California Criminal Jury Instructions (CALCRIM) (2017)

2656. Resisting Peace Officer, Public Officer, or EMT

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2656.Resisting Peace Officer, Public Officer, or EMT (Pen. Code,
§ 148(a))
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 [in violation of Penal Code section 148(a)].
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;
AND
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 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.]
[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 offıcer, public
offıcer, or emergency medical technician> include <insert job
duties>.]
[Taking a photograph or making an audio or video recording of a
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(peace officer/public officer/emergency medical technician) 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).]
[[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 may not find the defendant guilty unless you all agree
that the People have proved that the defendant committed at least one
of the alleged acts of (resisting[,]/ [or] obstructing[,]/ [or] delaying) a
(peace officer/public officer/emergency medical technician) who was
lawfully performing his or her duties, 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.]
New January 2006; Revised June 2007, August 2016
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the crime.
The court may use the optional bracketed language in the penultimate paragraph to
insert a description of the multiple acts alleged if appropriate.
“[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.
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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 Offıcer. 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 CALCRIM No. 3500, Unanimity, if needed.
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].)
AUTHORITY
• 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).
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• 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].
• 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, §§ 18–19.
1 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 11, Arrest,
§ 11.06[3][b] (Matthew Bender).
2657–2669. Reserved for Future Use
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