California Criminal Jury Instructions (CALCRIM) (2017)

724. Special Circumstances: Murder of Peace Officer, Federal Officer, or Firefighter, Pen. Code, § 190.2(a)(7), (8) & (9)

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724.Special Circumstances: Murder of Peace Officer, Federal
Officer, or Firefighter (Pen. Code, § 190.2(a)(7), (8) & (9))
The defendant is charged with the special circumstance of murder of a
(peace officer/federal law enforcement officer/firefighter) [in violation of
Penal Code section 190.2(a)].
To prove that this special circumstance is true, the People must prove
that:
1. <insert offıcer’s name, excluding title> was a (peace
officer/federal law enforcement officer/firefighter) [lawfully
performing (his/her) duties as a (peace officer/federal law
enforcement officer/firefighter)];
2. The defendant intended to kill <insert offıcer’s
name, excluding title>;
AND
<Alternative 3A—killing during performance of duties>
[3. When <insert offıcer’s name, excluding title> was
killed, the defendant knew, or reasonably should have known,
that <insert offıcer’s name, excluding title> was a
(peace officer/federal law enforcement officer/firefighter) who was
performing (his/her) duties.]
<Alternative 3B—killing in retaliation>
[3. <insert offıcer’s name, excluding title> was killed in
retaliation for the performance of (his/her) official 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> 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.]
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<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
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on the elements of the special
circumstance. (See People v. Williams (1997) 16 Cal.4th 635, 689 [66 Cal.Rptr.2d
573, 941 P.2d 752].)
“Lawful performance” by the officer is not an element when the prosecution’s
theory is that the officer was killed in retaliation for performing his or her duties
but is an element when the theory is that the officer was killed while engaging in
his or her duties. If the prosecution’s theory is that the killing occurred while the
decedent was carrying out official duties, give the bracketed phrase “lawfully
performing (his/her) duties” in element 1 and give alternative 3A. If the
prosecution’s theory is that the killing was in retaliation for the officer’s
performance of his or her duties, do not give the bracketed language in element 1
and give alternative 3B. The retaliation theory does not apply to the killing of a
firefighter. (Pen. Code, § 190.2(a)(9).)
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 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
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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 190.2(a)(7) 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 190.2(a)(9) defines “firefighter” “as defined in Section 245.1.”
If the decedent was a federal law enforcement officer or agent, then the term
“federal law enforcement officer” may need to be defined for the jury depending on
the decedent’s position.
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].)
AUTHORITY
• Special Circumstance: Peace Officer. Pen. Code, § 190.2(a)(7).
Special Circumstance: Federal Officer. Pen. Code, § 190.2(a)(8).
• Special Circumstance: Firefighter. Pen. Code, § 190.2(a)(9).
• Engaged in Performance of Duties. People v. Gonzalez (1990) 51 Cal.3d
1179, 1217 [275 Cal.Rptr. 729, 800 P.2d 1159].
Secondary Sources
3 Witkin & Epstein, California Criminal Law (3d ed. 2000) Punishment, §§ 455,
456.
4Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, §§ 87.13[7], [8], [9], 87.14 (Matthew Bender).
RELATED ISSUES
Reasonable Knowledge Standard
Application of the special circumstance to a defendant who “reasonably should
have known” that the decedent was a peace officer is constitutional. (People v.
Rodriguez (1986) 42 Cal.3d 730, 781–782 [230 Cal.Rptr. 667, 726 P.2d 113].)
[I]n appropriate cases it would be proper for the court to instruct that a
defendant may not be found guilty of the special circumstance at issue here
(even if he reasonably should have known his victim was a peace officer
engaged in the performance of his duty) if, by reason of non-self-induced
“diminished capacity,” defendant was unable actually to know the status of his
victim.
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(Id. at p. 781, fn. 18 [emphasis in original].)
Such an instruction is not warranted in a case where the defendant is voluntarily
intoxicated or has otherwise “self-induced diminished capacity.” (People v. Brown
(1988) 46 Cal.3d 432, 445, fn. 7 [250 Cal.Rptr. 604, 758 P.2d 1135].)
See the Related Issues section to CALCRIM No. 2670, Lawful Performance: Peace
Offıcer.
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