Reversal required where instructions given on assault by a public officer referred the jury to “other instructions” for the definition of “without legal necessity,” but that term was never actually defined. A jury convicted defendant, a former sheriff’s deputy, of assault by a public officer (Pen. Code, § 149). The offense arose when defendant, who was guarding the emergency room of San Francisco General Hospital, detained and arrested a man who was being disruptive and threatening. Defendant asserted instructional error on appeal. Held: Reversed. There are no standard CALCRIM instructions for a violation of Penal Code section 149, which criminalizes a public officer who, under color of authority and without legal necessity, assaults or beats any person. Here, the prosecutor fashioned instructions that included a modification of CALCRIM No. 2670 (“Lawful Performance: Peace Officer”), which described circumstances in which an officer is “not legally performing his or her duties,” and set forth when an officer may legally detain and arrest a person. The instruction also provided definitions of “reasonable suspicion” and “probable cause.” The trial court provided the jury with the statutory elements of section 149, then told it that “without legal necessity” would be defined in another instruction, meaning CALCRIM No. 2670. However, CALCRIM No. 2670 does not mention the words “without legal necessity.” As given, the instructions permitted the jury to find the prosecutor proved the “without legal necessity” element if it showed that defendant carried out an unlawful detention or used unreasonable force in making an otherwise lawful arrest or detention. This was prejudicial error. The instructions were confusing and misleading; the case was a close one (the jury deliberated for four days, asking questions); and the jury acquitted on other charged offenses.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/A147248.PDF