SERIES 3400 DEFENSES AND INSANITY
F 3475 Right To Eject Trespasser From Real Property
TABLE OF CONTENTS
F 3475 Inst 1 Beliefs Were Unreasonable: Modification Of Burden Shifting Language; No Duty To Decide
F 3475 Inst 2 Ejecting Trespasser: Pinpoint Instruction
F 3475 Inst 3 Ejecting Trespasser: Pinpoint Instruction Re: Reasonableness Of Force
F 3475 Inst 4 Ejecting Trespasser: Pinpoint Instruction—Increase Force
F 3475 Inst 5 Jurors Must Unanimously Reject Any Defenses Before Convicting
F 3475 Inst 6 Right To Eject A Trespasser Who Does Not “Pose A Threat”
F 3475 NOTES
F 3475 Note 1 Right To Eject A Trespasser Who Does Not “Pose A Threat”
Return to Series 3400 Table of Contents.
F 3475 Inst 1 Beliefs Were Unreasonable: Modification Of Burden Shifting Language; No Duty To Decide
*Modify CC 3475, paragraph 4, sentence 1, as follows [added language is underlined; deleted language is stricken]:
When deciding, if you can, whether the prosecution has proven that the defendant did not used reasonable force, consider all the circumstances as they were known to and or appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed.
Points and Authorities
See FORECITE F 3470.2 Inst 5.
F 3475 Inst 2 Ejecting Trespasser: Pinpoint Instruction
*Add to CC 3475 [CC 3400 Adaption]:
The defendant contends (he/she) properly ejected ____________ <name of trespasser> because (he/she) was a trespasser (in/on) the defendant’s (home/property) who did not leave within a reasonable time after being requested to do so and who posed a threat to the (home/property) [or] (owner/[or] occupants).
The defendant does not need to prove this contention.
The prosecution must prove beyond a reasonable doubt that the defendant had no right to use physical force to eject ____________ <name of trespasser>.
If you have a reasonable doubt whether the prosecution has met this burden you must find that the defendant had a right to use reasonable force to eject ____________ <name of trespasser>.
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.
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 3475 Inst 3 Ejecting Trespasser: Pinpoint Instruction Re: Reasonableness Of Force
*Add to CC 3475, paragraph 5, as follows [added language is underlined] [CC 3400 adaption]:
The defendant contends that (he/she) used reasonable force in ejecting ____________ <name of trespasser>. The defendant does not need to prove that the force (he/she) used was reasonable. 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>.
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.
Sentences 1& 2: Adapted from CC 3400.
Sentences 3 & 4: From CC 3475.
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 3475 Inst 4 Ejecting Trespasser: Pinpoint Instruction—Increase Force
*Replace CC 3475, paragraph 3, with the following:
The defendant contends that ____________ <name of trespasser> resisted (his/her) efforts to make (him/her) leave and therefore defendant had a right to increase the amount of force in proportion to the force used by ____________ <name of trespasser> and the threat (he/she) posed to the property [or] [the (owner/ [or] occupants) of the property].
The defendant does not need to prove this contention.
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>.
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.
Paragraphs 1 & 2: Adapted from CC 3400.
Paragraph 3: From CC 3475.
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 3475 Inst 5 Jurors Must Unanimously Reject Any Defenses Before Convicting
See FORECITE F 3500.2 Inst 4.
F 3475 Inst 6 Right To Eject A Trespasser Who Does Not “Pose A Threat”
*Modify CC 3475, paragraph 1, sentence 2 as follows [added language is underlined; deleted language is stricken]:
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.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]
CALCRIM Provides No Authority For Its Requirement That The Trespasser “Pose A Threat” – /span> California Civil Code § 50 provides as follows:
Any necessary force may be used to protect from wrongful injury the person or property of oneself, or of a wife, husband, child, parent, or other relative, or member of one’s family, or of a ward, servant, master, or guest.
There is nothing in this statute which permits jectment of only trespassers who “pose a threat” to the property or to persons occupying the property. It is true that defense of habitation does not permit the intentional use of deadly force except in self-defense or defense of others. (See People v. Curtis/u> (1994) 30 CA4th 1337, 1360.) However, when less than deadly force is reasonably used, the defense of habitation should apply even if the trespasser did not “pose a threat.” (Compare CJ 5.40.) As the Curtis court explained: “The defense of habitation applies where the defendant uses reasonable force to exclude someone he or she reasonably believes is trespassing. . . .”
WARNING! Federal constitutional claims may be lost without proper federalization –/span> 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 3475 NOTES
F 3475 Note 1 Ejecting Trespasser: Requirement That Trespasser “Pose A Threat”
CALCRIM 3475 has imposed a new requirement to the previously existing law and states that before a trespasser can be ejected by use of force, that it must “appear to a reasonable person that the trespasser poses a threat to the home/property or the owner/occupants.” (Compare CJ 5.40.) The cases cited in CC 3475 do not support this proposition.