CALCRIM No. 507. Justifiable Homicide: By Peace Officer

Judicial Council of California Criminal Jury Instructions (2023 edition)

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507.Justifiable Homicide: By Peace Officer

The defendant is not guilty of (murder/ [or] manslaughter/attempted

murder/ [or] attempted voluntary manslaughter) if (he/she)

(killed/attempted to kill) someone while (acting as a peace officer/obeying

a peace officer’s command for aid and assistance). (A/An) [attempted]

killing is justified, and therefore not unlawful, if:

1. The defendant was (a peace officer/obeying a peace officer’s

command for aid and assistance);

AND

2. The [attempted] killing was committed while the defendant

either:

A. Reasonably believed, based on the totality of the

circumstances, that the force was necessary to defend against

an imminent threat of death or serious bodily injury to the

defendant or another person;

B. Reasonably believed, based on the totality of the

circumstances, that:

B1. <insert name of fleeing felon>was fleeing;

B2. The force was necessary to arrest or detain

<insert name of fleeing felon>for the crime of

<insert name of felony>;

B3. The commission of the crime of <insert name

of felony>created a risk of or resulted in death or serious

bodily injury to another person;

AND

B4. <insert name of fleeing felon> would cause

death or serious bodily injury to another person unless

immediately arrested or detained.

[A serious 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).]

[A threat of death or serious bodily injury is imminent when, based on

the totality of the circumstances, a reasonable officer in the same

situation would believe that a person has the present ability, opportunity,

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and apparent intent to immediately cause death or serious bodily injury

to the peace officer or to another person. An imminent harm is not

merely a fear of future harm, no matter how great the fear and no

matter how great the likelihood of the harm, but is one that, from

appearances, must be instantly confronted and addressed.]

[Totality of the circumstances means all facts known to the defendant at

the time, including the conduct of the defendant and <insert

name of decedent>leading up to the use of deadly force.]

[Deadly force means any use of force that creates a substantial risk of

causing death or serious bodily injury. Deadly force includes, but is not

limited to, the discharge of a firearm.]

[A peace officer who makes or attempts to make an arrest need not

retreat or stop because the person being arrested is resisting or

threatening to resist. A peace officer does not lose (his/her) right to self-

defense by using objectively reasonable force to arrest or to prevent

escape or to overcome resistance.]

[A person who is employed as a police officer by <insert

name of agency that employs police offıcer> is a peace officer.]

[A person employed by <insert name of agency that employs

peace offıcer, e.g., “the Department of Fish and Wildlife”> is a peace officer

if <insert description of facts necessary to make employee a

peace offıcer, e.g, “designated by the director of the agency as a peace

offıcer”>.]

The People have the burden of proving beyond a reasonable doubt that

the [attempted] killing was not justified. If the People have not met this

burden, you must find the defendant not guilty of [attempted] (murder/

[or] manslaughter).

New January 2006; Revised April 2011, February 2012, August 2012, April 2020,

September 2022

BENCH NOTES

Instructional Duty

The court has a sua sponte duty to instruct on justifiable homicide when “it appears

that the defendant is relying on such a defense, or if there is substantial evidence

supportive of such a defense and the defense is not inconsistent with the defendant’s

theory of the case.” (See People v. Breverman (1998) 19 Cal.4th 142, 156 [77

Cal.Rptr.2d 870, 960 P.2d 1094] [addressing sua sponte duty to instruct on self-

defense].)

Penal Code sections 196 and 835a, as amended by Statutes 2019, ch.170 (A.B. 392),

became effective on January 1, 2020. If the defendant’s act occurred before this

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date, the court should give the prior version of this instruction.

The jury must determine whether the defendant was 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 in 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 defendant was a peace officer as a matter of law (e.g., “Officer Reed

was a peace officer”). (Ibid.) If the defendant is a police officer, give the bracketed

sentence that begins with “A person employed as a police officer.” If the defendant

is another type of peace officer, give the bracketed sentence that begins with “A

person employed by.”

Related Instructions

CALCRIM No. 508, Justifiable Homicide: Citizen Arrest (Non-Peace Offıcer).

CALCRIM No. 509, Justifiable Homicide: Non-Peace Offıcer Preserving the Peace.

AUTHORITY

• Justifiable Homicide by Peace Officer. Pen. Code, §§ 196, 199, 835a.

• Burden of Proof. Pen. Code, § 189.5; People v. Frye (1992) 7 Cal.App.4th 1148,

1154-1155 [10 Cal.Rptr.2d 217]; People v. Banks (1976) 67 Cal.App.3d 379,

383-384 [137 Cal.Rptr. 652].

• Peace Officer Defined. Pen. Code, § 830 et seq.

• 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].

• Deadly Force Defined. Pen. Code, § 835a(e).

COMMENTARY

Graham Factors

In determining reasonableness, the inquiry is whether the officer’s actions are

objectively reasonable from the perspective of a reasonable officer on the scene.

(Graham v. Connor (1989) 490 U.S. 386, 396 [109 S.Ct. 1865, 104 L.Ed.2d 443].)

Factors relevant to the totality of the circumstances may include those listed in

Graham, but those factors are not exclusive. (See Glenn v. Washington County (9th

Cir. 2011) 673 F.3d 864, 872.) The Graham factors may not all apply in a given

case. (See People v. Perry (2019) 36 Cal.App.5th 444, 473, fn. 18 [248 Cal.Rptr.3d

522].) Conduct and tactical decisions preceding an officer’s use of deadly force are

relevant considerations. (Hayes v. County of San Diego (2013) 57 Cal.4th 622, 639

[160 Cal.Rptr.3d 684, 305 P.3d 252] [in context of negligence liability].)

SECONDARY SOURCES

1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Defenses, § 95.

3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,

Defenses and Justifications, § 73.15[1] (Matthew Bender).

4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,

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Submission to Jury and Verdict, § 85.04[1][c] (Matthew Bender).

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes

Against the Person, § 142.01[1][b] (Matthew Bender).

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Page last reviewed May 2023