SERIES 3400 DEFENSES AND INSANITY
F 3471 Right to Self-Defense: Mutual Combat Or Initial Aggressor
TABLE OF CONTENTS
F 3471 Inst 1 Modification Of Burden Shifting Language; Tailoring To Facts
F 3471 Inst 2 Mutual Combat Or Initial Aggressor: Burden Of Prosecution
F 3471 Inst 3 Mutual Combat Or Initial Aggressor: Deadly Escalation—Modification Of Burden Shifting Language
F 3471 Inst 4 Jurors Must Unanimously Reject Any Defenses Before Convicting
F 3471 Inst 5 Mutual Combat Requires “Prearrangement” or “Agreement to Fight”
Return to Series 3400 Table of Contents.
F 3471 Inst 1 Modification Of Burden Shifting Language; Tailoring To Facts
*Modify CC 3471 as follows [added language is underlined; deleted language is stricken]:
A person who Even if the defendant engagesd in mutual combat or who startsed a fight (he/she) still hasd a right to self-defense only if against [continued fighting by] [subsequent use of force by] _____________ <name of alleged victim> only if unless the prosecution has proven beyond a reasonable doubt that the defendant either:
1. (He/She) Did not actually and in good faith tries try to stop fighting;
[AND]OR
2. (He/She) Failed to indicates, by word or by conduct, to (his/her) opponent, in a way that a reasonable person would understand, that (he/she) wantsed to stop fighting and that (he/she) hasd stopped fighting(;/./[OR])
<Give element 3 in cases of mutual combat>
[AND
3. (He/She) Failed to gives (his/her) opponent a chance to stop fighting.]
If the defendant meets these requirements, (he/she) then had a right to self-defense if the opponent continued to fight.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]
Burden Shifting—See FORECITE F 404.2 Inst 1.
Tailor To Facts: “Defendant” vs. “A Person”—See FORECITE F 400.2 Inst 2.
WARNING! Federal constitutional claims may be lost without proper federalization – To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 3.7 [Failure To Tailor Elements To The Facts And Charge]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 3471 Inst 2 Mutual Combat Or Initial Aggressor: Burden Of Prosecution
*Add to CC 3471 as follows:
The prosecution contends that the defendant had no right of self-defense because (he/she) [was the first one to use physical force] [engaged] in mutual combat. This requires the prosecution to prove beyond a reasonable doubt that the defendant [was the first one to use physical force] [engaged] in mutual combat. If you have a reasonable doubt whether the prosecution has met this burden then you must find that the defendant did have a right to self-defense.
The defense contends that (1) (he/she) was not [the first one to use physical force] [engaged] in mutual combat, and (2) even if (he/she) is proven to have been [the first one to use physical force] [engaged] in mutual combat (he/she) still had a right to self-defense because (he/she) tried to stop fighting. The defendant does not need to prove that (he/she) tried to stop fighting or indicated this to _____________ <name of decedent/alleged victim>. The prosecution must prove that the defendant did not try to stop fighting by proving beyond a reasonable doubt that the defendant either failed to actually and in good faith try to stop fighting or failed to indicate by words or conduct to _____________ <name of decedent/alleged victim> in a way that a reasonable person would understand, that (he/she) wants to stop fighting and that (he/she) had stopped fighting.
If you have a reasonable doubt about whether the prosecution has met this burden, you must find that the defendant had a right to self-defense.
If you find that the prosecution has met this burden, you must consider the defendant’s contention that (he/she) had no opportunity to withdraw because _____________ <name of decedent/alleged victim> suddenly escalated the fight by use of deadly force. The defendant does not need to prove this contention. The prosecution must prove beyond a reasonable doubt either that:
1. The defendant used deadly force; or
2. _____________ <name of decedent/alleged victim> did not respond with sudden and deadly force; or
3. The defendant did have an opportunity to withdraw.
If you have a reasonable doubt whether the prosecution has proven at least one of these three things you must find that the defendant had a right to self-defense.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Right To Pinpoint Instruction Relating Defense Theory To Burden Of Proof—See FORECITE F 315.1.2 Inst 2.
Prosecution’s Burden Re: Self-Defense: See CALCRIM 3470, Authority.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 3471 Inst 3 Mutual Combat Or Initial Aggressor: Deadly Escalation—Modification Of Burden Shifting Language
*Modify CC 3471, paragraph 3, as follows [added language is underlined; deleted language is stricken]:
[However, if tThe defendant contends (he/she) used only non-deadly force, and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight, then and, therefore, the defendant had the right to defend (himself/herself) with deadly force and was not required to try to stop fighting(,/ or) communicate the desire to stop to the opponent[, or give the opponent a chance to stop fighting].]
Points and Authorities
See FORECITE F 3471 Inst 2.
F 3471 Inst 4 Jurors Must Unanimously Reject Any Defenses Before Convicting
See FORECITE F 3500.2 Inst 4.
F 3471 Inst 5 Mutual Combat Requires “Prearrangement” or “Agreement to Fight”
ALERT: CALCRIM HISTORY – The CALCRIM Committee addressed this defect in its December 2008 revisions.
*Add to cc 3471:
For purposes of this instruction the term mutual combat means a violent confrontation conducted pursuant to prearrangement, mutual consent, or an express or implied agreement to fight.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]
Duty To Define Mutual Combat – See People v. Ross (2007) 155 CA4th 1033 [no mutual combat where facts merely showed an exchange of belligerent comments culminating in an impulsive and unexpected blow by the victim to which the defendant responded in kind].
See also PG V(A)(8) [Terms With Specialized/Technical Meaning: Sua Sponte Duty to Define]; see also FORECITE CHK III “Technical Terms and Definitions.”
Prosecution’s Burden Re: Self-Defense: See CALCRIM 3470, Authority.
WARNING! Federal constitutional claims may be lost without proper federalization – To preserve federal claims counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
