CALCRIM No. 1226. Defense to Kidnapping: Citizen’s Arrest (Pen. Code, §§ 207(f)(2), 834, 837)

Judicial Council of California Criminal Jury Instructions (2022 edition)

Download PDF
Bg427
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
person may make an arrest. (See Pen. Code, § 837.) If the second alternative is
987
Copyright Judicial Council of California
Bg428
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 (4th ed. 2012) Crimes Against the
Person, §§ 281, 291.
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
988
Copyright Judicial Council of California

© Judicial Council of California.