If lawfulness of the arrest is an issue, give the appropriate paragraphs from
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.)
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].)
• 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
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against
Governmental Authority, § 97.
1 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 11, Arrest,
§§ 11.02, 11.06 (Matthew Bender).
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justiﬁcations, § 73.05 (Matthew Bender).
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.
CRIMES AGAINST GOVERNMENT CALCRIM No. 2762