CALCRIM No. 2762. Escape After Remand or Arrest (Pen. Code, § 836.6)

Judicial Council of California Criminal Jury Instructions (2020 edition)

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2762.Escape After Remand or Arrest (Pen. Code, § 836.6)
The defendant is charged [in Count ] with (escape/ [or] attempted
escape) following (a remand/an arrest) [in violation of Penal Code
section 836.6].
To prove that the defendant is guilty of this crime, the People must
prove that:
<Alternative 1A - remanded>
[1. The defendant was remanded, which means that a (magistrate/
judge) ordered (him/her) placed into the custody of a (sheriff[,]/
[or] marshal[,]/ [or other] (police agency/peace officer));]
<Alternative 1B - arrested>
[1. The defendant was lawfully arrested by a peace officer and the
defendant knew, or reasonably should have known, that (he/she)
had been arrested;]
AND
2. The defendant (escaped/ [or] attempted to escape) from the
custody of the (sheriff[,]/ marshal[,]/ [or other] (police agency/
peace officer)).
Escape means the unlawful departure from the physical limits of custody.
[A sworn member of <insert name of agency that employs
peace offıcer>, authorized by <insert appropriate section
from Pen. Code, § 830 et seq.> to <describe statutory
authority>, is a peace officer.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
If the defendant is charged with a felony for use of force or violence, give
CALCRIM No. 2763, Escape After Remand or Arrest: Force or Violence with this
instruction.
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].)
If lawfulness of the arrest is an issue, give the appropriate paragraphs from
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CALCRIM No. 2670, Lawful Performance: Peace Offıcer.
The jury must determine whether the person who arrested the defendant is a peace
officer. (People v. Brown (1988) 46 Cal.3d 432, 444-445 [250 Cal.Rptr. 604, 758
P.2d 1135].) The court may instruct the jury on the appropriate definition of “peace
officer” from the statute (e.g., “a Garden Grove Regular Police Officer and a Garden
Grove Reserve Police Officer are peace officers”). (Ibid.) However, the court may
not instruct the jury that the person was a peace officer as a matter of law (e.g.,
“Officer Reed was a peace officer”). (Ibid.)
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, § 836.6
• 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].
LESSER INCLUDED OFFENSES
Escape after remand or arrest is a misdemeanor unless the defendant used force or
violence and caused serious bodily injury to a peace officer. (Pen. Code, § 836.6(c).)
If the defendant is charged with the felony, then the misdemeanor is a lesser
included offense. (See People v. Gallegos (1974) 39 Cal.App.3d 512, 518-519 [114
Cal.Rptr. 166].) The court must provide the jury with a verdict form on which the
jury will indicate if the additional elements have or have not been proved. If the
jury finds that these elements have not been proved, then the offense should be set
at a misdemeanor.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Governmental Authority, § 102.
1 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 11, Arrest,
§§ 11.02, 11.06[3] (Matthew Bender).
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justifications, § 73.05 (Matthew Bender).
CRIMES AGAINST GOVERNMENT CALCRIM No. 2762
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