A conviction for attempting to deter an executive officer in the performance of his duties (Pen. Code, § 69) requires proof that the defendant knew the person he attempted to deter was an executive officer. A jury convicted Atkins of attempting to deter and resisting an executive officer in the performance of his duties. In response to a jury question whether the offense required proof that Atkins knew the person he attempted to deter was an executive officer, the trial court responded no. On appeal, he challenged the jury instruction and the trial court’s response to the jury’s question. Held: Reversed. Penal Code section 69 may be committed in one of two ways: (1) attempting by threats or violence to deter an executive officer from performing a duty impose by law; or (2) “knowingly” resisting by force or violence an executive officer in the performance of his duties, requiring knowledge the person resisted is an executive officer. Here, the prosecution proceeded on both theories. The text of section 69 does not resolve whether a defendant must know they are deterring an executive officer under the first theory. However, the statute’s purpose is to prohibit the use of threats or violence in an attempt to interfere with executive action. To serve that purpose, the first way of violating section 69 also requires that the defendant actually know the person he is attempting to deter is an executive officer. The court also concluded that the knowledge requirement does not include the “reasonably should have known” standard. (Compare caselaw interpreting Pen. Code, § 148, subd. (a).) Here, the jury instruction did require proof that Atkins “intended” to prevent or deter an executive officer from performing his duties, implicitly requiring the jury to find that the perpetrator knew the object of his actions was an executive officer. Atkins’ challenge amounted to a contention that the instruction was incomplete, which requires an objection. Atkin’s did not object to the instruction, so he waived his challenge for purposes of appellate review.

When responding to the jury’s question, the trial court prejudicially erred by stating there was no requirement that defendant believed the person was an executive police officer. Although Atkin’s did not object to the trial court’s answer to the jury’s question, the court reviewed the challenge to the trial court’s supplemental jury instruction. No objection to an instruction is required for appellate review of a claim the instruction omitted an element of the offense. Here, the trial court’s answer to the jury’s question incorrectly described a material element of the offense. The Court of Appeal concluded the trial court’s error was prejudicial under Chapman. The court could not determine that the jury convicted Atkins solely under the second theory of violating section 69 due to the prosecution’s argument, the jury instructions, and the jury’s question. Thus, it held the People had not overcome the presumption of prejudice.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/H044999.PDF