California Criminal Jury Instructions (CALCRIM) (2017)

602. Attempted Murder: Peace Officer or Firefighter

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602.Attempted Murder: Peace Officer, Firefighter, Custodial
Officer, or Custody Assistant (Pen. Code, §§ 21a, 664(e))
If you find the defendant guilty of attempted murder [under Count
], you must then decide whether the People have proved the
additional allegation that (he/she) attempted to murder a (peace officer/
firefighter/custodial officer).
To prove this allegation, the People must prove that:
1. <insert offıcer’s name, excluding title> was a (peace
officer/firefighter/custodial officer/custody assistant/nonsworn
uniformed employee of a sheriff’s department) lawfully
performing (his/her) duties as a (peace officer/firefighter/custodial
officer/custody assistant/nonsworn uniformed employee of a
sheriff’s department);
AND
2. When the defendant attempted the murder, the defendant knew,
or reasonably should have known, that <insert
offıcer’s name, excluding title> was a (peace officer/firefighter/
custodial officer/custody assistant/nonsworn uniformed employee
of a sheriff’s department) who was performing (his/her) duties.
[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, firefighter,
custodial offıcer, custody assistant or nonsworn uniformed employee of a
sheriff’s department> include <insert job duties>. ]
[A firefighter includes anyone who is an officer, employee, or member of
a (governmentally operated (fire department/fire protection or
firefighting agency) in this state/federal fire department/federal fire
protection or firefighting agency), whether or not he or she is paid for
his or her services.]
[A custodial officer is someone who works for a law enforcement agency
of a city or county, is responsible for maintaining custody of prisoners,
and helps operate a local detention facility. [[A/An] (county jail/city jail/
<insert other detention facility>) is a local detention
facility.] [A custodial officer is not a peace officer.]]
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<If the custodial offıcer is employed by a law enforcement agency of San
Diego County, Fresno County, Kern County, Stanislaus County, Riverside
County, Santa Clara County, or a county having a population of 425,000 or
less, give the following sentence in place of the definition above.>
[A person designated as (a/an) (correctional officer/jailer/
<insert similar title>)employed by the county of <insert
name of county designated by Penal Code section 831.5(a)> is a custodial
officer.]
[A custody assistant is a person who is a full-time, non-peace officer
employee of the county sheriff’s department who assists peace officer
personnel in maintaining order and security in a custody detention,
court detention, or station jail facility of the sheriff’s department.]
[For the purpose of this instruction, a nonsworn uniformed employee of
a sheriff’s department is someone whose job includes the care or control
of inmates in a detention facility. [A prison, jail, camp, or other
correctional facility used for the confinement of adults or both adults
and minors/ <insert other applicable definition from Penal
Code section 289.6(c)> is a detention facility for the purpose of this
definition.]]
<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).]
<When lawful performance is an issue, give the following paragraph and
Instruction 2671, Lawful Performance: Custodial Offıcer.>
[A custodial officer is not lawfully performing his or her duties if he or
she is using unreasonable or excessive force in his or her duties.
Instruction 2671 explains when force is unreasonable or excessive.]
New January 2006; Revised August 2006, June 2007
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the sentencing enhancement. (Apprendi v. New Jersey (2000) 530 U.S. 466,
475–476, 490 [120 S.Ct. 2348, 147 L.Ed.2d 435].)
In order to be “engaged in the performance of his or her duties,” a peace officer or
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custodial 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 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 of a peace officer is an issue, give the
bracketed paragraph on lawful performance of a peace officer and the appropriate
portions of CALCRIM No. 2670, Lawful Performance: Peace Offıcer. If lawful
performance of a custodial officer is an issue, give the bracketed paragraph on
lawful performance of a custodial officer and the appropriate portions of
CALCRIM No. 2671, Lawful Performance: Custodial 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.”
Penal Code section 664(e) refers to the definition of peace officer used in Penal
Code section 190.2(a)(7), which defines “peace officer” as “defined in Section
830.1, 830.2, 830.3, 830.31, 830.32, 830.33, 830.34, 830.35, 830.36, 830.37, 830.4,
830.5, 830.6, 830.10, 830.11, or 830.12.”
Penal Code section 664(e) refers to the definition of firefighter used in Penal Code
section 190.2(a)(9), which defines “firefighter” “as defined in Section 245.1.”
The court may give the bracketed sentence that begins, “The duties of (a/an)
<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].)
In the bracketed definition of “local detention facility,” do not insert the name of a
specific detention facility. Instead, insert a description of the type of detention
facility at issue in the case. (See People v. Flood (1998) 18 Cal.4th 470, 482 [76
Cal.Rptr.2d 180, 957 P.2d 869] [jury must determine if alleged victim is a peace
officer]; see Penal Code section 6031.4 [defining local detention facility].)
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AUTHORITY
• Attempted Murder on a Peace Officer or Firefighter. Pen. Code, § 664(e).
• Peace Officer Defined. Pen. Code, § 830 et seq.
• Firefighter Defined. Pen. Code, § 245.1.
• Custody Assistant Defined. Pen. Code, § 831.7.
• Nonsworn Uniformed Employee of Sheriff’s Department Defined. Pen. Code,
§ 664(e).
• Custodial Officer as Referenced in Pen. Code, § 664, Defined. Pen. Code,
§§ 831(a) and 831.5(a).
Secondary Sources
3 Witkin & Epstein, California Criminal Law (3d ed. 2000) Punishment, § 241.
6Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 141,
Conspiracy, Solicitation, and Attempt, §§ 141.20[2], 141.21; Ch. 142, Crimes
Against the Person, § 142.01[3][e] (Matthew Bender).
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