California Criminal Jury Instructions (CALCRIM) (2017)

3470. Right to Self-Defense or Defense of Another (Non-Homicide)

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D. SELF-DEFENSE AND DEFENSE OF ANOTHER
3470.Right to Self-Defense or Defense of Another (Non-
Homicide)
Self-defense is a defense to <insert list of pertinent crimes
charged>. The defendant is not guilty of (that/those crime[s]) if (he/she)
used force against the other person in lawful (self-defense/ [or] defense
of another). The defendant acted in lawful (self-defense/ [or] defense of
another) if:
1. The defendant reasonably believed that (he/she/ [or] someone
else/ [or] <insert name of third party>) was in
imminent danger of suffering bodily injury [or was in imminent
danger of being touched unlawfully];
2. The defendant reasonably believed that the immediate use of
force was necessary to defend against that danger;
AND
3. The defendant used no more force than was reasonably
necessary to defend against that danger.
Belief in future harm is not sufficient, no matter how great or how
likely the harm is believed to be. The defendant must have believed
there was (imminent danger of bodily injury to (himself/herself/ [or]
someone else)/[or] an imminent danger that (he/she/[or] someone else)
would be touched unlawfully). Defendant’s belief must have been
reasonable and (he/she) must have acted because of that belief. The
defendant is only entitled to use that amount of force that a reasonable
person would believe is necessary in the same situation. If the defendant
used more force than was reasonable, the defendant did not act in
lawful (self-defense/ [or] defense of another).
When deciding whether the defendant’s beliefs were reasonable,
consider all the circumstances as they were known to and appeared to
the defendant and consider what a reasonable person in a similar
situation with similar knowledge would have believed. If the defendant’s
beliefs were reasonable, the danger does not need to have actually
existed.
[The slightest touching can be unlawful 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.]
[The defendant’s belief that (he/she/ [or] someone else) was threatened
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may be reasonable even if (he/she) relied on information that was not
true. However, the defendant must actually and reasonably have
believed that the information was true.]
[If you find that <insert name of victim> threatened or
harmed the defendant [or others] in the past, you may consider that
information in deciding whether the defendant’s conduct and beliefs
were reasonable.]
[If you find that the defendant knew that <insert name of
victim> had threatened or harmed others in the past, you may consider
that information in deciding whether the defendant’s conduct and
beliefs were reasonable.]
[Someone who has been threatened or harmed by a person in the past is
justified in acting more quickly or taking greater self-defense measures
against that person.]
[If you find that the defendant received a threat from someone else that
(he/she) reasonably associated with <insert name of victim>,
you may consider that threat in deciding whether the defendant was
justified in acting in (self-defense/ [or] defense of another).]
[A defendant is not required to retreat. He or she is entitled to stand his
or her ground and defend himself or herself and, if reasonably
necessary, to pursue an assailant until the danger of (death/bodily
injury/ <insert crime>)has passed. This is so even if safety
could have been achieved by retreating.]
The People have the burden of proving beyond a reasonable doubt that
the defendant did not act in lawful (self-defense/ [or] defense of
another). If the People have not met this burden, you must find the
defendant not guilty of <insert crime(s) charged>.
New January 2006; Revised June 2007; April 2008, August 2009, February 2012,
August 2012
BENCH NOTES
Instructional Duty
The court must instruct on a defense when the defendant requests it and there is
substantial evidence supporting the defense. The court has a sua sponte duty to
instruct on a defense if there is substantial evidence supporting it and either the
defendant is relying on it or it is not inconsistent with the defendant’s theory of the
case. When the court concludes that the defense is supported by substantial
evidence and is inconsistent with the defendant’s theory of the case, however, it
should ascertain whether defendant wishes instruction on this alternate theory.
(People v. Gonzales (1999) 74 Cal.App.4th 382, 389–390 [88 Cal.Rptr.2d 111];
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People v. Breverman (1998) 19 Cal.4th 142, 157 [77 Cal.Rptr.2d 870, 960 P.2d
1094].)
Substantial evidence means evidence of a defense, which, if believed, would be
sufficient for a reasonable jury to find a reasonable doubt as to the defendant’s
guilt. (People v. Salas (2006) 37 Cal.4th 967, 982–983 [38 Cal.Rptr.3d 624, 127
P.3d 40].)
On defense request and when supported by sufficient evidence, the court must
instruct that the jury may consider the effect of “antecedent threats and assaults
against the defendant on the reasonableness of defendant’s conduct.” (People v.
Garvin (2003) 110 Cal.App.4th 484, 488 [1 Cal.Rptr.3d 774].) The court must also
instruct that the jury may consider previous threats or assaults by the aggressor
against someone else or threats received by the defendant from a third party that
the defendant reasonably associated with the aggressor. (See People v. Pena (1984)
151 Cal.App.3d 462, 475 [198 Cal.Rptr. 819]; People v. Minifie (1996) 13 Cal.4th
1055, 1065, 1068 [56 Cal.Rptr.2d 133, 920 P.2d 1337]; see also CALCRIM No.
505, Justifiable Homicide: Self-Defense or Defense of Another.)
Related Instructions
CALCRIM No. 505, Justifiable Homicide: Self-Defense or Defense of Another.
CALCRIM Nos. 3471–3477, Defense Instructions: Defense of Self, Another,
Property.
CALCRIM No. 851, Testimony on Intimate Partner Battering and Its Effects:
Offered by the Defense.
CALCRIM No. 2514, Possession of Firearm by Person Prohibited by Statute: Self-
Defense.
AUTHORITY
• Instructional Requirements. People v. Moody (1943) 62 Cal.App.2d 18 [143
P.2d 978]; People v. Myers (1998) 61 Cal.App.4th 328, 335, 336 [71
Cal.Rptr.2d 518].
• Lawful Resistance. Pen. Code, §§ 692, 693, 694; Civ. Code, § 50; see also
People v. Myers (1998) 61 Cal.App.4th 328, 335 [71 Cal.Rptr.2d 518].
• Burden of Proof. Pen. Code, § 189.5; People v. Banks (1976) 67 Cal.App.3d
379, 383–384 [137 Cal.Rptr. 652].
• Elements. People v. Humphrey (1996) 13 Cal.4th 1073, 1082 [56 Cal.Rptr.2d
142, 921 P.2d 1].
• Imminence. People v. Aris (1989) 215 Cal.App.3d 1178, 1187 [264 Cal.Rptr.
167] (overruled on other grounds in People v. Humphrey (1996) 13 Cal.4th
1073, 1089 [56 Cal.Rptr.2d 142, 921 P.2d 1]).
• No Duty to Retreat. People v. Hughes (1951) 107 Cal.App.2d 487, 494 [237
P.2d 64]; People v. Hatchett (1942) 56 Cal.App.2d 20, 22 [132 P.2d 51].
• Temporary Possession of Firearm by Felon in Self-Defense. People v. King
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(1978) 22 Cal.3d 12, 24 [148 Cal.Rptr. 409, 582 P.2d 1000].
• Duty to Retreat Limited to Felon in Possession Cases. People v. Rhodes
(2005) 129 Cal.App.4th 1339, 1343–1346 [29 Cal.Rptr.3d 226].
• Inmate Self-Defense. People v. Saavedra (2007) 156 Cal.App.4th 561 [67
Cal.Rptr.3d 403].
• Reasonable Belief. People v. Humphrey (1996) 13 Cal.4th 1073, 1082 [56
Cal.Rptr.2d 142, 921 P.2d 1]; People v. Clark (1982) 130 Cal.App.3d 371, 377
[181 Cal.Rptr. 682].
Secondary Sources
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Defenses, §§ 65, 66,
69, 70.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justifications, §§ 73.11, 73.12 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 124,
Jurisdiction and Disposition Hearings, § 124.04 (Matthew Bender).
RELATED ISSUES
Brandishing Weapon in Defense of Another
The defense of others is a defense to a charge of brandishing a weapon under Penal
Code section 417(a)(2). (People v. Kirk (1986) 192 Cal.App.3d Supp. 15, 19 [238
Cal.Rptr. 42].)
Reasonable Person Standard Not Modified by Evidence of Mental Impairment
In People v. Jefferson (2004) 119 Cal.App.4th 508, 519 [14 Cal.Rptr.3d 473], the
court rejected the argument that the reasonable person standard for self-defense
should be the standard of a mentally ill person like the defendant. “The common
law does not take account of a person’s mental capacity when determining whether
he has acted as the reasonable person would have acted. The law holds ‘the
mentally deranged or insane defendant accountable for his negligence as if the
person were a normal, prudent person.’ (Prosser & Keeton, Torts (5th ed. 1984)
§ 32, p. 177.)” (Ibid.; see also Rest.2d Torts, § 283B.)
See also the Related Issues section of CALCRIM No. 505, Justifiable Homicide:
Self-Defense or Defense of Another.
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