offense in which lawful performance is an element, if the defendant used
reasonable force in response to excessive force. (People v. Olguin (1981) 119
Cal.App.3d 39, 46–47 [173 Cal.Rptr. 663].) On request, the court must instruct that
the prosecution has the burden of proving the lawfulness of the arrest beyond a
reasonable doubt. (People v. Castain (1981) 122 Cal.App.3d 138, 145 [175
Cal.Rptr. 651].) If lawful performance is an issue, give the bracketed paragraph on
lawful performance and the appropriate portions of CALCRIM No. 2670, Lawful
Performance: Peace Offıcer.
The jury must determine whether the alleged victim is 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 on 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 alleged victim was a peace officer as a matter of law (e.g., “Officer
Reed was a peace officer”). (Ibid.) If the alleged victim is a police officer, give the
bracketed sentence that begins with “A person employed as a police officer.” If the
alleged victim is another type of peace officer, give the bracketed sentence that
begins with “A person employed by.”
“Peace officer,” as used in this statute, means “as deﬁned in subdivision (a) of
Section 830.1, subdivision (a), (b), or (c) of Section 830.2, subdivision (a) of
Section 830.33, or Section 830.5.” (Pen. Code, § 190(b) & (c).)
The court may give the bracketed sentence that begins, “The duties of a
<insert title . . . .> include,” on request. The court may insert a
description of the officer’s duties such as “the correct service of a facially valid
search warrant.” (People v. Gonzalez (1990) 51 Cal.3d 1179, 1222 [275 Cal.Rptr.
729, 800 P.2d 1159].)
• Second Degree Murder of a Peace Officer. Pen. Code, § 190(b) & (c).
• Personally Used Deadly or Dangerous Weapon. Pen. Code, § 12022.
• Personally Used Firearm. Pen. Code, § 12022.5.
• Personal Use. Pen. Code, § 1203.06(b)(2).
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against the
Person, § 164.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justiﬁcations, § 73.15 (Matthew Bender).
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, § 87.13 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, § 142.01[c] (Matthew Bender).
HOMICIDE CALCRIM No. 524