New January 2006; Revised April 2011, February 2012, August 2012
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
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.)
CALCRIM No. 508, Justiﬁable Homicide: Citizen Arrest (Non-Peace Offıcer).
CALCRIM No. 509, Justiﬁable Homicide: Non-Peace Offıcer Preserving the
HOMICIDE CALCRIM No. 507