Criminal Law

602. Attempted Murder: Peace Officer or Firefighter

If you find the defendant guilty of attempted murder [under Count ______], you must then decide whether the People have proved the additional allegation that (he/she) attempted to murder a (peace officer/firefighter).

To prove this allegation, the People must prove that:

1. <insert officer's name, excluding title> was a (peace officer/firefighter) lawfully performing (his/her) duties as a (peace officer/firefighter);

AND

2. When the defendant attempted the murder, the defendant knew, or reasonably should have known, that <insert officer's name, excluding title> was a (peace officer/ firefighter) who was performing (his/her) duties.

[A person who is employed as a police officer by <insert name of agency that employs police officer> is a peace officer.]

[A person employed by <insert name of agency that employs peace officer, e.g., "the Department of Fish and Game"> is a peace officer if <insert description of facts necessary to make employee a peace officer, e.g., "designated by the director of the agency as a peace officer">.]

[The duties of (a/an) <insert title of peace officer or firefighter> include <insert job duties>.]

[A firefighter includes anyone who is an officer, employee, or member of a (governmentally operated (fire department/fire protection or firefighting agency) in this state/federal fire department/federal fire protection or firefighting agency), whether or not he or she is paid for his or her services.]

<When lawful performance is an issue, give the following paragraph and Instruction 2670, Lawful Performance: Peace Officer.>

[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).]

Bench Notes

Instructional Duty

The court has a sua sponte duty to give this instruction defining the elements of the sentencing enhancement. (Apprendi v. New Jersey (2000) 530 U.S. 466, 475-476, 490 [120 S.Ct. 2348, 147 L.Ed.2d 435].)

In order to be "engaged in the performance of his or her duties," a peace officer must be acting lawfully. (People v. Gonzalez (1990) 51 Cal.3d 1179, 1217 [275 Cal.Rptr. 729, 800 P.2d 1159].) "[D]isputed facts bearing on the issue of legal cause must be submitted to the jury considering an engaged-in-duty element." (Ibid.) If excessive force is an issue, the court has a sua sponte duty to instruct the jury that the defendant is not guilty of the offense charged, or any lesser included offense in which lawful performance is an element, if the defendant used reasonable force in response to excessive force. (People v. Olguin (1981) 119 Cal.App.3d 39, 46-47 [173 Cal.Rptr. 663].) On request, the court must instruct that the prosecution has the burden of proving the lawfulness of the arrest beyond a reasonable doubt. (People v. Castain (1981) 122 Cal.App.3d 138, 145 [175 Cal.Rptr. 651].) If lawful performance is an issue, give the bracketed paragraph on lawful performance and the appropriate portions of CALCRIM No. 2670, Lawful Performance: Peace Officer.

The jury must determine whether the alleged victim is a peace officer. (People v. Brown (1988) 46 Cal.3d 432, 444-445 [250 Cal.Rptr. 604, 758 P.2d 1135].) The court may instruct the jury on the appropriate definition of "peace officer" from the statute (e.g., "a Garden Grove Regular Police Officer and a Garden Grove Reserve Police Officer are peace officers"). (Ibid.) However, the court may not instruct the jury that the alleged victim was a peace officer as a matter of law (e.g., "Officer Reed was a peace officer"). (Ibid.) If the alleged victim is a police officer, give the bracketed sentence that begins with "A person employed as a police officer." If the alleged victim is another type of peace officer, give the bracketed sentence that begins with "A person employed by."

Penal Code section 664(e) refers to the definition of peace officer used in Penal Code section 190.2(a)(7), which defines "peace officer" as "defined in Section 830.1, 830.2, 830.3, 830.31, 830.32, 830.33, 830.34, 830.35, 830.36, 830.37, 830.4, 830.5, 830.6, 830.10, 830.11, or 830.12."

Penal Code section 664(e) refers to the definition of firefighter used in Penal Code section 190.2(a)(9), which defines "firefighter" "as defined in Section 245.1."

The court may give the bracketed sentence that begins, "The duties of (a/an) <insert title . . . .> include," on request. The court may insert a description of the officer's duties such as "the correct service of a facially valid search . . . warrant." (People v. Gonzalez (1990) 51 Cal.3d 1179, 1222 [275 Cal.Rptr. 729, 800 P.2d 1159].)

Authority

Attempted Murder on a Peace Officer or Firefighter. Pen. Code, § 664(e).

Peace Officer Defined. Pen. Code, § 830 et seq.

Firefighter Defined. Pen. Code, § 245.1.

Secondary Sources

3 Witkin & Epstein, California Criminal Law (3d ed. 2000) Punishment, § 241.

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 141, Conspiracy, Solicitation, and Attempt, §§ 141.20[2], 141.21; Ch. 142, Crimes Against the Person, § 142.01[3][e] (Matthew Bender).

(New January 2006)