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-
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/ [or] overcoming a person’s resistance/ [or]
preventing a person from escaping/ [or] defending himself or herself
from a person), that person may lawfully use reasonable force to defend
himself or herself.
A person 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 April 2010
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