In defense of self-defense

First post here, thanks Jenny for the invite! Jenny and I just finished up another massive brief as team JennBess, BrandtStiff?, MachtBrandtelman? We’ll leave naming the team for another day. Among many fun arguments, we asserted the right of self-defense to vandalism charges. As there’s no California law on this, we thought it worth sharing the argument. Let’s make some law?

The self-defense instruction, CALCRIM Number 3470, does not limit itself to a defense against any particular crime such as battery or assault. Instead, the instruction focuses on the conduct alleged.  Thus, by the very terms of the instruction, self-defense is an affirmative defense to any crime. (CALCRIM No. 3470; see also Witkin California Criminal Law, Fourth Edition § 67, [“[s]elf-defense may be a justification for acts that would otherwise be criminal.”]) Self-defense turns on the reasonable belief and conduct of the accused, not the nature of the harm or specific consequences. As further explained in the context of transferred intent, self-defense negates the element of criminal intent towards a perceived aggressor. (See People v. Mathews (1979) 91 C.A.3d 1018, 1024, 154 C.R. 628 [the lack of criminal intent toward the aggressor is transferred to the unintended victim]; People v. Levitt (1984) 156 C.A.3d 500, 507, 508 [unintentional killing of or injury to third person during attempted self-defense].)

Self defense is, thus, available for all charges in which the elements are met. (See, e.g., People v. King (1978) 22 Cal.3d 12 [right to self defense in 12021 charge, felon in possession]; People v. Kirk (1986) 192 Cal.App.3d Supp. 15, 19 [Self defense is an available defense to a charge of brandishing a weapon under Penal Code section 417(a)(2).]); People v. Adams (2009) 176 C.A.4th 946, 954, 98 C.R.3d 383 [right of self-defense applies in context of citizen’s arrest and may be shown where person acts in reasonable apprehension of imminent danger; person need not “wait for first punch” before defending self];  CRLDEF § 132, Criminal Law Defenses, Justification Defenses [A defendant may assert self-defense as an affirmative defense to crimes requiring intent, knowledge, or willfulness].)  Additionally, the right of self-defense is available even when the threat is not from another person. (People v. Lee (2005) 131 Cal.App.4th 1413 (2005) [“It serves no public policy, and is neither logical nor fair, to deprive appellant of the defense of self-defense because the threat of imminent harm came from a dog and not a person.”].) 

Although the undersigned counsel is not aware of any cases specifically involving the charge of vandalism here in California, as this is fundamentally a common law right, decisions in other jurisdictions are instructive. As the court explained in State v. Arth, (2004) 121 Wash.App. 205, in a case involving damage to a car, like that here, “the mere fact that the ‘use of force’ in a particular case does not actually reach the aggressor, but rather damages the weapon, is not relevant as long as the force is used toward the person of another. Because the statute suggests the use of force in this situation may be lawful, a defendant must be allowed to defend against criminal liability for the results of the force—whether it is damage to property or to a person.” (Id. at 210.) The Arth court further articulated the clear policy justification for allowing the defense when the damage is to property and not a person. The court explained that to rule otherwise “a person who defends himself could not assert self-defense if he used the least possible amount of force to prevent an attack by damaging the weapon rather than the person, while a person who used the greater amount of force to injure the person would have the defense available to him.” (Id. at 210.)

As that State of Washington decision in Arth was a case of first impression in that state, the court looked to an analogous Texas decision. (See Boget v. Texas, (2002) 74 S.W.3d 23 [citing JEROME HALL & GERHARD MUELLER, CASES AND READINGS ON CRIMINAL LAW AND PROCEDURE 663 (2d ed., Bobbs Merrill 1965) [arguing a person can use self-defense to justify other offenses-including offenses against property].) The Boget case is also similar to the facts here. In that case, the defendant was accused of shattering a car window with a flashlight. Testimony was presented that the truck was driving recklessly and posed a threat to the defendant. The court explained that, “[i]n Boget’s case, had his flashlight gone through the window and hit Palacios, he would be entitled to a charge of self-defense in an assault prosecution. It would be illogical to deny him the instruction simply because his force didn’t actually land on Palacios. The relevant inquiry is whether he directed his force against another.” This is indistinguishable from the facts here. . . .

Other states and federal courts that have examined the issue similarly find that self-defense is available for crimes involving property damage. (See, e.g.,  United States v. Young (5th Cir.1972) 464 F.2d 160, 164 n. 6 [explaining that “an intentional act of damage or destruction may be justified–for instance, by necessity or in self-defense. Such justification for the act of destruction would negate the criminal mens rea . . .”]; People v. Coahran (2019) 436 P.3d 617 (Colorado court remanded case involving kicking of a door for new trial where trial court refused self-defense instruction for felony mischief charge.]; D.M.L. v. State (2008) 976 So.2d 670, 673 [explaining that defendant “ was using force in self-defense against Cory when Cory swung the bat at him and that is when the damage to the truck occurred. The trial court erred [in concluding the defendant] could not assert a defense of self-defense in these circumstances.”]; Seibold v. State (Alaska Ct.App.1998) 959 P.2d 780, 781–82 [defendant charged with malicious mischief for destroying a handgun he took from a woman arguing with her husband was entitled to jury instructions on necessity]; People v. Grass (1984) 126 Ill.App.3d 540 [defendant charged with felony criminal damage to property asserted self-defense and self-defense instruction presented to the jury].)

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