CALCRIM No. 724. Special Circumstances: Murder of Peace Officer, Federal Officer, or Firefighter (Pen. Code, § 190.2(a)(7), (8) & (9))

Judicial Council of California Criminal Jury Instructions (2022 edition)

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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 officers 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
Police Officer are peace officers”). (Ibid.) However, the court may not instruct the
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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 officers 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].
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.
(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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SECONDARY SOURCES
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment,
§§ 538-539.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, §§ 87.13[7], [8], [9], 87.14 (Matthew Bender).
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