CALCRIM No. 507. Justifiable Homicide: By Peace Officer

Judicial Council of California Criminal Jury Instructions (2020 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;
OR
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.]
[In considering the totality of circumstances, you may consider whether:
[• Prior to the use of force, the defendant [identified] [or]
[attempted to identify] him or herself as a peace officer and
[warned] [or] [attempted to warn] that deadly force may be
used(;/.)]
[• Prior to the use of force, the defendant had objectively reasonable
grounds to believe the person was aware that the defendant was a
peace officer and that deadly force may be used(;/.)]
[• The defendant was able, under the circumstances, [[to [identify]
[or] [attempt to identify]] him or herself as a peace officer] [and]
[to [warn] [or] [attempt to warn] that deadly force may be used].]
[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
HOMICIDE CALCRIM No. 507
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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
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].
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,
Submission to Jury and Verdict, § 85.04[1][c] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
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Against the Person, § 142.01[1][b] (Matthew Bender).
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