California Criminal Jury Instructions (CALCRIM) (2017)

507. Justifiable Homicide: By Public Officer

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507.Justifiable Homicide: By Public Officer
The defendant is not guilty of (murder/ [or] manslaughter/ attempted
murder/ [or] attempted voluntary manslaughter) if (he/she) (attempted
to kill/killed) someone while (acting as a public officer/obeying a public
officer’s command for aid and assistance). Such (a/an) [attempted]
killing is justified, and therefore not unlawful, if:
1. The defendant was (a public officer/obeying a public officer’s
command for aid and assistance);
2. The [attempted] killing was committed while (taking back into
custody a convicted felon [or felons] who had escaped from
prison or confinement[,]/ arresting a person [or persons] charged
with a felony who (was/were) resisting arrest or fleeing from
justice[,]/ overcoming actual resistance to some legal process[,]/
[or] while performing any [other] legal duty);
3. The [attempted] killing was necessary to accomplish (one of
those/that) lawful purpose[s];
AND
4. The defendant had probable cause to believe that (
<insert name of decedent> posed a threat of death or great bodily
injury, either to the defendant or to others/[or] that
<insert name of decedent> had committed ( <insert
forcible and atrocious crime>/<insert crime decedent
was suspected of committing, e.g., burglary>), and that crime
threatened the defendant or others with death or great bodily
injury)].<See Bench Note discussing this element.>
A person has probable cause to believe that someone poses a threat of
death or great bodily injury when facts known to the person would
persuade someone of reasonable caution that the other person is going
to cause death or great bodily injury to another.
[An officer or employee of <insert name of state or local
government agency that employs public offıcer> is a public officer.]
Great bodily injury means significant or substantial physical injury. It is
an injury that is greater than minor or moderate harm.
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).
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New January 2006; Revised April 2011, February 2012, August 2012
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].)
In element 2, select the phrase appropriate for the facts of the case.
It is unclear whether the officer must always have probable cause to believe that
the victim poses a threat of future harm or if it is sufficient if the officer has
probable cause to believe that the victim committed a forcible and atrocious crime.
In Tennessee v. Garner (1985) 471 U.S. 1, 3, 11 [105 S.Ct. 1694, 85 L.Ed.2d 1],
the Supreme Court held that, under the Fourth Amendment, deadly force may not
be used to prevent the escape of an apparently unarmed suspected felon unless it is
necessary to prevent the escape and the officer has probable cause to believe that
the suspect poses a significant threat of death or serious physical injury to the
officer or others. “Garner necessarily limits the scope of justification for homicide
under section 197, subdivision 4, and other similar statutes from the date of that
decision.” (People v. Martin (1985) 168 Cal.App.3d 1111, 1124 [214 Cal.Rptr.
873].) In a footnote, Garner,supra, 471 U.S. 1, 16, fn. 15, noted that California
law permits a killing in either situation, that is, when the suspect has committed an
atrocious crime or when the suspect poses a threat of future harm. (See also Long
Beach Police Offıcers Assn v. City of Long Beach (1976) 61 Cal.App.3d 364,
371–375 [132 Cal.Rptr. 348] [also stating the rule as “either” but quoting police
regulations, which require that the officer always believe there is a risk of future
harm.]) The committee has provided both options, but see People v. Ceballos
(1974) 12 Cal.3d 470, 478–479 [116 Cal.Rptr. 233, 526 P.2d 241]. The court
should review relevant case law before giving the bracketed language.
As with a peace officer, the jury must determine whether the defendant was a
public 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
“public officer” from the statute (e.g., “a Garden Grove Regular Police Officer and
a Garden Grove Reserve Police Officer are public officers”). (Ibid.) However, the
court may not instruct the jury that the defendant was a public officer as a matter
of law (e.g., “Officer Reed was a public officer”). (Ibid.)
Related Instructions
CALCRIM No. 508, Justifiable Homicide: Citizen Arrest (Non-Peace Offıcer).
CALCRIM No. 509, Justifiable Homicide: Non-Peace Offıcer Preserving the
Peace.
HOMICIDE CALCRIM No. 507
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0019
AUTHORITY
• Justifiable Homicide by Public Officer. Pen. Code, §§ 196, 199.
• 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].
• Public Officer. See Pen. Code, §§ 831(a) [custodial officer], 831.4 [sheriff’s or
police security officer], 831.5 [custodial officer], 831.6 [transportation officer],
3089 [county parole officer]; In re Frederick B. (1987) 192 Cal.App.3d 79,
89–90 [237 Cal.Rptr. 338], disapproved on other grounds in In re Randy G.
(2001) 26 Cal.4th 556, 567 fn. 2 [110 Cal.Rptr.2d 516, 28 P.3d 239] [“public
officers” is broader category than “peace officers”]; see also Pen. Code,
§ 836.5(a) [authority to arrest without warrant].
• Felony Must Pose Threat of Death or Great Bodily Injury. Kortum v. Alkire
(1977) 69 Cal.App.3d 325, 332–333 [138 Cal.Rptr. 26].
Secondary Sources
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Defenses, §§ 82, 85,
243.
3Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justifications, § 73.15[1], [2] (Matthew Bender).
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
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).
RELATED ISSUES
Killing Committed in Obedience to Judgment
Ahomicide is also justifiable when committed by a public officer “in obedience to
any judgment of a competent court.” (Pen. Code, § 196, subd. 1.) There are no
reported cases construing this subdivision. This provision appears to apply
exclusively to lawful executions.
CALCRIM No. 507 HOMICIDE
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