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Name: People v. Johnson
Case #: B207182
Court: CA Court of Appeal
District 2 DCA
Division: 5
Opinion Date: 12/22/2009

The court did not err in rejecting a proposed instruction on the use of force in a trespass situation. Appellant, a homeless man who at times was given permission to stay at a motel, stabbed a motel employee who told him to leave. At his trial for assault with a deadly weapon, appellant proposed an instruction partly based on CALCRIM No. 3475 (right to eject trespasser from real property) which would have told the jury that it is unlawful to use force to remove a trespasser who is not likely to injure the property or its owner or occupants. The court refused the instruction finding it did not add or detract from the issue of self-defense. The appellate court found no error. The principles explained in CALCRIM No. 3475 are for when the owner or occupant is charged with using excessive force to remove the trespasser, not for when the trespasser is accused of using excessive force to resist being ejected. The principles in CALCRIM No. 3475 might also apply when there is a question of whether the trespasser could defend himself from the use of force by the owner/occupant. But by giving the self-defense instruction, it was assumed appellant could defend himself.
CALCRIM No. 3471 (mutual combat) was unnecessary when an unqualified self-defense instruction was given. Appellant also argued CALCRIM No. 3471 (mutual combat) should have been given sua sponte. Again, the court found the instruction was not necessary because the self-defense instruction given assumed appellant had a right to defend himself.