CALCRIM No. 2670. Lawful Performance: Peace Officer

Judicial Council of California Criminal Jury Instructions (2022 edition)

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F. LAWFUL PERFORMANCE
2670.Lawful Performance: Peace Officer
The People have the burden of proving beyond a reasonable doubt that
<insert name, excluding title> was lawfully performing (his/
her) duties as a peace officer. If the People have not met this burden, you
must find the defendant not guilty of <insert name[s] of all
offense[s] with lawful performance as an element>.
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 when making or attempting to make an otherwise lawful
arrest or detention).
<A. Unlawful Detention>
[A peace officer may legally detain someone if [the person consents to the
detention or if]:
1. Specific facts known or apparent to the officer lead him or her to
suspect that the person to be detained has been, is, or is about to
be involved in activity relating to crime;
AND
2. A reasonable officer who knew the same facts would have the
same suspicion.
Any other detention is unlawful.
In deciding whether the detention was lawful, consider evidence of the
officer’s training and experience and all the circumstances known by the
officer when he or she detained the person.]
<B. Unlawful Arrest>
[A peace officer may legally arrest someone [either] (on the basis of an
arrest warrant/ [or] if he or she has probable cause to make the arrest).
Any other arrest is unlawful.
Probable cause exists when the facts known to the arresting officer at the
time of the arrest would persuade someone of reasonable caution that
the person to be arrested has committed a crime.
In deciding whether the arrest was lawful, consider evidence of the
officer’s training and experience and all the circumstances known by the
officer when he or she arrested the person.
<Arrest without warrant for most misdemeanors or infractions>
[In order for an officer to lawfully arrest someone without a warrant for
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a misdemeanor or infraction, the officer must have probable cause to
believe that the person to be arrested committed a misdemeanor or
infraction in the officer’s presence.]
<Arrest without warrant for felony or misdemeanor not requiring commission
in offıcers presence; see Bench Notes>
[In order for an officer to lawfully arrest someone for (a/an) (felony/ [or]
<insert misdemeanor not requiring commission in offıcer’s
presence>) without a warrant, the officer must have probable cause to
believe the person to be arrested committed (a/an) (felony/ [or]
<insert misdemeanor not requiring commission in offıcer’s
presence>). However, it is not required that the offense be committed in
the officer’s presence.]
<insert crime that was basis for arrest> is (a/an) (felony/
misdemeanor/infraction).
<Entering home without warrant>
[In order for an officer to enter a home to arrest someone without a
warrant [and without consent]:
1. The officer must have probable cause to believe that the person to
be arrested committed a crime and is in the home;
AND
2. Exigent circumstances require the officer to enter the home
without a warrant.
The term exigent circumstances describes an emergency situation that
requires swift action to prevent (1) imminent danger to life or serious
damage to property, or (2) the imminent escape of a suspect or
destruction of evidence.]
[The officer must tell that person that the officer intends to arrest him or
her, why the arrest is being made, and the authority for the arrest. [The
officer does not have to tell the arrested person these things if the officer
has probable cause to believe that the person is committing or
attempting to commit a crime, is fleeing immediately after having
committed a crime, or has escaped from custody.] [The officer must also
tell the arrested person the offense for which he or she is being arrested
if he or she asks for that information.]]
<When giving either paragraph A on unlawful detention or paragraph B on
unlawful arrest, give the following paragraph also, if applicable>
[Photographing or recording a peace officer while the officer is in a
public place or while the person photographing or recording is in a place
where he or she has the right to be is not, by itself, a crime nor a basis
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for (reasonable suspicion to detain/ [nor] probable cause to arrest).]
<C. Use of Force by a Peace Offıcer>
[Special rules control the use of force.]
[A peace officer may use reasonable non-deadly force to arrest or detain
someone, to prevent escape, to overcome resistance, or in self-defense.]
[A peace officer may use deadly force if (he/she):
1. Reasonably believed, based on the totality of the circumstances,
that the force was necessary to defend against an imminent threat
of death or serious bodily injury to the officer or another person;
OR
2. Reasonably believed, based on the totality of the circumstances,
that:
a. <insert name of fleeing felon>was fleeing;
b. The force was necessary to arrest or detain
<insert name of fleeing felon> for the crime of
<insert name of felony>;
c. The commission of the crime of <insert name of
felony> created a risk of or resulted in death or serious bodily
injury to another person;
AND
d. <insert name of fleeing felon> would cause death
or serious bodily injury to another person unless immediately
arrested or detained.]
[Deadly force is force that creates a substantial risk of causing death or
serious bodily injury. It includes, but is not limited to, the discharge of a
firearm. It does not require that the encounter result in the death of the
person against whom the force was used.]
[A serious bodily injury means a serious impairment of physical
condition. Such an injury may include[, but is not limited to]: (loss of
consciousness/ concussion/ bone fracture/ protracted loss or impairment
of function of any bodily member or organ/ a wound requiring extensive
suturing/ [and] serious disfigurement).]
[A threat of death or serious bodily injury is imminent when, based on
the totality of the circumstances, a reasonable officer in the same
situation would believe that a person has the present ability, opportunity,
and apparent intent to immediately cause death or serious bodily injury
to the peace officer or to another person. An imminent harm is not
merely a fear of future harm, no matter how great the fear and no
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matter how great the likelihood of the harm, but is one that, from
appearances, must be instantly confronted and addressed.]
Totality of the circumstances means all facts known to the peace officer at
the time, including the conduct of the defendant and
<insert name of offıcer> leading up to the use of deadly force.
[In considering the totality of the circumstances, you may consider
whether:
[• Prior to the use of force, the officer (identified/ [or] attempted to
identify) himself or herself as a peace officer and (warned/ [or]
attempted to warn) that deadly force may be used(;/.)]
[• Prior to the use of force, the officer had objectively reasonable
grounds to believe the defendant was aware that the officer was a
peace officer and that deadly force may be used(;/.)]
[• The officer was able, under the circumstances, [[to [identify] [or]
[attempt to identify]] himself or herself as a peace officer] [and]
[to [warn] [or] [attempt to warn] that deadly force may be used].]
[A peace officer who makes or attempts to make an arrest need not
retreat or stop because the person being arrested is resisting or
threatening to resist. A peace officer does not lose (his/her) right to self-
defense by using objectively reasonable force to arrest or to prevent
escape or to overcome resistance.]
<D. Use of Force by a Person Being Arrested or Detained>
[If a person knows, or reasonably should know, that a peace officer is
arresting or detaining him or her, the person must not use force or any
weapon to resist an officer’s use of reasonable force. [However, you may
not find the defendant guilty of resisting arrest if the arrest was
unlawful, even if the defendant knew or reasonably should have known
that the officer was arresting him or her.]]
If a peace officer uses unreasonable or excessive force while (arresting or
attempting to arrest/ [or] detaining or attempting to detain) a person,
that person may lawfully use reasonable force to defend himself or
herself.
A person being arrested or detained uses reasonable force when he or
she: (1) uses that degree of force that he or she actually believes is
reasonably necessary to protect himself or herself from the officer’s use
of unreasonable or excessive force; and (2) uses no more force than a
reasonable person in the same situation would believe is necessary for
his or her protection.]
New January 2006; Revised August 2016, March 2022
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BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction if there is sufficient
evidence that the officer was not lawfully performing his or her duties and lawful
performance is an element of the offense. (People v. Gonzalez (1990) 51 Cal.3d
1179, 1217 [275 Cal.Rptr. 729, 800 P.2d 1159] [“disputed facts bearing on the issue
of legal cause must be submitted to the jury considering an engaged-in-duty
element”]; People v. Olguin (1981) 119 Cal.App.3d 39, 46-47 [173 Cal.Rptr. 663];
People v. Castain (1981) 122 Cal.App.3d 138, 145 [175 Cal.Rptr. 651]; People v.
White (1980) 101 Cal.App.3d 161, 166-168 [161 Cal.Rptr. 541].)
Give section A if there is an issue as to whether the officer had a legal basis to
detain someone. Give section B if there is an issue as to whether the officer had a
legal basis to arrest someone. Give section C if there is an issue as to whether the
officer used excessive force in arresting or detaining someone. If the issue is
whether the officer used excessive force in some other duty, give section C with any
necessary modifications.
If this instruction is only relevant to a charge of violating Penal Code section 148,
the court must not give the bracketed sentence in section C that begins with “If a
person knows, or reasonably should know, that a peace officer is arresting or
detaining him or her.” (People v. White, supra, 101 Cal.App.3d at pp. 168-169
[court must clarify that Penal Code section 834a does not apply to charge under
section 148].) If the case does not involve an alleged violation of Penal Code
section 148 (either as a charge offense or as a lesser), the court should give that
bracketed sentence. If the case involves an alleged violation of Penal Code section
148 as well as other offenses in which lawful performance is an element, the court
may give the bracketed sentence but must also give the sentence that begins with
“However, you may not find the defendant guilty of resisting arrest.”
When giving the bracketed section under the heading “A. Unlawful Detention,” if
there is a factual issue about whether the person was in fact “detained,” the court
should provide the jury with a definition of when a person is detained. Similarly, if
there is a factual issue as to whether the person consented to the detention, the court
should instruct on consent. (See People v. Wilkins (1993) 14 Cal.App.4th 761, 777
[17 Cal.Rptr.2d 743].)
In the section headed “B. Unlawful Arrest,” two options are provided for arrests
without a warrant. The general rule is that an officer may not make an arrest for a
misdemeanor or infraction unless the offense was committed in the officers
presence. (See Pen. Code, § 836(a)(1).) Statutes provide exceptions to this
requirement for some misdemeanors. (See, e.g., Pen. Code, § 836(c) [violation of
domestic violence protective or restraining order]; Veh. Code, § 40300.5 [driving
under the influence plus traffic accident or other specified circumstance].) If the
officer made the arrest for an infraction or a misdemeanor falling under the general
rule, give the bracketed paragraph under the heading “Arrest without warrant for
most misdemeanors or infraction.” If the officer made the arrest for a felony or
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misdemeanor not requiring commission in the officers presence give the bracketed
paragraph under the heading “Arrest without warrant for felony or misdemeanor not
requiring commission in officers presence.” The court may also give both bracketed
paragraphs, if appropriate.
Give the bracketed section about entering a home without a warrant if the arrest
took place in a home. (People v. Wilkins (1993) 14 Cal.App.4th 761, 777 [17
Cal.Rptr.2d 743].) If there is a factual issue about whether the officer had consent to
enter the home, the court must also instruct on the legal requirements for consent.
(Ibid.)
AUTHORITY
Instructional Duty. People v. Gonzalez (1990) 51 Cal.3d 1179, 1217 [275
Cal.Rptr. 729, 800 P.2d 1159]; People v. Olguin (1981) 119 Cal.App.3d 39,
46-47 [173 Cal.Rptr. 663]; People v. Castain (1981) 122 Cal.App.3d 138, 145
[175 Cal.Rptr. 651]; People v. White (1980) 101 Cal.App.3d 161, 166-168 [161
Cal.Rptr. 541].
Lawful Detention. People v. Celis (2004) 33 Cal.4th 667, 674-675 [16
Cal.Rptr.3d 85, 93 P.3d 1027].
Lawful Arrest. Pen. Code, §§ 834-836, 841.
Probable Cause Defined. People v. Celis (2004) 33 Cal.4th 667, 673 [16
Cal.Rptr.3d 85, 93 P.3d 1027]; People v. Fischer (1957) 49 Cal.2d 442, 446 [317
P.2d 967].
Officers Training and Experience Relevant. People v. Lilienthal (1978) 22
Cal.3d 891, 899 [150 Cal.Rptr. 910, 587 P.2d 706]; People v. Clayton (1970) 13
Cal.App.3d 335, 338 [91 Cal.Rptr. 494].
Duty to Submit to Arrest or Detention. Pen. Code, § 834(a); People v. Allen
(1980) 109 Cal.App.3d 981, 985 [167 Cal.Rptr. 502]; People v. Curtis (1969) 70
Cal.2d 347, 351 [74 Cal.Rptr. 713, 450 P.2d 33].
Exigent Circumstances to Enter Home. People v. Wilkins (1993) 14
Cal.App.4th 761, 777 [17 Cal.Rptr.2d 743]; People v. Ramey (1976) 16 Cal.3d
263, 276 [127 Cal.Rptr. 629, 545 P.2d 1333]; People v. Hoxter (1999) 75
Cal.App.4th 406, 414, fn. 7 [89 Cal.Rptr.2d 259].
Reasonable Force. Pen. Code, §§ 692, 693.
Excessive Use of Deadly Force. Pen. Code, § 835a.
Excessive Force Makes Arrest Unlawful. People v. White (1980) 101
Cal.App.3d 161, 166-168 [161 Cal.Rptr. 541].
Excessive Force Triggers Right to Self-Defense With Reasonable Force. People
v. Curtis (1969) 70 Cal.2d 347, 356 [74 Cal.Rptr. 713, 450 P.2d 33].
Merely Photographing or Recording Officers Not a Crime. Pen. Code, § 148(g).
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RELATED ISSUES
Service of Warrant
An officer is lawfully engaged in his or her duties if he or she is correctly serving
“a facially valid search or arrest warrant, regardless of the legal sufficiency of the
facts shown in support of the warrant.” (People v. Gonzalez (1990) 51 Cal.3d 1179,
1222 [275 Cal.Rptr. 729, 800 P.2d 1159].) On the other hand, “the proper service of
a warrant is a jury issue under the engaged-in-duty requirement.” (Id. at p. 1223
[emphasis in original].) If there is a factual dispute over the manner in which the
warrant was served, the court should instruct the jury on the requirements for legal
service of the warrant. (Ibid.)
Lawfulness of Officer’s Conduct Based on Objective Standard
The rule “requires that the officers lawful conduct be established as an objective
fact; it does not establish any requirement with respect to the defendant’s mens rea.”
(People v. Jenkins (2000) 22 Cal.4th 900, 1020 [95 Cal.Rptr.2d 377, 997 P.2d
1044].) The defendant’s belief about whether the officer was or was not acting
lawfully is irrelevant. (Id at p. 1021.)
Photographing or Recording Officers
Penal Code section 148(g) provides that merely photographing or recording a public
officer or peace officer under certain conditions is not a crime. The intended scope
of this new legislation is unclear. Until the legislature or courts of review provide
further guidance, the court will have to determine whether section 148(g) should
apply in an individual case.
SECONDARY SOURCES
1 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 11, Arrest,
§§ 11.01-11.06 (Matthew Bender).
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justifications, § 73.15[1], [2] (Matthew Bender).
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