California Criminal Jury Instructions (CALCRIM) (2017)
3475. Right to Eject Trespasser From Real PropertyDownload PDF
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
[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
New January 2006; Revised April 2008
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
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]; 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
CALCRIM No. 3476, Right to Defend Real or Personal Property.
CALCRIM No. 3477, Presumption That Resident Was Reasonably Afraid of Death
or Great Bodily Injury.
CALCRIM No. 506, Justiﬁable Homicide: Defending Against Harm to Person
Within Home or on 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
[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
CALCRIM No. 3475 DEFENSES AND INSANITY