CALCRIM No. 524. Second Degree Murder: Peace Officer (Pen. Code, § 190(b), (c))

Judicial Council of California Criminal Jury Instructions (2020 edition)

Download PDF
524.Second Degree Murder: Peace Officer (Pen. Code, § 190(b),
(c))
If you find the defendant guilty of second degree murder [as charged in
Count ], you must then decide whether the People have proved
the additional allegation that (he/she) murdered a peace officer.
To prove this allegation the People must prove that:
1. <insert offıcer’s name, excluding title> was a peace
officer lawfully performing (his/her) duties as a peace officer;
[AND]
2. When the defendant killed <insert offıcer’s name,
excluding title>, the defendant knew, or reasonably should have
known, that <insert offıcer’s name, excluding title>
was a peace officer who was performing (his/her) duties(;/.)
<Give element 3 when defendant charged with Pen. Code, § 190(c)>
[AND
3. The defendant (intended to kill the peace officer/ [or] intended to
inflict great bodily injury on the peace officer/ [or] personally
used a (deadly or dangerous weapon/ [or] firearm) in the
commission of the offense).]
[Great bodily injury means significant or substantial physical injury. It is
an injury that is greater than minor or moderate harm.]
[A deadly or dangerous weapon is any object, instrument, or weapon
[that is inherently deadly or dangerous or one] that is used in such a
way that it is capable of causing and likely to cause death or great
bodily injury.]
[An object is inherently deadly if it is deadly or dangerous in the
ordinary use for which it was designed.]
[A firearm is any device designed to be used as a weapon, from which a
projectile is discharged or expelled through a barrel by the force of an
explosion or other form of combustion.]
[Someone personally uses a (deadly weapon/ [or] firearm) if he or she
intentionally does any of the following:
1. Displays the weapon in a menacing manner;
2. Hits someone with the weapon;
OR
3. Fires the weapon.]
254
[The People allege that the defendant <insert all of the
factors from element 3 when multiple factors are alleged>. You may not
find the defendant guilty unless you all agree that the People have
proved at least one of these alleged facts and you all agree on which fact
or facts were proved. You do not need to specify the fact or facts in your
verdict.]
[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 duties of (a/an) <insert title of peace offıcer> include
<insert job duties>.]
<When lawful performance is an issue, give the following paragraph and
Instruction 2670, Lawful Performance: Peace Offıcer.>
[A peace officer is not lawfully performing his or her duties if he or she
is (unlawfully arresting or detaining someone/ [or] using unreasonable or
excessive force in his or her duties). Instruction 2670 explains (when an
arrest or detention is unlawful/ [and] when force is unreasonable or
excessive).]
New January 2006; Revised August 2009, February 2013, September 2019
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
sentencing enhancement. (See People v. Marshall (2000) 83 Cal.App.4th 186,
193-195 [99 Cal.Rptr.2d 441]; Apprendi v. New Jersey (2000) 530 U.S. 466,
475-476, 490 [120 S.Ct. 2348, 147 L.Ed.2d 435].)
If the defendant is charged under Penal Code section 190(b), give only elements 1
and 2. If the defendant is charged under Penal Code section 190(c), give all three
elements, specifying the appropriate factors in element 3, and give the appropriate
definitions, which follow in brackets. Give the bracketed unanimity instruction if the
prosecution alleges more than one factor in element 3.
In order to be “engaged in the performance of his or her duties,” a peace officer
must be acting lawfully. (People v. Gonzalez (1990) 51 Cal.3d 1179, 1217 [275
Cal.Rptr. 729, 800 P.2d 1159].) “[D]isputed facts bearing on the issue of legal cause
must be submitted to the jury considering an engaged-in-duty element.” (Ibid.) If
excessive force is an issue, the court has a sua sponte duty to instruct the jury that
HOMICIDE CALCRIM No. 524
255
the defendant is not guilty of the offense charged, or any lesser included 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].)
Give the bracketed phrase “that is inherently deadly or one” and give the bracketed
definition of inherently deadly only if the object is a deadly weapon as a matter of
law. (People v. Stutelberg (2018) 29 Cal.App.5th 314, 317-318 [240 Cal.Rptr.3d
156].)
AUTHORITY
• 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).
• Inherently Deadly Defined. People v. Perez (2018) 4 Cal.5th 1055, 1065 [232
Cal.Rptr.3d 51, 416 P.3d 42]; People v. Aguilar (1997) 16 Cal.4th 1023,
1028-1029 [68 Cal.Rptr.2d 655, 945 P.2d 1204].
CALCRIM No. 524 HOMICIDE
256
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, § 186.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justifications, § 73.15[2] (Matthew Bender).
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, § 87.13[7] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.01[4][c] (Matthew Bender).
HOMICIDE CALCRIM No. 524
257

© Judicial Council of California.