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
char ged> . 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]
danger of suf fering 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;
3. The defendant used no more force than was reasonably necessary
to defend against that danger.
Belief in future harm is not su f ficient, no matter how gr eat or how likely
the harm is believed to be. The defendant must have believed ther e 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 r easonable and
(he/she) must have acted because of that belief. The defendant is only
entitled to use that amount of force that a r easonable person would
believe is necessary in the same situation. If the defendant used more
force than was r easonable, the defendant did not act in lawful
(self-defense/ [or] defense of another).
When deciding whether the defendant’ s beliefs were r easonable, consider
all the circumstances as they wer e known to and appear ed to the
defendant and consider what a r easonable person in a similar situation
with similar knowledge would have believed. If the defendant’ s beliefs
were r easonable, 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 thr ough 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 thr eatened
may be reasonable even if (he/she) r elied on information that was not
true. However , the defendant must actually and reasonably have believed
that the information was true.]
[If you find that
harmed the defendant [or others] in the past, you may consider that
information in deciding whether the defendant’ s conduct and beliefs
were r easonable.]
[If you find that the defendant knew that victim> had threatened or harmed others in the past, you may consider that information in deciding whether the defendant’ s conduct and beliefs were r easonable.] [Someone who has been threatened or harmed by a person in the past is justified in acting more quickly or taking greater self-defense measur es against that person.] [If you find that the defendant received a thr eat fr om someone else that (he/she) reasonably associated with you may consider that thr eat in deciding whether the defendant was justified in acting in (self-defense/ [or] defense of another).] [A defendant is not requir ed to r etreat. 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/ have been achieved by retr eating.] The People have the burden of proving beyond a r easonable 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 New January 2006; Revised June 2007, April 2008, August 2009, February 2012, August 2012, Mar ch 2022 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 11 1]; People v . Br everman (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 suf ficient 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].) CALCRIM No. 3470 DEFENSES AND INSANITY On defense request and when supported by suf ficient evidence, the court must instruct that the jury may consider the ef fect of “antecedent threats and assaults against the defendant on the reasonableness of defendant’ s conduct.” ( People v . Garvin (2003) 1 10 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 , CALCRIM No. 851, T estimony on Intimate Partner Battering and Its Effects: Offer ed by the Defense . CALCRIM No. 2514, Possession of Fir earm by Person Pr ohibited by Statute: Self- • 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 • 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 1 178, 1 187 [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]. • T emporary Possession of Firearm by Felon in Self-Defense. People v . King (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 DEFENSES AND INSANITY CALCRIM No. 3470 Cal.Rptr .2d 142, 921 P .2d 1]; People v . Clark (1982) 130 Cal.App.3d 371, 377 [181 Cal.Rptr . 682]. RELA TED ISSUES Brandishing W eapon 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, T orts (5th ed. 1984) § 32, p. 177.)” ( Ibid. ; see also Rest.2d T orts, § 283B.) Reasonable Person Standard and Physical Limitations A defendant’ s physical limitations are relevant when deciding the reasonable person standard for self-defense. ( People v . Horn (2021) 63 Cal.App.5th 672, 686 [277 Cal.Rptr .3d 901].) See also CALCRIM No. 3429, Reasonable Person Standard for Physically Disabled Person . See also the Related Issues section of CALCRIM No. 505, Justifiable Homicide: Self-Defense or Defense of Another . SECONDAR Y SOURCES 1 W itkin & Epstein, California Criminal Law (4th ed. 2012) Defenses, §§ 68, 3 Millman, Sevilla & T arlow , California Criminal Defense Practice, Ch. 73, Defenses and Justifications, §§ 73.1 1, 73.12 (Matthew Bender). 6 Millman, Sevilla & T arlow , California Criminal Defense Practice, Ch. 124, Jurisdiction and Disposition Hearings, § 124.04 (Matthew Bender). CALCRIM No. 3470 DEFENSES AND INSANITY Page last reviewed May 2024 Kathryn Robb, National Director of the Children’s Justice Campaign at Enough Abuse, discusses Vice President Kamala Harris’s unusual mention of child sexual abuse during her Democratic National Convention speech and its broader implications for addressing this issue in America. Lawyers - Get Listed Now! Get a free directory profile listing
