California Criminal Jury Instructions (CALCRIM) (2017)

1226. Defense to Kidnapping: Citizen's Arrest

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1226.Defense to Kidnapping: Citizen’s Arrest (Pen. Code,
§§ 207(f)(2), 834, 837)
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>(;/.)]
[OR]
<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(;/.)]
[OR]
<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.
New January 2006
BENCH NOTES
Instructional Duty
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
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person may make an arrest. (See Pen. Code, § 837.) If the second alternative is
given, also give the bracketed paragraph defining “reasonable cause.”
AUTHORITY
• Instructional Requirements. Pen. Code, §§ 207(f)(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].
Secondary Sources
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[2][a] (Matthew Bender).
1227–1239. Reserved for Future Use
CALCRIM No. 1226 KIDNAPPING
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