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F 9.81 n1 Removal of Firearm: Jury Must Resolve “Scientifically Verifiable” Element (PC 148).
In its January 1991 pocket part the CALJIC Committee states that “it takes no position” as to whether the court or jury should determine the scientifically verifiable procedure required by Act 7. However, since the statutory acts appear to be elements of the offense they must be determined by the jury under the 6th Amendment right to trial by jury and under 14th Amendment due process principles. (See People v. Figueroa (86) 41 C3d 714, 733 [224 CR 719]; see also FORECITE PG VII(C).)
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.”
NOTE: The apparent intent of this amendment was 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 9.81 n2 Improper To Refer To The Prosecution as “The People.”
Reference to the prosecution as “The People” may implicate the defendant’s state and federal constitutional rights to due process and fair trial by jury. (See FORECITE F 0.50d.) Any reference to “The People” should be changed to “The Prosecution.”
F 9.81a
Felony Resisting Arrest:
Attempted Removal of Firearm – Clarification Of Intent Element
(PC 148(d))
*The paragraph following the listing of the five statutory elements in CJ 9.81 (1990 new) should be modified to provide as follows:
In addition to the five elements set forth above, the People must also prove beyond a reasonable doubt the existence of any one of the following circumstances:
Points and Authorities
PC 148(d) provides that every person who “attempts to remove or take a firearm from the person or immediate presence of a public officer or peace officer” while resisting arrest is guilty of a criminal offense. Paragraph two of subdivision (d) provides as follows:
“In order to prove a violation of this subdivision, the prosecution shall establish that the defendant had the specific intent to remove or take the firearm by demonstrating that any of the following direct, but ineffectual, acts occurred:
“(1) The officer’s holster strap was unfastened by the defendant.
“(2) The firearm was partially removed from the officer’s holster by the defendant.
“(3) The firearm safety was released by the defendant.
“(4) An independent witness corroborates that the defendant stated that he or she intended to remove the firearm and the defendant actually touched the firearm.
“(5) An independent witness corroborates that the defendant actually had his or her hand on the firearm and tried to take the firearm away from the officer who was holding it.
“(6) The defendant’s fingerprint was found on the firearm or holster.
“(7) Physical evidence authenticated by a scientifically verifiable procedure established that the defendant touched the firearm.
“(8) In the course of any struggle, the officer’s firearm fell and the defendant attempted to pick it up.”
The problem with this statutory scheme is that it violates federal constitutional principles of due process by creating a conclusive presumption of the specific intent element of the offense by the listing of the acts specified in the statute.
Clearly, the specific intent to remove or take the firearm from the officer is an element of the offense. Not only does the statute specifically reference such an intent, but it is well settled that a necessary element of any attempt offense is the specific intent to commit the offense. (People v. Ross (88) 205 CA3d 1548, 1554 [253 CR 178].) However, by providing that the necessary specific intent may be shown by establishing any of the eight listed acts, the statute sets up a conclusive presumption of the specific intent element. (See Carella v. California (89) 491 US 263, 265 [105 LEd2d 218; 109 SCt 2419] [conclusive presumption of intent to commit fraud based on proof of historical facts was held to be violation of due process].)
Therefore, the statute violates settled due process principles which protect “the accused against conviction accept upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” (In re Winship (70) 397 US 358, 364 [25 LEd2d 368].)
Moreover, it is a violation of due process for a statutory scheme to relieve or shift the burden of the prosecution to prove each of the statutorily required elements. (Mullaney v. Wilbur (75) 421 US 684, 699 [44 LEd2d 508]; Sandstrom v. Montana (79) 442 US 510, 520-24 [61 LEd2d 39; 99 SCt 2450]; see also, PC 1096; People v. Vann (74) 12 C3d 220, 225-28 [115 CR 352].)
Nor do the acts specified in the statute establish the requisite intent as a matter of law. In fact, acts six and seven are simply that the defendant touched the gun or holster. Such a showing does not even establish that the touching was intentional nor that an intentional touching was for the purpose of taking or removing the weapon.
In sum, to render the statute valid and constitutional rather than invalid and unconstitutional (People v. Amor (74) 12 C3d 20, 30 [114 CR 765]) it must be construed in such a manner that the acts listed in the statute do not create a conclusive presumption of the requisite specific intent. Hence, rather than instructing the jury that the specific intent is demonstrated by the enumerated acts, the jury should be instructed that the prosecution must prove both the specific intent to remove or take the weapon and one of the enumerated circumstances.
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).]
F 9.81b
Felony Resisting Arrest:
“Should Know” Standard Requires Consideration Of A Reasonable Person
In Defendant’s Position
(PC 148(d))
*Add to CJ 9.81:
[See FORECITE F 7.32a.]
F 9.81c
Resisting Arrest: Verbal Statements Not Sufficient
*Modify CJ 9.81 as follows:
[See FORECITE F 9.80b]
