California Criminal Jury Instructions (CALCRIM) (2017)

2761. Escape by Force or Violence

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2761.Escape by Force or Violence (Pen. Code, § 4532(a)(2) &
(b)(2))
The defendant is charged [in Count ] with (escape/ [or]
attempted escape) committed by force or violence [in violation of Penal
Code section 4532].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant was ((arrested and booked for[,]/ [or] charged
with[,]/ [or] convicted of) a (misdemeanor/felony)/committed by
order of the juvenile court to an adult facility);
<Alternative 2A—confined in penal institution>
[2. The defendant was confined in (a/an) (county jail/city jail/prison/
industrial farm/industrial road camp);]
<Alternative 2B—engaged in county work>
[2. The defendant was working on (a county road/ [or other] county
work) as an inmate;]
<Alternative 2C—lawful custody>
[2. The defendant was in the lawful custody of (an officer/ [or] a
person);]
<Alternative 2D—work furlough>
[2. The defendant was confined in (a/an) (county jail/city jail/prison/
industrial farm/industrial road camp) but was authorized to be
away from the place of confinement in connection with a work
furlough program;]
<Alternative 2E—temporary release>
[2. The defendant was confined in (a/an) (county jail/city jail/prison/
industrial farm/industrial road camp) but was away from the
place of confinement in connection with an authorized temporary
release;]
<Alternative 2F—home detention>
[2. The defendant was a participant in a home detention program;]
<Alternative 2G—confined under Pen. Code, § 4011.9>
[2. The defendant was confined as an inmate in a hospital for
treatment even though no guard was present to detain the
defendant;]
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<Alternative 3A—confined in penal institution>
[3. The defendant (escaped/ [or] attempted to escape) from the (jail/
prison/farm/camp);]
<Alternative 3B—engaged in county work>
[3. The defendant (escaped/ [or] attempted to escape) from the
custody of the (officer/ [or] person in charge of (him/her)) while
engaged in or going to or returning from the county work site;]
<Alternative 3C—lawful custody>
[3. The defendant (escaped/ [or] attempted to escape) from the
custody of the (officer/ [or] person) who had lawful custody of
the defendant;]
<Alternative 3D—work furlough>
[3. The defendant (escaped/ [or] attempted to escape) from the (jail/
prison/farm/camp) by failing to return to the place of
confinement;]
<Alternative 3E—temporary release>
[3. The defendant (escaped/ [or] attempted to escape) from the (jail/
prison/farm/camp) by failing to return to the place of
confinement;]
<Alternative 3F—home detention>
[3. The defendant (escaped/ [or] attempted to escape) from the place
of confinement in the home detention program;]
<Alternative 3G—confined under Pen. Code, § 4011.9>
[3. The defendant (escaped/ [or] attempted to escape) from the place
of hospital confinement;]
AND
4. The defendant committed the (escape/ [or] attempted escape) by
force or violence.
[A person has been booked for a (misdemeanor/felony) if he or she has
been taken to a law enforcement office where an officer or employee has
recorded the arrest and taken the person’s fingerprints and
photograph.]
[A person has been charged with a (misdemeanor/felony) if a formal
complaint, information, or indictment has been filed in court alleging
that the person committed a crime.]
Escape means the unlawful departure of a prisoner from the physical
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limits of his or her custody. [It is not necessary for the prisoner to have
left the outer limits of the institution’s property. However, the prisoner
must breach a wall or fence marking the security perimeter of the
correctional facility. It is not sufficient for the prisoner to be merely
outside the particular area within the facility where he or she is
permitted to be.]
[A prisoner also escapes if he or she willfully fails to return to his or her
place of confinement within the period that he or she was authorized to
be away from that place of confinement. Someone commits an act
willfully when he or she does it willingly or on purpose.]
To commit an act by force or violence means to wrongfully use physical
force against the property or person of another. [To use force against a
person means to touch the other person in a harmful or offensive
manner. The slightest touching can be enough if it is done in a rude or
angry way. Making contact with another person, including through his
or her clothing, is enough. The touching does not have to cause pain or
injury of any kind.]
[The People must prove that the defendant personally used force or
violence or aided and abetted another in using force or violence. Mere
knowledge that someone else used force or violence is not enough.
Instruction[s] <insert instruction numbers; see Bench Notes>
explain[s] when a person aids and abets another.]
New January 2006; Revised August 2013
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the crime.
In elements 2 and 3, select the location where the defendant was allegedly confined
or the program that the defendant allegedly escaped from and use the appropriate
alternative paragraphs.
In the definition of escape, give the bracketed sentence if there is an issue as to
whether the defendant went far enough to constitute an escape. (See People v.
Lavaie (1999) 70 Cal.App.4th 456, 459–461 [82 Cal.Rptr.2d 719].)
Give the bracketed paragraph on willful failure to return if appropriate based on the
evidence.
In the definition of force or violence, use the bracketed sentences if the prosecution
alleges that the defendant used force against a person. (People v. Lozano (1987)
192 Cal.App.3d 618, 627 [237 Cal.Rptr. 612] [meaning of “force” in Pen. Code,
§ 4532 equivalent to simple battery].)
Give the bracketed paragraph that begins with “The People must prove that the
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defendant personally” if this is an issue in the case. (People v. Moretto (1994) 21
Cal.App.4th 1269, 1278 [26 Cal.Rptr.2d 719].) Give also CALCRIM No. 400,
Aiding and Abetting: General Principles, and CALCRIM No. 401, Aiding and
Abetting: Intended Crimes.
If the defendant is charged with attempt, give CALCRIM No. 460, Attempt Other
Than Attempted Murder. (People v. Gallegos (1974) 39 Cal.App.3d 512, 517 [114
Cal.Rptr. 166].)
Defenses—Instructional Duty
If there is sufficient evidence of necessity, the court has a sua sponte duty to give
CALCRIM No. 2764, Escape: Necessity Defense. (People v. Condley (1977) 69
Cal.App.3d 999, 1008–1013 [138 Cal.Rptr. 515]; People v. Lovercamp (1974) 43
Cal.App.3d 823, 831–832 [118 Cal.Rptr. 110].)
AUTHORITY
• Elements. Pen. Code, § 4532(a)(2) & (b)(2).
Specific Intent Not an Element of Completed Escape. People v. George (1980)
109 Cal.App.3d 814, 819 [167 Cal.Rptr. 603].
• Attempt to Escape—Must Instruct on Direct Act and Specific Intent. People v.
Gallegos (1974) 39 Cal.App.3d 512, 517 [114 Cal.Rptr. 166].
• Escape Defined. People v. Lavaie (1999) 70 Cal.App.4th 456, 459–461 [82
Cal.Rptr.2d 719].
• Force or Violence Defined. People v. Lozano (1987) 192 Cal.App.3d 618, 627
[237 Cal.Rptr. 612]; People v. Bravott (1986) 183 Cal.App.3d 93, 97 [227
Cal.Rptr. 810].
• Force Includes Damage to Property. People v. White (1988) 202 Cal.App.3d
862, 866 [249 Cal.Rptr. 165]; People v. Bravott (1986) 183 Cal.App.3d 93, 97
[227 Cal.Rptr. 810].
• Defendant Must Personally Use Force or Aid and Abet Another. People v.
Moretto (1994) 21 Cal.App.4th 1269, 1278 [26 Cal.Rptr.2d 719].
• Arrested Defendant Must Be Booked Before Statute Applies. People v. Diaz
(1978) 22 Cal.3d 712, 716–717 [150 Cal.Rptr. 471, 586 P.2d 952]; see also
People v. Trotter (1998) 65 Cal.App.4th 965, 967, 971 [76 Cal.Rptr.2d 898].
• Arrest of Probationer—Booking Not Required. People v. Cisneros (1986) 179
Cal.App.3d 117, 120–123 [224 Cal.Rptr. 452].
• Must Be Confined in Adult Penal Institution. People v. Rackley (1995) 33
Cal.App.4th 1659, 1668 [40 Cal.Rptr.2d 49].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Governmental Authority, §§ 86–102.
1 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 11, Arrest,
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§ 11.06[3] (Matthew Bender).
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justifications, § 73.05 (Matthew Bender).
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 94,
Prisoners’ Rights, § 94.20[2] (Matthew Bender).
LESSER INCLUDED OFFENSES
Escape carries a more severe penalty if done with force or violence. (Pen. Code,
§4532(a)(2) & (b)(2).) If the defendant is charged with using force or violence,
then the escape without force or violence is a lesser included offense. (People v.
Gallegos (1974) 39 Cal.App.3d 512, 518–519 [114 Cal.Rptr. 166].) Note that the
court must instruct on all the elements of escape with force or violence and must
then give a separate instruction on the lesser offense, stating all of the elements
except force or violence. (People v. Lozano (1987) 192 Cal.App.3d 618, 633 [237
Cal.Rptr. 612].) The court may not give the jury a verdict form asking specifically
if the element of force or violence has been proved. (Ibid.)
RELATED ISSUES
See Related Issues section in CALCRIM No. 2760, Escape.
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