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People v. Prescott5/22/2002
me of obstructing an executive officer in the performance of their duties.
In People v. Wilkins (1993) 14 Cal.App.4th 761, amongst other charges, the defendant was charged with taking a peace officer's weapon (baton) while obstructing him in the performance of his duties (Pen. Code, § 148, subd. (b)), and forcibly resisting a peace officer in the performance of his duties (Pen. Code, § 69). Defendant's defense was predicated on a claim that the officer was not engaged in the lawful performance of his duties at the time of defendant's actions. If the officer was not lawfully performing his duties, the defendant would not be guilty of either offense, as it is a necessary element that the prosecution prove, beyond a reasonable doubt, the officer was lawfully performing his duties at the time of the alleged conduct by defendant. (Id. at p. 776.) The court recognized the jury was not properly instructed on exigent circumstances, which would support the officer's actions in entering the defendant's home to arrest him without a warrant. The court concluded this was an error, but found it did not require reversal of the convictions because the error was harmless beyond a reasonable doubt. (Id. at p. 779.)
"The long-standing rule in California and other jurisdictions is that a defendant cannot be convicted of an offense against a peace officer `"engaged in ... the performance of ... [his or her] duties"' unless the officer was acting lawfully at the time the offense against the officer was committed. [Citations.] `The rule flows from the premise that because an officer has no duty to take illegal action, he or she is not engaged in "duties," for purposes of an offense defined in such terms, if the officer's conduct is unlawful.... [ ] ... he lawfulness of the victim's conduct forms part of the corpus delicti of the offense.' [Citation.]" (In re Manuel G., supra, 16 Cal.4th p. 815, italics omitted.)
When there are disputed facts as to whether officers are acting in lawful performance of their duties the issue "must be submitted to the jury considering an engaged-in-duty element, since the lawfulness of the victim's conduct forms part of the corpus delicti of the offense." (People v. Gonzalez, supra, 51 Cal.3d at p. 1217.) Here the jury was not instructed on the duties of correctional officers, nor were they instructed on appellant's lawful use of self-defense. After reviewing the record we cannot say this error was harmless beyond a reasonable doubt. The questions asked by the jury indicate this was an issue in their decision, considering they were told that the battery on Officer Bicknell could have occurred during the same time frame appellant was struggling with the named victims in count two.
II.
CALJIC NO. 17.41.1
Appellant contends that CALJIC No. 17.41.1 "infringes on fundamental constitutional rights, to wit, the right of a criminal defendant to the sort of jury trial contemplated by the Sixth Amendment and the right of citizens serving as jurors to freedom of speech and association, rights that are guaranteed by the First Amendment."
Respondent counters, asserting that the error, if any, was waived by the failure of appellant to object below to the giving of this instruction. Respondent further contends, that if the giving of this instruction was error, and the issue was not waived, any error was harmless beyond a reasonable doubt.
Any error in instructing the jury with CALJIC No. 17.41.1 was harmless.
The trial court informed the jury pursuant to CALJIC No. 17.41.1 that: "The integrity of a trial requires that jurors at all times during their deliberations conduct themselves as required by these i
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