CALCRIM No. 508. Justifiable Homicide: Citizen Arrest (Non-Peace Officer)
Judicial Council of California Criminal Jury Instructions (2024 edition)
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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].
Great bodily injury means significant or substantial physical injury. It is
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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, September 2020
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.
The second sentence of the great bodily injury definition could result in error if the
prosecution improperly argues great bodily injury may be shown by greater than
minor injury alone. (Compare People v. Medellin (2020) 45 Cal.App.5th 519,
533-535 [258 Cal.Rptr.3d 867] [the definition was reasonably susceptible to
prosecutor’s erroneous argument that the injury need only be greater than minor]
HOMICIDE CALCRIM No. 508
237
with People v. Quinonez (2020) 46 Cal.App.5th 457, 466 [260 Cal.Rptr.3d 86]
[upholding instructions containing great bodily injury definition as written].)
Related Instructions
CALCRIM No. 507, Justifiable Homicide: By Public Offıcer.
CALCRIM No. 509, Justifiable Homicide: Non-Peace Offıcer Preserving the Peace.
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].
RELATED ISSUES
Felony Must Actually Be Committed
A private 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]).
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Defenses, §§ 90-96.
3 Millman, 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).
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