1226. Defense to Kidnapping: Citizen's Arrest
The defendant is not guilty of kidnapping if (he/she) was making a lawful citizen's arrest. The defendant was making a lawful citizen's arrest if (he/she) acted because:
<Alternative A—person actually committed felony.>
[The person arrested committed <insert specific felony>(;/.)]
<Alternative B—reasonable cause to believe person committed felony.>
[ <Insert specific felony> had been committed, and the defendant had reasonable cause to believe the person arrested committed it(;/.)]
<Alternative C—person committed misdemeanor in defendant's presence.>
[The person arrested committed or attempted to commit <insert specific misdemeanor or infraction> in the defendant's presence.]
[Someone has reasonable cause if he or she knows facts that would persuade someone of reasonable caution that the person to be arrested has committed a crime.]
The People have the burden of proving beyond a reasonable doubt that the defendant was not making a lawful citizen's arrest. If the People have not met this burden, you must find the defendant not guilty of kidnapping.
The court has a sua sponte duty to instruct on making a citizen's arrest when there is sufficient evidence supporting each of the factors establishing the defense. (See People v. Barnett (1998) 17 Cal.4th 1044, 1151-1152 [74 Cal.Rptr.2d 121, 954 P.2d 384] [crime occurred before 1990 adoption of Pen. Code, § 207(e)(2); no obligation to instruct sua sponte if insubstantial evidence of defense].)
The three bracketed alternative paragraphs reflect the situations when a private person may make an arrest. (See Pen. Code, § 837.) If the second alternative is given, also give the bracketed paragraph defining "reasonable cause."
Instructional Requirements. Pen. Code, §§ 207(e)(2), 834, 837.
Arrest by Actual Restraint or Submission to Custody. Pen. Code, § 835.
Summoning Assistance in Making Arrest. Pen. Code, § 839.
Burden of Proof. See People v. Agnew (1940) 16 Cal.2d 655, 665-666 [107 P.2d 601] [defendant need only raise reasonable doubt regarding lawfulness of arrest as defense to false imprisonment charge]; People v. Tewksbury (1976) 15 Cal.3d 953, 963-964 [127 Cal.Rptr. 135, 544 P.2d 1335].
Presence Defined. People v. Lee (1984) 157 Cal.App.3d Supp. 9, 12 [204 Cal.Rptr. 667] [neither physical proximity nor sight is essential].
Public Offense Defined. Pen. Code, § 15; see People v. Tuck (1977) 75 Cal.App.3d 639, 644 [142 Cal.Rptr. 362] [public offense includes felony, misdemeanor, or infraction].
Reasonable Cause Defined. People v. Wilkins (1972) 27 Cal.App.3d 763, 767-768 [104 Cal.Rptr. 89] [proof of commission of felony not necessary when reasonable cause exists].
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against the Person, §§ 248, 255.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, § 142.14[a] (Matthew Bender).
(New January 2006)