CALCRIM No. 908. Assault Under Color of Authority (Pen. Code, § 149)

Judicial Council of California Criminal Jury Instructions (2024 edition)

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908.Assault Under Color of Authority (Pen. Code, § 149)
The defendant is charged [in Count ] with (assaulting/ [or]
beating) a person under color of authority and without lawful necessity
[in violation of Penal Code section 149].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant was a public officer;
2. The defendant willfully [and unlawfully] (did an act that by its
nature would directly and probably result in the application of
force to <insert name of alleged victim>/touched
<insert name of alleged victim> in a harmful or
offensive manner);
<instruct with elements 3 and 4 for assault>
[3. When the defendant did the act, (he/she) was aware of facts that
would lead a reasonable person to realize that (his/her) act by its
nature would directly and probably result in the application of
force to someone;
4. When the defendant did the act, (he/she) had the present ability
to apply force to a person;]
(3/5). When the defendant (did the act/touched <insert
name of alleged victim> in a harmful or offensive manner), the
defendant was performing or purporting to perform (his/her)
duties as a public officer;
[AND]
(4/6). When the defendant (did the act/touched <insert
name of alleged victim>), (he/she) acted without lawful necessity(;/.)
[AND]
[(5/7). When the defendant (did the act/touched <insert
name of alleged victim>), (he/she) did not act in (self-defense/ [or]
defense of someone else).]
[An officer of <insert name of state or local government
agency that employs public offıcer> is a public officer.]
[A person employed as a police officer by <insert name of
agency that employs police offıcer> is a peace officer. A peace officer is a
public officer.]
[The duties of (a/an) <insert title of peace or public offıcer>
include <insert job duties>.]
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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.
[The terms application of force and apply force mean to touch in a
harmful or offensive manner. The slightest touching can be enough if it
is done in a rude or angry way. Making contact with another person,
including through his or her clothing, is enough. The touching does not
have to cause pain or injury of any kind.]
[No one needs to actually have been injured by the defendant’s act. But
if someone was injured, you may consider that fact, along with all the
other evidence, in deciding whether the defendant committed an assault.]
[The touching can be done indirectly by causing an object [or someone
else] to touch the other person.]
Without lawful necessity means more force than was reasonably necessary
under the circumstances.
Under color of authority means clothed in the authority of law or when
acting under pretense of law.
[Special rules control the use of force by a peace officer.]
[A peace officer may use reasonable nondeadly force to arrest or detain
someone, to prevent escape, to overcome resistance, or in self-defense.]
[A peace officer may use deadly force if (he/she):
1. Reasonably believed, based on the totality of the circumstances,
that the force was necessary to defend against an imminent threat
of death or serious bodily injury to the officer or another person;
OR
2. Reasonably believed, based on the totality of the circumstances,
that:
a. <insert name of fleeing felon>was fleeing;
b. The force was necessary to arrest or detain
<insert name of fleeing felon> for the crime of
<insert name of felony>;
c. The commission of the crime of <insert name of
felony> created a risk of or resulted in death or serious bodily
injury to another person;
AND
d. <insert name of fleeing felon> would cause death
or serious bodily injury to another person unless immediately
arrested or detained.]
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[Deadly force means any use of force that creates a substantial risk of
causing death or serious bodily injury. Deadly force includes, but is not
limited to, the discharge of a firearm.]
[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 threat of death or serious bodily injury is imminent when, based on
the totality of the circumstances, a reasonable officer in the same
situation would believe that a person has the present ability, opportunity,
and apparent intent to immediately cause death or serious bodily injury
to the peace officer or to another person. An imminent harm is not
merely a fear of future harm, no matter how great the fear and no
matter how great the likelihood of the harm, but is one that, from
appearances, must be instantly confronted and addressed.]
Totality of the circumstances means all facts known to the defendant at
the time, including the conduct of the defendant and
<insert name of alleged victim> leading up to the use of deadly force.
[A peace officer who makes or attempts to make an arrest need not
retreat or stop because the person being arrested is resisting or
threatening to resist. A peace officer does not lose (his/her) right to self-
defense by using objectively reasonable force to arrest or to prevent
escape or to overcome resistance.]
New September 2022; Revised March 2023
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 5/7 and any
appropriate defense instructions. (See CALCRIM Nos. 3470-3477.)
The court may instruct the jury on the appropriate definition of “public officer” from
the statute. However, the court may not instruct the jury that the defendant was a
public officer as a matter of law.
The court may give the bracketed sentence that begins “The duties of a
<insert title . . .> include” on request.
AUTHORITY
Elements. Pen. Code, § 149.
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Objectively Reasonable Force to Effect Arrest. Pen. Code, § 835a(b).
Violation of Statute Does Not Include Detention Without Lawful Authority.
People v. Lewelling (2017) 16 Cal.App.5th 276, 298 [224 Cal.Rptr.3d 255].
“Willful” Defined. Pen. Code, § 7(1); People v. Lara (1996) 44 Cal.App.4th 102,
107 [51 Cal.Rptr.2d 402].
Least Touching. People v. Myers (1998) 61 Cal.App.4th 328, 335 [71 Cal.Rptr.2d
518] [citing People v. Rocha (1971) 3 Cal.3d 893, 899-900, fn. 12 [92 Cal.Rptr.
172, 479 P.2d 372]].
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], 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] [“public
officers” is broader category than “peace officers”]; In re Eddie D. (1991) 235
Cal.App.3d 417, 421-422 [286 Cal.Rptr. 684]; In re M.M. (2012) 54 Cal.4th
530, 536-539 [142 Cal.Rptr.3d 869, 278 P.3d 1221]; see also Pen. Code,
§ 836.5(a) [authority to arrest without warrant].
Public Officer Includes De Facto Officer. People v. Cradlebaugh (1914) 24
Cal.App. 489, 491-492.
“Peace Officer” Defined. Pen. Code, § 830 et seq.
Without Lawful Necessity. People v. Dukes (1928) 90 Cal.App. 657, 661-662;
People v. Mehserle (2012) 206 Cal.App.4th 1125, 1140 & fn.20 [142 Cal.Rptr.3d
423]; People v. Lewelling, supra, 16 Cal.App.5th at pp. 298-299; People v.
Perry (2019) 36 Cal.App.5th 444 [248 Cal.Rptr.3d 522].
Color of Authority. People v. Plesniarski (1971) 22 Cal.App.3d 108, 114 [99
Cal.Rptr. 196].
COMMENTARY
Graham Factors
In determining reasonableness, the inquiry is whether the officers actions are
objectively reasonable from the perspective of a reasonable officer on the scene.
(Graham v. Connor (1989) 490 U.S. 386, 396 [109 S.Ct. 1865, 104 L.Ed.2d 443].)
Factors relevant to the totality of the circumstances may include those listed in
Graham, but those factors are not exclusive. (See Glenn v. Washington County (9th
Cir. 2011) 673 F.3d 864, 872.) The Graham factors may not all apply in a given
case. (See People v. Perry, supra, 36 Cal.App.5th at p. 473, fn. 18.) Conduct and
tactical decisions preceding an officers use of deadly force are relevant
considerations. (Hayes v. County of San Diego (2013) 57 Cal.4th 622, 639 [160
Cal.Rptr.3d 684, 305 P.3d 252] [in context of negligence liability].)
RELATED ISSUES
Sexual Battery
Officer convicted of sexually assaulting an arrestee was properly convicted of both
sexual battery and assault under color of authority because the latter offense is not a
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necessarily included offense in the former. (See People v. Alford (1991) 235
Cal.App.3d 799, 804-805 [286 Cal.Rptr. 762].)
909-914. Reserved for Future Use
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