Return to CALJIC Part 9-12 – Contents
F 9.20 n1 Assault On Police Officer: Elements Of Target Offense.
In People v. Lara (94) 30 CA4th 658, 670-72 [34 CR2d 886], the court rejected the defendant’s argument that the engaged-in requirement of PC 243 and PC 148 always requires instruction upon the elements of the offense for which the officer originally sought to detain or arrest the defendant. Rather, the need for instruction is to be adjudicated on a case-by-case basis.
F 9.20 n2 Definition Of Peace Officer (PC 830.1).
In 1990, PC 830.1 was modified to provide in relevant part that “any police officer, employed in that capacity and appointed by the chief of police or the chief executive of the agency, of a city … is a peace officer.” Hence, the standard CJ instructions should be modified to reflect this amendment to the statute. (See People v. Lara (94) 30 CA4th 658, 668-670 [35 CR2d 886].) Similarly, the instruction approved in People v. Brown (88) 46 C3d 432, 443-44 [250 CR 604] should not be given since it was based on an older version of PC 830.1. (Lara 30 CA4th at 668.)
F 9.20 n3 Assault On Police Officer: Simple Assault Or ADW As LIO.
Simple assault (PC 240) and/or ADW (PC 245) are lesser included offenses of assault with a deadly weapon upon a police officer (PC 245(c), PC 245(d), PC 245.2, PC 245.3, PC 245.5(a), PC 245.5(b)) and of assault with an assault weapon upon a police officer (PC 245(d)(2), PC 245(d)(3).) (An unpublished opinion addressing this issue (People v. Foth (C017387) is available to FORECITE subscribers. Ask for Opinion Bank # O-199.)
F 9.20a
Assault: “Should Know” Standard Requires
Consideration Of A Reasonable Person In Defendant’s Position
*Add to CJ 9.20:
[See FORECITE F 7.32a.]
F 9.20b
ADW on Police Officer: Definition Of Deadly Weapon
*Add to CJ 9.20:
[See FORECITE F 5.01a.]
F 9.20c
Assault On Firefighter: Definition Of Firefighter
(PC 245(d)(1)
ALERT: Even though PC 245(d)(1) still refers to “when engaged in the performance of his or her duties…” Assembly Bill 105 (urgency legislation effective 9/28/98) deleted the language requiring that the individual be engaged in firefighting, fire suppression, fire prevention or fire investigation from PC 245.1. It now only requires that the victim be engaged in the performance of his duties. The bill was in direct response to People v. Bechler (98) 61 CA4th 373 [71 CR2d 532].) Hence, it still shouldn’t apply to an off-duty firefighter.
*For offenses prior to 9/28/98, modify CJ 9.20, Element 2, as follows [added language is underlined; deleted language is between << >>]:
2. The person upon whom the assault was committed was a <<[peace officer] [>> firefighter ASSOCIATED WITH A FIRE DEPARTMENT, FIRE PROTECTION OR FIREFIGHTING AGENCY OF [THE] [A] [AN] [FEDERAL GOVERNMENT] [STATE OF CALIFORNIA] [CITY] [COUNTY] [CITY AND COUNTY] [DISTRICT] [OTHER PUBLIC OR MUNICIPAL CORPORATION] [POLITICAL SUBDIVISION OF THIS STATE]<<[other]>>; and
*Modify CJ 9.20, Element 3, as follows [added language is underlined; deleted language is between << >>]:
3. At the time of the assault, the <<[peace officer] [>>firefighter <<[other]>> was engaged in <<the performance of [his] [her] duties>> FIREFIGHTING, FIRE SUPERVISION, FIRE SUPPRESSION, FIRE PREVENTION OR FIRE INVESTIGATION;
Points and Authorities
Prior to 9/28/98, firefighters acting as paramedics or rescue personnel were not “firefighters” for the purposes of PC 245(d)(1). To be protected under the statute, the victim must be associated with a fire department, fire protection or firefighting agency of one of the public entities mentioned in PC 245.1, and at the time of the assault, engaged in “firefighting, fire supervision, fire suppression, fire prevention or fire investigation.” (People v. Bechler (98) 61 CA4th 373, 378 [71 CR2d 532].)
After 9/28/98 use CJ 9.20.
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally FORECITE PG VII(C).]
