California Criminal Jury Instructions (CALCRIM) (2017)

2763. Escape After Remand or Arrest: Force or Violence

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2763.Escape After Remand or Arrest: Force or Violence (Pen.
Code, § 836.6)
If you find the defendant guilty of (escape/ [or] attempted escape)
following (remand/arrest), you must then decide whether the People
have proved the additional allegation that the defendant used force or
violence and caused serious bodily injury to a peace officer.
To prove this allegation, the People must prove that:
1. The defendant committed the (escape/ [or] attempted escape) by
force or violence;
AND
2. The defendant caused serious bodily injury to a peace officer.
As used here, using force or violence means the wrongful application of
physical force against the person of another. To use force against a
person means to touch the other person in a harmful or offensive
manner.
[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.]
Aserious bodily injury means a serious impairment of physical
condition. Such an injury may include[, but is not limited to]: (loss of
consciousness/ concussion/ bone fracture/ protracted loss or impairment
of function of any bodily member or organ/ a wound requiring extensive
suturing/ [and] serious disfigurement).
[An act causes bodily injury to another person if the injury is the direct,
natural, and probable consequence of the act and the injury would not
have happened without the act. A natural and probable consequence is
one that a reasonable person would know is likely to happen if nothing
unusual intervenes. In deciding whether a consequence is natural and
probable, consider all of the circumstances established by the evidence.]
[There may be more than one cause of injury. An act causes bodily
injury to another person only if it is a substantial factor in causing the
injury. A substantial factor is more than a trivial or remote factor.
However, it does not need to be the only factor that causes the injury.]
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.
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The People have the burden of proving beyond a reasonable doubt that
the defendant used force or violence and caused serious bodily injury to
a peace officer. If the People have not met this burden, you must find
that this allegation has not been proved.
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the sentencing factor.
This instruction must be given with CALCRIM No. 2762, Escape After Remand or
Arrest. The court must provide the jury with a verdict form on which the jury will
indicate if the prosecution has or has not been proved the additional allegation of
the use of force.
If causation is at issue, the court has a sua sponte duty to instruct on proximate
cause. (People v. Bernhardt (1963) 222 Cal.App.2d 567, 590–591 [35 Cal.Rptr.
401].) If the evidence indicates that there was only one cause of injury, the court
should give the “direct, natural, and probable” language in the first bracketed
paragraph on causation. If there is evidence of multiple causes of injury, the court
should also give the “substantial factor” instruction in the second bracketed
paragraph on causation. (See People v. Autry (1995) 37 Cal.App.4th 351, 363 [43
Cal.Rptr.2d 135]; People v. Pike (1988) 197 Cal.App.3d 732, 746–747 [243
Cal.Rptr. 54].)
Give the bracketed paragraph that begins with “The People must prove that the
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.
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.)
AUTHORITY
• Enhancement. Pen. Code, § 836.6.
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].
• Defendant Must Personally Use Force or Aid and Abet Another. People v.
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Moretto (1994) 21 Cal.App.4th 1269, 1278 [26 Cal.Rptr.2d 719].
• Serious Bodily Injury Defined. Pen. Code, § 243(f)(4); People v. Taylor (2004)
118 Cal.App.4th 11, 25, fn. 4 [12 Cal.Rptr.3d 693].
Secondary Sources
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[3] (Matthew Bender).
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justifications, § 73.05 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, § 140.04 (Matthew Bender).
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