Right to Defend Property

The right to defend one’s property is fundamental to our way of life in California.  This right means that the owner or possessor of personal or real property may use reasonable force to protect that property from imminent harm.  Additionally, an owner or lawful occupant of a home or piece of real property may use reasonable force to eject a trespasser from that home or property.

When Substantial Evidence supports a theory of Defense to Property, the burden is on the government to show beyond a reasonable doubt that the person used more force than was necessary to protect the property.

• Ejecting a trespasser from a home or apartment
• Taking back stolen property
• Fighting back when mugged or robbed.

• When the judge determines that there is substantial evidence to support this defense, but that this defense is inconsistent with defendant’s theory at trial, the court should ascertain whether defendant wants the jury to be instructed as to the defense.  (People v. Gonzalez (1999) 74 Cal.App.4th 382, 389-390.)
• Arguing this defense at trial may negate a person’s claim of Imperfect Self Defense (People v. Waitie (2002) 100 Cal.App.4th 866, 878.)

The main consideration for the jury is whether the person’s use of force was reasonable under the circumstances.  Reasonable Force means the amount of force that a reasonable person in the same situation would believe is necessary to defend the property from imminent harm or make the trespasser leave.

In the case of removing a trespasser, if the trespasser resists, the owner or lawful occupant may increase the amount of force he or she uses in proportion to the force used by the trespasser and the treat the trespasser poses to the property.

If you or a loved one are accused of a San Diego Criminal Offense and the Crime was committed in Defense of Property, give our Self Defense Attorneys a call for a Free Analysis by calling 619-708-2073 or emailing us at attorneys@hullingerfirm.com.