code, § 148.10(c).)
Photographing or Recording Officers
Penal Code section 148(g) provides that merely photographing or recording a
public officer or peace officer under certain conditions is not a crime. This new
provision limits its application to violations of subdivision (a) of the same statute,
however. Until the legislature or courts of review provide further guidance, it is
unclear whether section 148(g) would apply to violations of Penal Code section
148.10.
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