2656. Resisting Peace Officer, Public Officer, or EMT
The defendant is charged [in Count ______] with (resisting[,]/ [or] obstructing[,]/ [or] delaying) a (peace officer/public officer/ emergency medical technician) in the performance or attempted performance of (his/her) duties.
To prove that the defendant is guilty of this crime, the People must prove that:
1. <insert name, excluding title> was (a/an) (peace officer/public officer/emergency medical technician) lawfully performing or attempting to perform (his/her) duties as a (peace officer/public officer/emergency medical technician);
2. The defendant willfully (resisted[,]/ [or] obstructed[,]/ [or] delayed) <insert name, excluding title> in the performance or attempted performance of those duties;
3. When the defendant acted, (he/she) knew, or reasonably should have known, that <insert name, excluding title> was (a/an) (peace officer/public officer/emergency medical technician) performing or attempting to perform (his/her) duties.
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 person who is employed as a police officer by <insert name of agency that employs police officer> is a peace officer.]
[A person employed by <insert name of agency that employs peace officer, e.g., "the Department of Fish and Game"> is a peace officer if <insert description of facts necessary to make employee a peace officer, e.g., "designated by the director of the agency as a peace officer">.]
[An officer or employee of <insert name of state or local government agency that employs public officer> is a public officer.]
[An emergency medical technician is someone who holds a valid certificate as an emergency medical technician.]
[The duties of (a/an) <insert title of peace officer, public officer, or emergency medical technician> include <insert job duties>.]
<When lawful performance is an issue, give the following paragraph and Instruction 2670, Lawful Performance: Peace Officer.>
[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).]
[The People allege that the defendant (resisted[,]/ [or] obstructed[,]/ [or] delayed) <insert name, excluding title> by doing the following: <insert description of acts when multiple acts alleged>. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act (he/she) committed.]
[If a person intentionally goes limp, requiring an officer to drag or carry the person in order to accomplish a lawful arrest, that person may have willfully (resisted[,]/ [or] obstructed[,]/ [or] delayed) the officer if all the other requirements are met.]
The court has a sua sponte duty to give this instruction defining the elements of the crime.
"[I]f a defendant is charged with violating section 148 and the arrest is found to be unlawful, a defendant cannot be convicted of that section." (People v. White (1980) 101 Cal.App.3d 161, 166 [161 Cal.Rptr. 541].) An unlawful arrest includes both an arrest made without legal grounds and an arrest made with excessive force. (Id. at p. 167.) "[D]isputed facts bearing on the issue of legal cause must be submitted to the jury considering an engaged-in-duty element." (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 that the defendant is not guilty of the offense charged if the arrest was unlawful. (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 an arrest beyond a reasonable doubt. (People v. Castain (1981) 122 Cal.App.3d 138, 145 [175 Cal.Rptr. 651].)
If lawful performance is an issue, give the bracketed paragraph on lawful performance and the appropriate portions of CALCRIM No. 2670, Lawful Performance: Peace Officer. When giving the portion of CALCRIM No. 2670 on the "use of force," the court must either delete the following sentence or specify that this sentence does not apply to a charge of violating Penal Code section 148: "If a person knows, or reasonably should know, that a peace officer is arresting or detaining him or her, the person must not use force or any weapon to resist an officer's use of reasonable force." (People v. White, supra, 101 Cal.App.3d at pp. 168-169 [court must clarify that Pen. Code, § 834a does not apply to charge under section 148].)
If the prosecution alleges multiple, distinct acts of resistance, the court has a sua sponte duty to instruct on unanimity. (People v. Moreno (1973) 32 Cal.App.3d Supp. 1, 9 [108 Cal.Rptr. 338].) Give the bracketed paragraph that begins with "The People allege that the defendant."
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 with "The duties of a <insert title . . . > include" on request. The court may insert a description of the alleged victim'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].)
If the facts indicate passive resistance to arrest, give the bracketed sentence that begins with "If a person goes limp." (In re Bacon (1966) 240 Cal.App.2d 34, 53 [49 Cal.Rptr. 322].)
Elements. Pen. Code, § 148(a); see In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1329 [116 Cal.Rptr.2d 21].
General-Intent Crime. In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1329 [116 Cal.Rptr.2d 21].
Knowledge Required. People v. Lopez (1986) 188 Cal.App.3d 592, 599-600 [233 Cal.Rptr. 207].
Multiple Violations Permissible If Multiple Officers. Pen. Code, § 148(e).
Peace Officer Defined. Pen. Code, § 830 et seq.
Emergency Medical Technician Defined. Health & Saf. Code, §§ 1797.80-1797.84.
Delaying Officer From Performing Duties. People v. Allen (1980) 109 Cal.App.3d 981, 985-986, 987 [167 Cal.Rptr. 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].
Passive Resistance to Arrest. In re Bacon (1966) 240 Cal.App.2d 34, 53 [49 Cal.Rptr. 322].
Unanimity. People v. Moreno (1973) 32 Cal.App.3d Supp. 1, 9 [108 Cal.Rptr. 338].
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Governmental Authority, §§ 18-19.
1 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 11, Arrest, § 11.06[b] (Matthew Bender).
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85, Submission to Jury and Verdict, § 85.02[a][i] (Matthew Bender).
(New January 2006)