CALCRIM No. 3261. While Committing a Felony: Defined - Escape Rule

Judicial Council of California Criminal Jury Instructions (2024 edition)

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3261.While Committing a Felony: Defined - Escape Rule
The People must prove that <insert allegation, e.g., the
defendant personally used a firearm> while committing [or attempting to
commit] <insert felony or felonies>.
<Give one or more bracketed paragraphs below depending on crime[s]
alleged.>
<Robbery>
[The crime of robbery [or attempted robbery] continues until the
perpetrator[s] (has/have) actually reached a place of temporary safety.
The perpetrator[s] (has/have) reached a place of temporary safetyif:
•(He/She/They) (has/have) successfully escaped from the scene;
[and]
•(He/She/They) (is/are) not or (is/are) no longer being chased(;
[and]/.)
•[(He/She/They) (has/have) unchallenged possession of the
property(; [and]/.)]
•[(He/She/They) (is/are) no longer in continuous physical control of
the person who is the target of the robbery.]]
<Burglary>
[The crime of burglary [or attempted burglary] continues until the
perpetrator[s] (has/have) actually reached a place of temporary safety.
The perpetrator[s] (has/have) reached a place of temporary safety if (he/
she/they) (has/have) successfully escaped from the scene[,] [and] (is/are)
no longer being chased[, and (has/have) unchallenged possession of the
property].]
<Sexual Assault>
[The crime of <insert sexual assault alleged> [or attempted
<insert sexual assault alleged>] continues until the
perpetrator[s] (has/have) actually reached a place of temporary safety.
The perpetrator[s] (has/have) reached a place of temporary safety if (he/
she/they) (has/have) successfully escaped from the scene[,] [and] (is/are)
no longer being chased[, and (is/are) no longer in continuous physical
control of the person who was the target of the crime].]
<Kidnapping>
[The crime of kidnapping [or attempted kidnapping] continues until the
perpetrator[s] (has/have) actually reached a place of temporary safety.
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The perpetrator[s] (has/have) reached a place of temporary safety if (he/
she/they) (has/have) successfully escaped from the scene, (is/are) no
longer being chased, and (is/are) no longer in continuous physical control
of the person kidnapped.]
<Other Felony>
[The crime of <insert felony alleged> [or attempted
<insert felony alleged>] continues until the perpetrator[s]
(has/have) actually reached a place of temporary safety. The
perpetrator[s] (has/have) reached a place of temporary safety if (he/she/
they) (has/have) successfully escaped from the scene and (is/are) no
longer being chased.]
New January 2006; Revised August 2006, August 2013
BENCH NOTES
Instructional Duty
Give this instruction whenever the evidence raises an issue over the duration of the
felony and another instruction given to the jury has required some act “during the
commission or attempted commission” of the felony. (See People v. Wilkins (2013)
56 Cal.4th 333, 347-348 [153 Cal.Rptr.3d 519, 295 P.3d 903].)
This instruction should not be given if the issue is when the defendant formed the
intent to aid and abet a robbery or a burglary. For robbery, give CALCRIM No.
1603, Robbery: Intent of Aider and Abettor. For burglary, give CALCRIM No.
1702, Burglary: Intent of Aider and Abettor.
AUTHORITY
• Escape Rule. People v. Wilkins (2013) 56 Cal.4th 333, 347-348 [153 Cal.Rptr.3d
519, 295 P.3d 903].
• Place of Temporary Safety. People v. Salas (1972) 7 Cal.3d 812, 823 [103
Cal.Rptr. 431, 500 P.2d 7]; People v. Johnson (1992) 5 Cal.App.4th 552, 560 [7
Cal.Rptr.2d 23].
• Continuous Control of Victim. People v. Thompson (1990) 50 Cal.3d 134,
171-172 [266 Cal.Rptr. 309, 785 P.2d 857] [lewd acts]; People v. Carter (1993)
19 Cal.App.4th 1236, 1251-1252 [23 Cal.Rptr.2d 888] [robbery].
• Robbery. People v. Salas (1972) 7 Cal.3d 812, 823 [103 Cal.Rptr. 431, 500 P.2d
7]; People v. Cooper (1991) 53 Cal.3d 1158, 1170 [282 Cal.Rptr. 450, 811 P.2d
742].
• Burglary. People v. Bodely (1995) 32 Cal.App.4th 311, 313-314 [38 Cal.Rptr.2d
72].
• Lewd Acts on Child. People v. Thompson (1990) 50 Cal.3d 134, 171-172 [266
Cal.Rptr. 309, 785 P.2d 857].
ENHANCEMENTS AND SENTENCING FACTORS CALCRIM No. 3261
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• Sexual Assault. People v. Hart (1999) 20 Cal.4th 546, 611 [85 Cal.Rptr.2d 132,
976 P.2d 683]; People v. Hernandez (1988) 47 Cal.3d 315, 348 [253 Cal.Rptr.
199, 763 P.2d 1289].
• Kidnapping. People v. Pearch (1991) 229 Cal.App.3d 1282, 1299 [280 Cal.Rptr.
584]; People v. Silva (1988) 45 Cal.3d 604, 632 [247 Cal.Rptr. 573, 754 P.2d
1070].
RELATED ISSUES
Place of Temporary Safety Based on Objective Standard
Whether the defendant had reached a place of temporary safety is judged on an
objective standard. The “issue to be resolved is whether a robber had actually
reached a place of temporary safety, not whether the defendant thought that he or
she had reached such a location.” (People v. Johnson (1992) 5 Cal.App.4th 552, 560
[7 Cal.Rptr.2d 23].)
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 156, 157, 160, 162.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, §§ 142.01[2][b][v], 142.10[1][b] (Matthew Bender).
3262-3399. Reserved for Future Use
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