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F 7.50 n1 Resisting Executive Officer (PC 69): Means Of Violating The Statute.
There are two separate ways in which PC 69 may be violated. One involves a threat to deter an officer’s lawful duty. The second is to resist by force or violence an officer in the performance of his or her duties. (In re Manuel G. (97) 16 C4th 805 [66 CR2d 701].) The first method of violating PC 69 does not require that the officer be engaged in the lawful performance of his or her duties at the time the threat was made. Instead, the statute covers attempts to deter either the immediate performance of the officer’s duty or the performance of that duty at some time in the future. This still involves a requirement that the officer’s duty that the defendant seeks to deter is a lawful duty of that officer; but the statute does not require the officer to be performing that duty when the threat was made.
On the other hand, the second method of violating the statute requires that the officer be engaged in the lawful performance of his or her duties at the time that the defendant resisted the officer. (Ibid; see also, People v. Wilkins (93) 14 CA4th 761, 776-77 [17 CR2d 743].)
F 7.50 n2 Resisting Executive Officer (PC 69): Error To Instruct Jury That Prison Guards Are Executive Officers.
(See People v. England (2000) 83 CA4th 772 [100 CR2d 63] [UNPUBLISHED PORTION]. [See Opinion Bank # O-268 for the England opinion.]
F 7.50a
Resisting Executive Officer (PC 69):
Requirement Of Specific Intent
*Add to CJ 7.50 as follows [language is added to and deleted from CJ 6.00]:
An attempt to <<commit a crime>> DETER OR PREVENT AN EXECUTIVE OFFICER FROM PERFORMING ANY DUTY IMPOSED UPON THAT OFFICER BY LAW consists of two elements, namely, a specific intent to <<commit the crime>> DETER OR PREVENT AN EXECUTIVE OFFICER FROM PERFORMING ANY DUTY IMPOSED UPON THAT OFFICER BY LAW, and a direct but ineffectual act done toward <<its commission>> ACCOMPLISHING THAT OBJECTIVE.
In determining whether such <<an>> A DIRECT BUT INEFFECTUAL ACT was done, it is necessary to distinguish between mere preparation, on the one hand, and the actual commencement of the <<doing of the criminal deed>> DETERRENCE OR PREVENTION, on the other. Mere preparation, which may consist of planning the offense or of devising, obtaining or arranging the means for its commission, is not sufficient to constitute an attempt. However, acts of a person who intends to <<commit a crime>> DETER OR PREVENT AN EXECUTIVE OFFICER FROM PERFORMING ANY DUTY IMPOSED UPON THAT OFFICER BY LAW will constitute an attempt where those acts clearly indicate a certain, unambiguous intent to <<commit that specific crime>> DETER OR PREVENT AN EXECUTIVE OFFICER FROM PERFORMING ANY DUTY IMPOSED UPON THAT OFFICER BY LAW. These acts must be an immediate step in the present execution of the <<criminal design>> SPECIFIC INTENT, the progress of which would be completed unless interrupted by some circumstance not intended in the original design.
Points and Authorities
PC 69 provides two bases for conviction. (See In re Manuel G. (97) 16 C4th 805 [66 CR2d 701]; see also CJ 7.50.) One basis requires a willful attempt to deter or prevent an executive officer in the performance of his or her duties. Therefore, the jury should be instructed on the necessary requirements of an attempt including the requisite specific intent to deter or prevent the officer in the performance of his or her duties. (See People v. Gutierrez (2002) 28 C4th 1083 [124 CR2d 373].); People v. Hines (97) 15 C4th 997, 1060-61 [64 CR2d 594]; see also In re Manuel G., 16 C4th at 810 [PC 69 requires that threat was “intended to deter….”]; People v. England (2000) 83 CA4th 772 [100 CR2d 63] [court must instruct on attempt to prevent officer from performing duty]; People v. Patino (79) 95 CA3d 11, 27 [PC 69 “would appear to require an act done with the specific intent to interfere with the officer’s performance of his duties”].) CJ 7.50 includes the attempt element but fails to define attempt. Nor do the use notes reference the general attempt instruction (CJ 6.00) as do some of the other CJ instructions which include an attempt as an element of the charge. (See eg., CJ 12.15; CJ 12.22.5 and CJ 12.55.5.) Accordingly, CJ 7.50 should be supplemented to include a definition of attempt such as the one above which has been adapted from CJ 6.00. [See Opinion Bank # O-268 for the England opinion.]
NOTE: Because the attempt basis for PC 69 liability requires specific intent, such intent may be negated by intoxication or mental defect etc. (See PC 22 and PC 28.)
