Justia Criminal Law Center California Criminal Jury Instructions (CALCRIM) (2023) Crimes Against Government CALCRIM No. 2761. Escape by Force or Violence (Pen. Code, § 4532(a)(2) & (b)(2))

CALCRIM No. 2761. Escape by Force or Violence (Pen. Code, § 4532(a)(2) & (b)(2))

Judicial Council of California Criminal Jury Instructions (2023 edition)

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2761.Escape by Force or Violence (Pen. Code, § 4532(a)(2) &

(b)(2))

The defendant is charged [in Count ] with (escape/ [or] attempted

escape) committed by force or violence [in violation of Penal Code

section 4532].

To prove that the defendant is guilty of this crime, the People must

prove that:

1. The defendant was ((arrested and booked for[,]/ [or] charged

with[,]/ [or] convicted of) a (misdemeanor/felony)/committed by

order of the juvenile court to an adult facility);

[2. The defendant was confined in (a/an) (county jail/city jail/prison/

industrial farm/industrial road camp);]

[2. The defendant was working on (a county road/ [or other] county

work) as an inmate;]

[2. The defendant was in the lawful custody of (an officer/ [or] a

person);]

[2. The defendant was confined in (a/an) (county jail/city jail/prison/

industrial farm/industrial road camp) but was authorized to be

away from the place of confinement in connection with a work

furlough program;]

[2. The defendant was confined in (a/an) (county jail/city jail/prison/

industrial farm/industrial road camp) but was away from the

place of confinement in connection with an authorized temporary

release;]

[2. The defendant was a participant in a home detention program;]

[2. The defendant was confined as an inmate in a hospital for

treatment even though no guard was present to detain the

defendant;]

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[3. The defendant (escaped/ [or] attempted to escape) from the (jail/

prison/farm/camp);]

[3. The defendant (escaped/ [or] attempted to escape) from the

custody of the (officer/ [or] person in charge of (him/her)) while

engaged in or going to or returning from the county work site;]

[3. The defendant (escaped/ [or] attempted to escape) from the

custody of the (officer/ [or] person) who had lawful custody of the

defendant;]

[3. The defendant (escaped/ [or] attempted to escape) from the (jail/

prison/farm/camp) by failing to return to the place of

confinement;]

[3. The defendant (escaped/ [or] attempted to escape) from the (jail/

prison/farm/camp) by failing to return to the place of

confinement;]

[3. The defendant (escaped/ [or] attempted to escape) from the place

of confinement in the home detention program;]

[3. The defendant (escaped/ [or] attempted to escape) from the place

of hospital confinement;]

AND

4. The defendant committed the (escape/ [or] attempted escape) by

force or violence.

[A person has been booked for a (misdemeanor/felony) if he or she has

been taken to a law enforcement office where an officer or employee has

recorded the arrest and taken the person’s fingerprints and photograph.]

[A person has been charged with a (misdemeanor/felony) if a formal

complaint, information, or indictment has been filed in court alleging

that the person committed a crime.]

Escape means the unlawful departure of a prisoner from the physical

limits of his or her custody. [It is not necessary for the prisoner to have

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left the outer limits of the institution’s property. However, the prisoner

must breach a wall or fence marking the security perimeter of the

correctional facility. It is not sufficient for the prisoner to be merely

outside the particular area within the facility where he or she is

permitted to be.]

[A prisoner also escapes if he or she willfully fails to return to his or her

place of confinement within the period that he or she was authorized to

be away from that place of confinement. Someone commits an act

willfully when he or she does it willingly or on purpose.]

To commit an act by force or violence means to wrongfully use physical

force against the property or person of another. [To use force against a

person means to touch the other person in a harmful or offensive

manner. The slightest touching can be enough if it is done in a rude or

angry way. Making contact with another person, including through his

or her clothing, is enough. The touching does not have to cause pain or

injury of any kind.]

[The People must prove that the defendant personally used force or

violence or aided and abetted another in using force or violence. Mere

knowledge that someone else used force or violence is not enough.

Instruction[s] <insert instruction numbers; see Bench Notes>

explain[s] when a person aids and abets another.]

New January 2006; Revised August 2013

BENCH NOTES

Instructional Duty

The court has a sua sponte duty to give this instruction defining the elements of the

crime.

In elements 2 and 3, select the location where the defendant was allegedly confined

or the program that the defendant allegedly escaped from and use the appropriate

alternative paragraphs.

In the definition of escape, give the bracketed sentence if there is an issue as to

whether the defendant went far enough to constitute an escape. (See People v.

Lavaie (1999) 70 Cal.App.4th 456, 459-461 [82 Cal.Rptr.2d 719].)

Give the bracketed paragraph on willful failure to return if appropriate based on the

evidence.

In the definition of force or violence, use the bracketed sentences if the prosecution

alleges that the defendant used force against a person. (People v. Lozano (1987) 192

Cal.App.3d 618, 627 [237 Cal.Rptr. 612] [meaning of “force” in Pen. Code, § 4532

equivalent to simple battery].)

Give the bracketed paragraph that begins with “The People must prove that the

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defendant personally” if this is an issue in the case. (People v. Moretto (1994) 21

Cal.App.4th 1269, 1278 [26 Cal.Rptr.2d 719].) Give also CALCRIM No. 400,

Aiding and Abetting: General Principles, and CALCRIM No. 401, Aiding and

Abetting: Intended Crimes.

If the defendant is charged with attempt, give CALCRIM No. 460, Attempt Other

Than Attempted Murder. (People v. Gallegos (1974) 39 Cal.App.3d 512, 517 [114

Cal.Rptr. 166].)

Defenses - Instructional Duty

If there is sufficient evidence of necessity, the court has a sua sponte duty to give

CALCRIM No. 2764, Escape: Necessity Defense. (People v. Condley (1977) 69

Cal.App.3d 999, 1008-1013 [138 Cal.Rptr. 515]; People v. Lovercamp (1974) 43

Cal.App.3d 823, 831-832 [118 Cal.Rptr. 110].)

AUTHORITY

• Elements. Pen. Code, § 4532(a)(2) & (b)(2).

• Specific Intent Not an Element of Completed Escape. People v. George (1980)

109 Cal.App.3d 814, 819 [167 Cal.Rptr. 603].

• Attempt to Escape - Must Instruct on Direct Act and Specific Intent. People v.

Gallegos (1974) 39 Cal.App.3d 512, 517 [114 Cal.Rptr. 166].

• Escape Defined. People v. Lavaie (1999) 70 Cal.App.4th 456, 459-461 [82

Cal.Rptr.2d 719].

• Force or Violence Defined. People v. Lozano (1987) 192 Cal.App.3d 618, 627

[237 Cal.Rptr. 612]; People v. Bravott (1986) 183 Cal.App.3d 93, 97 [227

Cal.Rptr. 810].

• Force Includes Damage to Property. People v. White (1988) 202 Cal.App.3d 862,

866 [249 Cal.Rptr. 165]; People v. Bravott (1986) 183 Cal.App.3d 93, 97 [227

Cal.Rptr. 810].

• Defendant Must Personally Use Force or Aid and Abet Another. People v.

Moretto (1994) 21 Cal.App.4th 1269, 1278 [26 Cal.Rptr.2d 719].

• Arrested Defendant Must Be Booked Before Statute Applies. People v. Diaz

(1978) 22 Cal.3d 712, 716-717 [150 Cal.Rptr. 471, 586 P.2d 952]; see also

People v. Trotter (1998) 65 Cal.App.4th 965, 967, 971 [76 Cal.Rptr.2d 898].

• Arrest of Probationer - Booking Not Required. People v. Cisneros (1986) 179

Cal.App.3d 117, 120-123 [224 Cal.Rptr. 452].

• Must Be Confined in Adult Penal Institution. People v. Rackley (1995) 33

Cal.App.4th 1659, 1668 [40 Cal.Rptr.2d 49].

LESSER INCLUDED OFFENSES

Escape carries a more severe penalty if done with force or violence. (Pen. Code,

§ 4532(a)(2) & (b)(2).) If the defendant is charged with using force or violence, then

the escape without force or violence is a lesser included offense. (People v. Gallegos

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(1974) 39 Cal.App.3d 512, 518-519 [114 Cal.Rptr. 166].) Note that the court must

instruct on all the elements of escape with force or violence and must then give a

separate instruction on the lesser offense, stating all of the elements except force or

violence. (People v. Lozano (1987) 192 Cal.App.3d 618, 633 [237 Cal.Rptr. 612].)

The court may not give the jury a verdict form asking specifically if the element of

force or violence has been proved. (Ibid.)

RELATED ISSUES

See Related Issues section in CALCRIM No. 2760, Escape.

SECONDARY SOURCES

2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against

Governmental Authority, §§ 86-102.

1 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 11, Arrest,

§ 11.06[3] (Matthew Bender).

3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,

Defenses and Justifications, § 73.05 (Matthew Bender).

5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 94,

Prisoners’ Rights, § 94.20[2] (Matthew Bender).

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Page last reviewed May 2023