California Criminal Jury Instructions (CALCRIM) (2017)

508. Justifiable Homicide: Citizen Arrest (Non-Peace Officer)

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508.Justifiable Homicide: Citizen Arrest (Non-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 trying to arrest him or her for a
violent felony. Such (a/an) [attempted] killing is justified, and therefore
not unlawful, if:
1. The defendant committed the [attempted] killing while lawfully
trying to arrest or detain <insert name of decedent>
for committing (the crime of <insert forcible and
atrocious crime, i.e., felony that threatened death or great bodily
injury>/ <insert crime decedent was suspected of
committing, e.g., burglary>, and that crime threatened the
defendant or others with death or great bodily injury);
2. <insert name of decedent> actually committed (the
crime of <insert forcible and atrocious crime, i.e.,
felony that threatened death or great bodily injury>/
<insert crime decedent was suspected of committing, e.g.,
burglary>, and that crime threatened the defendant or others
with death or great bodily injury);
3. The defendant had reason to believe that <insert
name of decedent> had committed (the crime of
<insert forcible and atrocious crime, i.e., felony that threatened
death or great bodily injury>/<insert crime decedent
was suspected of committing, e.g., burglary>, and that crime
threatened the defendant or others with death or great bodily
injury);
[4. The defendant had reason to believe that <insert
name of decedent> posed a threat of death or great bodily injury,
either to the defendant or to others];
AND
5. The [attempted] killing was necessary to prevent ’s
<insert name of decedent> escape.
A person has reason to believe that someone [poses a threat of death or
great bodily injury or] committed (the crime of <insert
forcible and atrocious crime, i.e., felony that threatened death or great
bodily injury> /<insert crime decedent was suspected of
committing, e.g., burglary>, and that crime threatened the defendant or
others with death or great bodily injury) when facts known to the
person would persuade someone of reasonable caution to have (that/
those) belief[s].
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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).
New January 2006; Revised April 2011, February 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].)
It is unclear whether the defendant must always have probable cause to believe that
the victim poses a threat of future harm or if it is sufficient if the defendant knows
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 by a law
enforcement officer 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 either 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. 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 bracketed element 4.
Related Instructions
CALCRIM No. 507, Justifiable Homicide: By Public Offıcer.
CALCRIM No. 509, Justifiable Homicide: Non-Peace Offıcer Preserving the
Peace.
CALCRIM No. 508 HOMICIDE
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AUTHORITY
• Justifiable Homicide to Preserve the Peace. Pen. Code, §§ 197, subd. 4, 199.
• Lawful Resistance to Commission of Offense. Pen. Code, §§ 692–694.
• Private Persons, Authority to Arrest. Pen. Code, § 837.
• Burden of Proof. Pen. Code, § 189.5; People v. Frye (1992) 7 Cal.App.4th
1148, 1154–1155 [10 Cal.Rptr.2d 217].
• Felony Must Threaten Death or Great Bodily Injury. People v. Piorkowski
(1974) 41 Cal.App.3d 324, 328–329 [115 Cal.Rptr. 830].
Secondary Sources
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Defenses, §§ 80–86
3Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justifications, § 73.15[1], [3] (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
Felony Must Actually Be Committed
Aprivate citizen may use deadly force to apprehend a fleeing felon only if the
suspect in fact committed the felony and the person using deadly force had
reasonable cause to believe so. (People v. Lillard (1912) 18 Cal.App. 343, 345 [123
P. 221].)
Felony Committed Must Threaten Death or Great Bodily Injury
Deadly force is permissible to apprehend a felon if “the felony committed is one
which threatens death or great bodily injury . . . .” (People v. Piorkowski (1974)
41 Cal.App.3d 324, 328–329 [115 Cal.Rptr. 830]).
HOMICIDE CALCRIM No. 508
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