SERIES 2700 CRIMES AGAINST GOVERNMENT—ESCAPE
F 2761 Escape By Force Or Violence (PC 4532(a)(2) & (b)(2))
TABLE OF CONTENTS
F 2761.1 Titles And Identification Of Parties
F 2761.1 Inst 1 Escape by Force Or Violence —Title
F 2761.1 Inst 2 Identification Of Prosecution And Defendant
F 2761.2 Escape by Force Or Violence —Tailoring To Facts: Persons, Places, Things And Theories [Reserved]
F 2761.3 Escape by Force Or Violence —Language That Is Argumentative, Confusing, Etc.
F 2761.3 Inst 1 Deletion Of Argumentative Language
F 2761.4 Escape by Force Or Violence —Burden Of Proof Issues
F 2761.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 2761.5 Escape by Force Or Violence —Elements And Definitions
F 2761.5 Inst 1 Separate Enumeration Of Combined Elements
F 2761.5 Inst 2 Incorporation Of Definitional Elements Of Escape Into Enumerated Elements
F 2761.5 Inst 3 Incorporation Of Lawful Custody Elements In Enumerated Elements
F 2761.5 Inst 4 Incorporation Of “Booked” Definitional Elements Into Enumerated Elements Of The Charge
F 2761.5 Inst 5 Incorporation Of “Charged” Definitional Elements Into Enumerated Elements Of The Charge
F 2761.5 Inst 6 Escape: Improper To Define “Force Or Violence” In Terms Of The Touching Element Of Battery
F 2761.5 Inst 7 Escape By Force Or Violence: Defendant Must Personally Use Force Or Violence Or Aid And Abet Or Conspire With The Person Who Used Force Or Violence
F 2761.5 Inst 8 Incorporation Of Lawful Custody Elements In Enumerated Elements
F 2761.6 Escape by Force Or Violence —Defense Theories [Reserved]
F 2761.7 Escape by Force Or Violence —Preliminary Fact Issues [Reserved]
F 2761.8 Escape by Force Or Violence —Unanimity/Duplicity/Multiplicity [Reserved]
F 2761.9 Escape by Force Or Violence —Lesser Offense Issues [Reserved]
Return to Series 2700 Table of Contents.
F 2761.1 Titles And Identification Of Parties
F 2761.1 Inst 1 Escape by Force Or Violence —Title
See generally, FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 2761.1 Inst 2 Identification Of Prosecution And Defendant
See generally, FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 2761.2 Escape by Force Or Violence —Tailoring To Facts: Persons, Places, Things And Theories [Reserved]
F 2761.3 Escape by Force Or Violence —Language That Is Argumentative, Confusing, Etc.
F 2761.3 Inst 1 Deletion Of Argumentative Language
See FORECITE F 2760.3 Inst 1.
F 2761.4 Escape by Force Or Violence —Burden Of Proof Issues
F 2761.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 2761.5 Escape by Force Or Violence —Elements And Definitions
F 2761.5 Inst 1 Separate Enumeration Of Combined Elements
See FORECITE F 2760.5 Inst 1.
F 2761.5 Inst 2 Incorporation Of Definitional Elements Of Escape Into Enumerated Elements
See FORECITE F 2760.5 Inst 2.
F 2761.5 Inst 3 Incorporation Of Lawful Custody Elements In Enumerated Elements
See FORECITE F 2760.5 Inst 3.
F 2761.5 Inst 4 Incorporation Of “Booked” Definitional Elements Into Enumerated Elements Of The Charge
See FORECITE F 2760.5 Inst 4.
F 2761.5 Inst 5 Incorporation Of “Charged” Definitional Elements Into Enumerated Elements Of The Charge
See FORECITE F 2760.5 Inst 5.
F 2761.5 Inst 6 Escape: Improper To Define “Force Or Violence” In Terms Of The Touching Element Of Battery
*Delete CC 2761, paragraph 7, which provides as follows:
To commit an act by force or violence means to wrongfully use physical force against the property or person of another. [To use force against a person means to touch the other person in a harmful or offensive manner. The slightest touching can be enough if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Need For Deletion—CALCRIM 2761 confuses the “use of force or violence” element necessary for a finding of forcible escape with the “touching” element necessary for a simple battery. While it is true that the “touching” for a simple battery is satisfied by even a slight or merely offensive contact applied in a rude or angry manner, that element is irrelevant to a finding of the “use of force or violence” necessary to aggravate a crime. (People v. Collins (1992) 10 CA4th 690, 697; Gunnell v. Metrocolor Laboratories, Inc. (2001) 92 CA4th 710, p. 724-725; People v. Rocha (1971) 3 C3d 893, 899-900, fn. 12.) The courts have found it to be error to instruct on the definition of touching in such instances because the “words, ‘force’ and ‘violence’ are words of ordinary meaning and require no further definition.” (People v. Collins (1992) 10 CA4th 690, 697.)
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITECG 13.
F 2761.5 Inst 7 Escape By Force Or Violence: Defendant Must Personally Use Force Or Violence Or Aid And Abet Or Conspire With The Person Who Used Force Or Violence
*Add to CC 2761:
In order to prove the “force or violence” element of the charge, the prosecution must prove beyond a reasonable doubt that the defendant [personally used force or violence] [or] [aided and abetted the person who used force or violence] [or] [conspired with the person who used force or violence].
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Propriety Of Instruction—In People v. Davis (1985) 166 CA3d 760, 767, the Court of Appeal held that the force or violence provisions in PC 4532(a) and PC 4532(b) apply to prisoners who escape knowing that the previous or contemporaneous use of force or violence created the conditions that made their escape possible. (Id., at 768.) However, in People v. Moretto (1994) 21 CA4th 1269, 1276, the Court of Appeal disagreed with Davis holding the prisoner must have personally used force or violence in order to escape or aided and abetted or conspired with the person who used force or violence. Accordingly, CC 2761 should be modified to properly require this element.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITECG 13.
CALJIC NOTE: See FORECITE F 7.31a.
F 2761.5 Inst 8 Incorporation Of Lawful Custody Elements In Enumerated Elements
See FORECITE F 2760.5 Inst 3.
ALERT: CALCRIM 2761 does not include a definition of lawful custody as does CALCRIM 2760.
F 2761.6 Escape by Force Or Violence —Defense Theories [Reserved]
F 2761.7 Escape by Force Or Violence —Preliminary Fact Issues [Reserved]
F 2761.8 Escape by Force Or Violence —Unanimity/Duplicity/Multiplicity [Reserved]
F 2761.9 Escape by Force Or Violence —Lesser-Offense Issues [Reserved]
