Section 2651 | CALCRIM (Jury Instructions)

[Someone who intends that a statement be understood as a threat does
not have to actually intend to carry out the threatened act [or intend to
have someone else do so].]
[A sworn member of
<insert name of agency that employs
peace offıcer>, authorized by
<insert appropriate section
from Pen. Code, § 830 et seq.> to
<describe statutory
authority>, is a peace officer.]
[The duties of (a/an)
<insert title of offıcer specified in Pen.
Code, § 830 et seq.> include
<insert job duties>.]
<When lawful performance is an issue, give the following paragraph and
Instruction 2670, Lawful Performance: Peace Offıcer.>
[A peace officer is not lawfully performing his or her duties if he or she
is (unlawfully arresting or detaining someone/ [or] using unreasonable or
excessive force in his or her duties). Instruction 2670 explains (when an
arrest or detention is unlawful/ [and] when force is unreasonable or
excessive).]
New January 2006; Revised August 2014, August 2016, September 2019, March
2021
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
In order to be “performing a lawful duty,” an executive officer, including a peace
officer, must be acting lawfully. (In re Manuel G. (1997) 16 Cal.4th 805, 816–817
[66 Cal.Rptr.2d 701, 941 P.2d 880]; People v. Gonzalez (1990) 51 Cal.3d 1179,
1217 [275 Cal.Rptr. 729, 800 P.2d 1159].) The court has a sua sponte duty to
instruct on lawful performance and the defendant’s reliance on self-defense as it
relates to the use of excessive force when this is an issue in the case. (People v.
Castain (1981) 122 Cal.App.3d 138, 145 [175 Cal.Rptr. 651]; People v. Olguin
(1981) 119 Cal.App.3d 39, 46–47 [173 Cal.Rptr. 663]; People v. White (1980) 101
Cal.App.3d 161, 167–168 [161 Cal.Rptr. 541].)
For this offense, “the relevant factor is simply the lawfulness of the official conduct
that the defendant (through threat or violence) has attempted to deter, and not the
lawfulness (or official nature) of the conduct in which the officer is engaged at the
time the threat is made.” (In re Manuel G., supra, 16 Cal.4th at p. 817.) Thus, if the
evidence supports the conclusion that the defendant attempted to deter the officer’s
current performance of a duty, the court should instruct on the lawfulness of that
duty. (Ibid.) Where the evidence supports the conclusion that the defendant
attempted to deter the officer from performing a duty in the future, the court should
only instruct on the lawfulness of that future duty. (Ibid.)
CRIMES AGAINST GOVERNMENT
CALCRIM No. 2651
531

to produce in the victim a fear that the threat will be carried out, a statute
proscribing such threats is not unconstitutional for lacking a requirement of
immediacy or imminence. Thus, threats may be constitutionally prohibited even
when there is no immediate danger that they will be carried out.” (People v. Hines
(1997) 15 Cal.4th 997, 1061 [64 Cal.Rptr.2d 594, 938 P.2d 388] [quoting In re M.S.
(1995) 10