White

Bennet Frank White (White) was charged with attempting to rescue a person from lawful custody (Pen. Code, § 4550; count 3; all statutory references are to the Penal Code unless otherwise specified), assault with a deadly weapon and by means of force likely to produce great bodily injury on a peace officer (§ 245, subd. (b); count 4), battery on a police officer (§§ 242, 243; count 5), and resisting arrest (§ 148; count 6). A jury found her guilty of counts 4 and 6 (§ 245, subd. (b) and § 148), and not guilty of the remaining counts. She appeals from the judgment of convictions.

We conclude the court’s instructions failed to adequately inform the jury of the relationship between excessive force by the police officer in making the arrest on defendant’s rights. The instructions should have included the explanation that where excessive force is used in making what otherwise is a technically lawful arrest, the arrest becomes unlawful and a defendant may not be convicted of an offense which requires the officer to be engaged in the performance of his duties (§§ 245, subd. (b), 243 or 148). A defendant may nevertheless be convicted of other crimes not including that element (§§…