F 8.81.8

F 8.81.8 n1 Peace Officer Victim: “Performance Of Duties Defined” (PC 190.2(a)(7)/PC 190.2(a)(8)/PC 190.1(a)(9)).

Lawful Detention Defined

See FORECITE F 9.27a; see also People v. Mayfield (97) 14 C4th 668 [60 CR2d 1] [officer is engaged in performance of duties if making a lawful detention].

People v. Jenkins (2000) 22 C4th 900, 1019-20 [95 CR2d 377] held that although PC 190.2(a)(7) requires a subjective purpose to retaliate for performance of official duties (performance of which must in fact have been lawful), the special circumstance does not require a subjective awareness on the part of the defendant that the officer had acted lawfully in performing those official duties.

F 8.81.8 n2 Federal Officer Special Requires Actual Knowledge.

(See FORECITE F 8.81.7 n2.)

F 8.81.8 n3 Appellate Issue Alert: Pre-1997 Version.

The pre-1997 version of CJ 8.81.8 failed to require a finding based on a “reasonable peace officer.” (See CALJIC History CJ 8.81.8.)

F 8.81.8a

Peace Officer Special Circumstance: Proper Warrant Service As Factual Issue

(PC 190.2(a)(7))

*Modify CJ 8.81.8 ¶ 8 to provide as follows [added language is capitalized]:

“1. [Acting under a warrant of arrest WHICH WAS VALID ON ITS FACE AND PROPERLY SERVED. AN ARREST IS NOT LAWFUL UNLESS THE OFFICER ACTED ONLY AS THE WARRANT EXPRESSLY AUTHORIZED AND COMMANDED.”]

Points and Authorities

The proper service of a warrant is a jury issue under the “engaged-in-duty” requirement of the peace-officer special circumstance. (PC 190.2(a)(7); People v. Gonzalez (90) 51 C3d 1179, 1222-23 [275 CR 729].) Moreover, although the jury does not decide whether the facts disclosed to the magistrate were legally sufficient to establish probable cause, the question of whether the victim was engaged in official “duties” includes determining whether he or she obtained a warrant which was regular on its face and acted only as the warrant expressly authorized and commanded. (See People v. Mayfield (97) 14 C4th 668 [60 CR2d 1] [the phrase “engaged in performance of his or her duties” means the officer must have been acting lawfully at the time].)

The July 1991 CALJIC pocket part opines that the facial validity of the warrant is a legal issue for the court to resolve. However, unless the warrant is facially valid the officer is not “engaged in the performance of his duties.” (Gonzales at 1220-21.) And, because the latter issue is a factual one (People v. Henderson (76) 58 CA3d 349, 358-59 [129 CR 844]), the jury must determine the facial validity of the warrant. (People v. Figueroa (86) 41 C3d 714, 724, 733 [224 CR 719] [state and federal (14th Amendment) due process require jury to find all elements of the charge]; see also People v. Hedgecock (90) 51 C3d 395, 407 [272 CR 803] [the distinction between question of law / question of fact “plays a relatively limited role in view of the defendant’s constitutional right to have a jury determine the existence of all elements of the offense charged.” [Citing Figueroa].)

Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII.]