Return to CALJIC Part 9-12 – Contents
F 9.80 n1 Removal Of Weapon May Not Be Charged In Addition To Resisting Arrest (PC 148).
PC 148 was revised, effective January 1, 1990, to include, in addition to the traditional resisting arrest offense, three separate offenses, for the removal or attempted removal of the officer’s weapon. (PC 148(b); PC 148(c); PC 148(d).) While the removal or attempted removal of the weapon may be substantively charged as an offense independent of resisting arrest, when a violation of subsection PC 148(b), PC 148(c) or PC 148(d) is charged the statute expressly precludes an additional charge of resisting arrest under PC 148(a). (See PC 148(e).) However, as of January 1, 1991, multiple convictions are permitted when “more than one officer [etc.] are victims.”
F 9.80 n2 Removal of Firearm: Multiple Acts Against The Same Officer Permits Only One Conviction (PC 148).
The apparent intent of this amendment is to permit multiple convictions for separate acts committed against separate officers. If both acts are committed against the “same officer,” then only one conviction should be permitted even if another officer was present. (See full text of PC 148(e) as amended.)
F 9.80 n3 THIS ENTRY HAS BEEN DELETED. SEE FORECITE F 9.81 n1.
F 9.80 n4 Removal of Firearm: Definition Of Peace Officer Per PC 830.1 (PC 148).
See FORECITE F 9.20 n2.
F 9.80 n5 Resisting Arrest: Excessive Force and Deadly Force.
A defendant may not be convicted of resisting arrest if the arresting officer used excessive force in violation of the 4th Amendment or deadly force when the suspect did not pose a threat of serious physical harm to the officer or others. (See Tennessee v. Garner (85) 471 US 1, 11 [85 LEd2d 1; 105 SCt 1694]; see also, Fikes v. Cleghorn (9th Cir. 1995) 47 F3d 1011.) In the case of excessive force, the jury must be instructed to determine whether, under the totality of the circumstances, the force used by the officers against the defendant was reasonable in light of all the surrounding circumstances from the viewpoint of a reasonable police officer at the scene of the arrest. In the case of deadly force, the jury should additionally be instructed that deadly force is only justified if the officer has probable cause to believe that a suspect poses a threat of serious physical harm to the officer or others. (See Fikes 47 F3d at 1014.)
F 9.80a
Felony Resisting Arrest:
“Should Know” Standard Requires Consideration Of A Reasonable
Person In Defendant’s Position
(PC 148)
*Add to CJ 9.80:
[See FORECITE F 7.32a.]
F 9.80b
Resisting Arrest: Verbal Statements Not Sufficient
*Modify CJ 9.80 as follows:
The prosecution is required to prove that the defendant “resisted, delayed or obstructed” by actual conduct, whether active or passive. Verbal statements of the defendant do not constitute actual conduct.
Points and Authorities
Criminal liability may not be predicated upon verbal opposition or challenge to police conduct because (1) a verbal opposition does not “resist, delay or obstruct” the police and (2) even fighting words uttered to a police officer are protected by the 1st Amendment. (See FORECITE F 16.102 n3.) Because a juror could reasonably assume that verbal statements constitute “resist, delay or obstruction,” the jury should be instructed as to the limitation of those terms to actual conduct.
An attempt to intimidate the suspected victim to prevent the victim from talking to the police impedes the investigation and may be the basis for a violation of PC 148. (People v. Green (97) 51 CA4th 1433 [59 CR2d 913].)
In cases where this issue is factually material, there is a sua sponte duty to define these terms which have acquired a technical, legal meaning. (See People v. Howard (88) 44 C3d 375, 408 [243 CR 842]; see also FORECITE PG II(B).)
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).]
NOTES: [An unpublished opinion which held that the above terms must be defined sua sponte is available to FORECITE subscribers. Ask for Opinion Bank # O-188.]
F 9.80c
Removal of Peace Officer’s Weapon: Definition Of “Take” Or “Remove”
(PC 148(c))
*Add to CJ 9.80:
The words “take” or “remove” as used in this instruction mean a physical action such as grabbing, holding, seizing, pushing, lifting, picking up, or similar motions.
Points and Authorities
People v. Matthews (99) 70 CA4th 164, 173 [82 CR2d 502].
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).]
