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 (2020 edition)
Download PDF724.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 offıcerâs 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 offıcerâs name,
excluding title>;
AND
<Alternative 3A - killing during performance of duties>
[3. When <insert offıcerâs name, excluding title> was
killed, the defendant knew, or reasonably should have known,
that <insert offıcerâs 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 offıcerâs 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., âthe Department of Fish and Wildlifeâ> is a peace officer
if <insert description of facts necessary to make employee a
peace offıcer, e.g., âdesignated by the director of the agency as a peace
offıcerâ>.]
[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.]
476
<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].)
âLawful performanceâ by the officer is not an element when the prosecutionâs
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 prosecutionâs theory is that the killing occurred while the decedent
was carrying out official duties, give the bracketed phrase âlawfully performing (his/
her) dutiesâ in element 1 and give alternative 3A. If the prosecutionâs theory is that
the killing was in retaliation for the officerâs 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 âengaged in the performance of his or her duties,â a peace officer
must be acting lawfully. (People v. Gonzalez (1990) 51 Cal.3d 1179, 1217 [275
Cal.Rptr. 729, 800 P.2d 1159].) â[D]isputed facts bearing on the issue of legal cause
must be submitted to the jury considering an engaged-in-duty element.â (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 âpeace officerâ from the
statute (e.g., âa Garden Grove Regular Police Officer and a Garden Grove Reserve
Police Officer are peace officersâ). (Ibid.) However, the court may not instruct the
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477
jury that the alleged victim was a peace officer as a matter of law (e.g., âOfficer
Reed was a peace officerâ). (Ibid.) If the alleged victim is a police officer, give the
bracketed sentence that begins with âA person employed as a police officer.â If the
alleged victim is another type of peace officer, give the bracketed sentence that
begins with âA person employed by.â
Penal Code section 190.2(a)(7) defines âpeace officerâ as âdefined 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.â
Penal Code section 190.2(a)(9) defines âfirefighterâ âas defined in Section 245.1.â
If the decedent was a federal law enforcement officer or agent, then the term
âfederal law enforcement officerâ may need to be defined for the jury depending on
the decedentâs position.
The court may give the bracketed sentence that begins, âThe duties of (a/an)
<insert title . . . .> include,â on request. The court may insert a
description of the officerâs duties such as âthe correct service of a facially valid
search warrant.â (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 âreasonably should have
knownâ 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
âdiminished capacity,â 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 âself-induced diminished capacity.â (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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478
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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