Section 508 | CALCRIM (Jury Instructions)

date, the court should give the prior version of this instruction.
The jury must determine whether the defendant was 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 in 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 defendant was a peace officer as a matter of law (e.g., “Officer Reed
was a peace officer”). (Ibid.) If the defendant is a police officer, give the bracketed
sentence that begins with “A person employed as a police officer.” If the defendant
is another type of peace officer, give the bracketed sentence that begins with “A
person employed by.”
Related Instructions
CALCRIM No. 508, Justifiable Homicide: Citizen Arrest (Non-Peace Offıcer).
CALCRIM No. 509, Justifiable Homicide: Non-Peace Offıcer Preserving the Peace.
AUTHORITY
•
Justifiable Homicide by Peace Officer. Pen. Code, §§ 196, 199, 835a.
•
Burden of Proof. Pen. Code, § 189.5; People v. Frye (1992) 7 Cal.App.4th 1148,
1154–1155 [10 Cal.Rptr.2d 217]; People v. Banks (1976) 67 Cal.App.3d 379,
383–384 [137 Cal.Rptr. 652].
•
Peace Officer Defined. Pen. Code, § 830 et seq.
•
Serious Bodily Injury Defined. Pen. Code, § 243(f)(4); People v. Taylor (2004)
118 Cal.App.4th 11, 25, fn. 4 [12 Cal.Rptr.3d 693].
•
Deadly Force Defined. Pen. Code, § 835a(e).
COMMENTARY
Graham Factors
In determining reasonableness, the inquiry is whether the officer’s actions are
objectively reasonable from the perspective of a reasonable officer on the scene.
(Graham v. Connor (1989) 490 U.S. 386, 396 [109 S.Ct. 1865, 104 L.Ed.2d 443].)
Factors relevant to the totality of the circumstances may include those listed in
Graham, but those factors are not exclusive. (See Glenn v. Washington County (9th
Cir. 2011) 673 F.3d 864, 872.) The Graham factors may not all apply in a given
case. (See People v. Perry (2019) 36 Cal.App.5th 444, 473, fn. 18 [248 Cal.Rptr.3d
522].) Conduct and tactical decisions preceding an officer’s use of deadly force are
relevant considerations. (Hayes v. County of San Diego (2013) 57 Cal.4th 622, 639
[160 Cal.Rptr.3d 684, 305 P.3d 252] [in context of negligence liability].)
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Defenses, § 95.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justifications, § 73.15[1] (Matthew Bender).
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
CALCRIM No. 507
HOMICIDE
234

an injury that is greater than minor or moderate harm.
The People have the burden of proving beyond a reasonable doubt that
the [attempted] killing was not justified. If the People have not met this
burden, you must find the defendant not guilty of [attempted] (murder/
[or] manslaughter).
New January 2006; Revised April 2011, February 2012,