3471. Right to Self-Defense: Mutual Combat or Initial Aggressor

A person who engages in mutual combat or who is the first one to use physical force has a right to self-defense only if:

1. (he/she) actually and in good faith tries to stop fighting;

[AND]

2. (he/she) indicates, by word or by conduct, to (his/her) opponent, in a way that a reasonable person would understand, that (he/she) wants to stop fighting and that (he/she) has stopped fighting(;/.)

<Give element 3 in cases of mutual combat>

[AND

3. (he/she) gives (his/her) opponent a chance to stop fighting.]

If a person meets these requirements, (he/she) then has a right to self-defense if the opponent continues to fight.

[If you decide that the defendant started the fight using non-deadly force and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight, then the defendant had the right to defend (himself/herself) with deadly force and was not required to try to stop fighting.]

Bench Notes

Instructional Duty

The court has a sua sponte duty to give defense instructions supported by the evidence and not inconsistent with the defendant's theory of the case. (People v. Baker (1999) 74 Cal.App.4th 243, 252 [87 Cal.Rptr.2d 803]; People v. Barton (1995) 12 Cal.4th 186, 195 [47 Cal.Rptr.2d 569, 906 P.2d 531].)

Give bracketed element 3 if the person claiming self-defense was engaged in mutual combat.

If the defendant started the fight using non-deadly force and the opponent suddenly escalates to deadly force, the defendant may defend himself or herself using deadly force. (See People v. Quach (2004) 116 Cal.App.4th 294, 301-302 [10 Cal.Rptr.3d 196]; People v. Sawyer (1967) 256 Cal.App.2d 66, 75 [63 Cal.Rptr. 749]; People v. Hecker (1895) 109 Cal. 451, 464 [42 P. 307].) In such cases, give the bracketed sentence that begins with "If you decide that."

If the defendant was the initial aggressor and is charged with homicide, always give CALCRIM No. 505, Justifiable Homicide: Self-Defense or Defense of Another, in conjunction with this instruction.

Authority

Instructional Requirements. See Pen. Code, § 197, subd. 3; People v. Button (1895) 106 Cal. 628, 633 [39 P. 1073]; People v. Crandell (1988) 46 Cal.3d 833, 871-872 [251 Cal.Rptr. 227, 760 P.2d 423]; People v. Sawyer (1967) 256 Cal.App.2d 66, 75 [63 Cal.Rptr. 749].

Escalation to Deadly Force. People v. Quach (2004) 116 Cal.App.4th 294, 301-302 [10 Cal.Rptr.3d 196]; People v. Sawyer (1967) 256 Cal.App.2d 66, 75 [63 Cal.Rptr. 749]; People v. Hecker (1895) 109 Cal. 451, 464 [42 P. 307]; People v. Anderson (1922) 57 Cal.App. 721, 727 [208 P. 204].

Secondary Sources

1 Witkin & Epstein, Caifornia. Criminal Law (3d ed. 2000) Defenses, § 75.

3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73, Defenses and Justifications, § 73.11[2][a] (Matthew Bender).

(New January 2006)