3475. Right to Eject Trespasser From Real Property
The (owner/lawful occupant) of a (home/property) may request that a trespasser leave the (home/property). If the trespasser does not leave within a reasonable time and it would appear to a reasonable person that the trespasser poses a threat to (the (home/property)/ [or] the (owner/ [or] occupants), the (owner/ lawful occupant) may use reasonable force to make the trespasser leave.
Reasonable force means the amount of force that a reasonable person in the same situation would believe is necessary to make the trespasser leave.
[If the trespasser resists, the (owner/lawful occupant) may increase the amount of force he or she uses in proportion to the force used by the trespasser and the threat the trespasser poses to the property.]
When deciding whether the defendant used reasonable force, 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 People have the burden of proving beyond a reasonable doubt that the defendant used more force than was reasonable. If the People have not met this burden, you must find the defendant not guilty of <insert crime>.
The court has a sua sponte duty to instruct on a defense when the defendant is relying on the defense, or if there is substantial evidence supporting the defense and it is not inconsistent with the defendant's theory of the case. (See People v. Breverman (1998) 19 Cal.4th 142, 156 [77 Cal.Rptr. 2d 870, 960 P.2d 1094] [addressing court's sua sponte instructional duties on defenses and lesser included offenses generally].)
CALCRIM No. 3476, Right to Defend Real or Personal Property.
Instructional Requirements. See People v. Corlett (1944) 67 Cal.App.2d 33, 51-52 [153 P.2d 595]; People v. Teixeira (1899) 123 Cal. 297, 298-299 [55 P. 988]; Civ. Code, § 50.
Burden of Proof. See Boyer v. Waples (1962) 206 Cal.App.2d 725, 727 [24 Cal.Rptr. 192] [civil action].
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Defenses, § 78.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73, Defenses and Justifications, §§ 73.11, 73.13 (Matthew Bender).
Negating Self-Defense Claim
The right to defend one's home may negate a defendant's claim of imperfect self-defense, as held in People v. Watie (2002) 100 Cal.App.4th 866, 878 [124 Cal.Rptr.2d 258]:
[T]he right of a victim to defend himself and his property is a relevant consideration in determining whether a defendant may prevail when he seeks to negate malice aforethought by asserting the affirmative defense of imperfect self-defense. . . [¦] . . .If [the victim] had a right to use force to defend himself in his home, then defendant had no right of self-defense, imperfect, or otherwise.
(New January 2006)