2671. Lawful Performance: Custodial 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 custodial 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 custodial officer is not lawfully performing his or her duties if he or she is using unreasonable or excessive force in his or her duties.
Special rules control the use of force.
A custodial officer may use reasonable force in his or her duties to restrain a person, to overcome resistance, to prevent escape, or in self-defense.
If a person knows, or reasonably should know, that a custodial officer is restraining him or her, that person must not use force or any weapon to resist an officer's use of reasonable force.
If a custodial officer uses unreasonable or excessive force while restraining a person, that person may lawfully use reasonable force to defend himself or herself.
A person being restrained 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.
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].)
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].
Reasonable Force. Pen. Code, §§ 692, 693.
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].
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73, Defenses and Justifications, §§ 73.11-73.14 (Matthew Bender).
Lawfulness of Officer's Conduct Based on Objective Standard
The rule "requires that the officer's 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 [74 Cal.Rptr. 713, 450 P.2d 33].) The defendant's belief about whether the officer was or was not acting lawfully is irrelevant. (Id at p. 1021.)
(New January 2006)