Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 07F04352, 08F00553
NICHOLSON, J.
Defendant Teddy Lee Crawford stole more than $3,000 from Molly Lumpkins. When Molly and her friends went to defendant’s apartment to seek the return of the money, defendant assaulted them with a firearm. Convicted of grand theft, assault with a firearm, and possession of a firearm by a felon, and sentenced to state prison, defendant appeals.
He contends that (1) the trial court’s evidentiary rulings prevented him from presenting a defense; (2) the court erred by refusing to instruct the jury on defense of habitation; (3) punishment imposed for the crimes violated Penal Code section 654; and (4) the abstract of judgment incorrectly listed the term imposed for grand theft as running consecutive to the base term, instead of concurrent, as imposed. Only the last contention has merit. We therefore affirm the judgment and order a correction to the abstract of judgment.
FACTS
In January 2008, Molly Lumpkins had saved about $3,600 from her jobs at Pizza Hut and Wal-Mart in Elko, Nevada. She decided to go with three friends -- Jarrod Montelius (her boyfriend), Joseph Morris, and Anthony Graham -- snowboarding at Tahoe and to buy a car in Sacramento. Molly wanted to buy a car in Sacramento because she had heard that cars were less expensive in Sacramento than in Elko.
Molly Lumpkins and her friends are referred to consistently in the record and the briefing by their first names. We will do the same.
The friends traveled in Anthony’s car and stayed the night in Reno. They went snowboarding the next day. Molly did not have a snowboard, so she stole one and was arrested. She paid $500 of her money to bail herself out of jail.
The friends continued on to Sacramento the next day where they intended to meet with defendant, who had said that he knew someone that could sell Molly a car. Defendant was an acquaintance from prior trips to Sacramento. They drove to defendant’s apartment, near Madison Avenue, and contacted defendant at about 8:00 p.m. They went into defendant’s apartment and waited while he put on his shoes.
The group, including defendant, went in Anthony’s car to a nearby apartment complex. Molly, defendant, Jarrod, and Joseph got out of the car, and Anthony drove away to get medicine at a gas station. Defendant told Molly to count her money so that she would not have to take it out in front of anyone else. She complied, counting $3,160. Defendant grabbed the money from Molly’s hand and ran off. Jarrod and Joseph, and later Molly, followed defendant but were unable to catch him.
Molly, Jarrod, and Joseph walked around among the apartment buildings for a while, and realized that they were in front of defendant’s apartment. They went to the door, where Molly and Jarrod knocked on the door. Joseph beat on the door with his fist.
The door swung open, and defendant cocked and pointed a black handgun at their faces. Defendant screamed at them, “You need to get the fuck away from my house.” Defendant also told them: “You think you’re going to come in here, back up. Come in here and see what you get.” Joseph began to argue with defendant about the money, but Molly told Joseph to “shut up.” None of the three (Molly, Jarrod, and Joseph) threatened defendant or attempted to enter the apartment. Molly and Jarrod stood staring at defendant in disbelief, and Jarrod said, “What the fuck.”
Ryan Ellis and Crystal (defendant’s girlfriend) were also in the apartment. Ellis took the handgun from defendant, saying, “You don’t need that.” Defendant walked to the back of the apartment. Ellis pointed the gun at Molly and Jarrod and said, “You guys need to get the fuck away from here.” He then shut the door.
Molly, Jarrod, and Joseph walked away from the apartment, and Molly called 911 on her cell phone.
Molly and Jarrod denied that they had gone to defendant’s apartment to buy or use marijuana. Jarrod also denied that Anthony dropped off the group and left because he was on probation and did not want to be around marijuana.
Deputies from the Sacramento Sheriff’s Department responded to Molly’s 911 call. They heard voices inside the apartment. After they knocked, they heard the rustling of window blinds. A female opened the door. The deputies found Ellis in the apartment, but defendant was not there.
Defendant was arrested at his apartment the following night.
A search of the apartment revealed a loaded handgun in the master bedroom. Neither defendant’s nor Ellis’s prints were found on the gun.
The defense’s lone witness was David Ford, an investigator from the public defender’s office. Ford testified that Jarrod told him that he went to defendant’s apartment to hang out and smoke marijuana. Jarrod also said that Anthony left the group because he was on probation and did not want to be around marijuana. Ford did not ask Jarrod whether Jarrod’s sole purpose in going to defendant’s apartment was to buy marijuana.
PROCEDURE
By amended information, the district attorney charged defendant with three counts: count one, grand theft (Pen. Code, § 487, subd. (c)); count two, assault with a firearm (Pen. Code, § 245, subd. (a)(2)), with personal use of a firearm (Pen. Code, § 12022.5, subd. (a)); and count three, possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)).
The information also alleged that codefendant Ryan Ellis committed assault with a deadly weapon. Ellis was tried by the same jury as defendant and was convicted of the offense. His appeal is pending in case No. C059046.
A jury convicted defendant on all three counts and found true the personal use allegation.
The trial court sentenced defendant to a state prison term of seven years, calculated as follows: the middle term of three years for assault with a firearm (count two), with a consecutive four years for personal use of a firearm. The court added concurrent terms of two years each for grand theft (count one) and possession of a firearm by a felon (count three).
The trial court also found that defendant violated probation from an earlier case and sentenced him to a concurrent two years for that case.
DISCUSSION
I
Pattern of Sustained Objections
Defendant contends that the trial court’s evidentiary rulings prevented him from presenting a defense and challenging the credibility of the prosecution’s witnesses. He claims this violated his constitutional right to confrontation. Generally, he claims that the rulings affected his ability to present evidence that Molly and her friends traveled to Sacramento to purchase drugs. He also makes several specific claims that evidentiary rulings prevented him from presenting a defense in ways other than challenging the credibility of the prosecution’s witnesses. We conclude the rulings (1) had no significant affect on his ability to challenge the credibility of the defense witnesses and (2) did not prevent him from presenting a defense by other means.
A. Law Concerning Ability to Present Defense
A defendant has a fundamental constitutional right to present a defense, including the right to confront and cross-examine the witnesses who testify against him. (People v. Burrell-Hart (1987) 192 Cal.App.3d 593, 599.) “[T]he right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal.” (Pointer v. Texas (1965) 380 U.S. 400, 405 [13 L.Ed.2d 923, 927].) Cross-examination remains “‘the “greatest legal engine ever invented for the discovery of the truth.”’ [Citation.]” (People v. Brock (1985) 38 Cal.3d 180, 197.)
Neither the confrontation clause nor state law, however, affords the right to unlimited cross-examination. (People v. Sully (1991) 53 Cal.3d 1195, 1219-1220.) Trial courts retain wide latitude to impose reasonable limits on cross-examination without violating the confrontation clause to prevent prejudice and confusion of the issues or to curtail interrogation that is repetitive or marginally relevant. (People v. Morse (1992) 2 Cal.App.4th 620, 642.) The ordinary rules of evidence, including the exercise of the court’s discretion pursuant to Evidence Code section 352, do not compromise a defendant’s right to a fair trial or to present his defense. (Id. at pp. 641-642.)
“[A] criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed... ‘to expose to the jury the facts from which jurors... could appropriately draw inferences relating to the reliability of the witness.’” (Delaware v. Van Arsdall (1986) 475 U.S. 673, 680 [89 L.Ed.2d 674, 684], quoting Davis v. Alaska (1974) 415 U.S. 308, 318 [39 L.Ed.2d 347, 355].)
When the cross-examination prohibited by the trial court was intended to attack the witness’s credibility, a defendant must establish, on appeal, that the prohibited cross-examination would have produced a “‘“significantly different impression”’” of the witness’s credibility. (People v. Hillhouse (2002) 27 Cal.4th 469, 494.)
B. Analysis
1. Credibility of Prosecution Witnesses
The trial court’s evidentiary rulings with respect to defendant’s attempt to establish that Molly and her friends travelled to Sacramento to purchase drugs, instead of a car, did not significantly alter the jury’s impression of the credibility of the prosecution witnesses. Therefore, the trial court did not violate defendant’s confrontation rights with its evidentiary rulings.
Defendant argues: “In the course of the transaction, in which [Molly] was a willing participant, third parties took the money from [defendant] without completing the transaction and providing drugs.” However, defendant makes no claim that he could have introduced evidence that “third parties” were involved in the incident. Therefore, we will disregard his speculative assertion.
The trial court sustained objections to questions on the following topics: whether prosecution witnesses did drugs on the night of the crimes; whether Molly looked into buying a car in Reno or Salt Lake City; whether Molly looked for a car in Winnemucca; whether an occupant of defendant’s apartment was arrested for marijuana possession; and whether Jarrod brought money to Sacramento to buy marijuana.
“Q [Counsel for defendant] And you guys hung out together with this group of friends the first time?
“Q [Counsel for defendant] So were you here to purchase a car in Sacramento because you thought cars would be cheaper here?
“Q [Counsel for codefendant Ellis]: Is Elko, Nevada in eastern Nevada?
“Q [Counsel for defendant] Other than [codefendant] Ellis, was there anybody else that you detained that evening?
Q [Counsel for defendant] Did you ever ask [Jarrod] whether or not he had brought money to Teddy’s house to purchase marijuana?
Concerning the credibility of the witnesses, defendant asserts, on appeal, that his strategy was to introduce evidence that Molly and her friends went to defendant’s apartment to purchase drugs, thereby calling into question their credibility. However, the evidence defendant sought to introduce was only tangentially related to credibility issues.
Whether Molly looked for a car in Winnemucca, Salt Lake City, or Reno had little relevance on the issue of whether she was in Sacramento to buy a car. Therefore, the questions about her car shopping were marginally relevant.
Also, whether Molly and her friends intended to buy drugs was not relevant to whether defendant took the money, and was only marginally relevant on the issue of the prosecution witnesses’ credibility. Furthermore, Molly was thoroughly impeached with the evidence that she stole a snowboard at Tahoe.
Accordingly, because the evidence excluded was irrelevant on the issue of whether defendant committed the elements of the crimes and only marginally relevant to the witness’s credibility, defendant’s contention that the trial court violated his confrontation rights is without merit.
2. Other Defense Strategies
Likewise, the trial court did not violate defendant’s confrontation rights by excluding evidence which defendant claims was relevant to his defense case on issues other than the credibility of the prosecution witnesses.
In his argument concerning the purported effect of the evidentiary rulings on defendant’s strategy of challenging the credibility of the witnesses, defendant intersperses three other arguments concerning the effect of the evidentiary rulings: (a) the exclusion of evidence concerning drug use by a visitor in defendant’s apartment prevented defendant from citing that circumstance with respect to his flight when the police arrived; (b) the exclusion of statements made at the apartment prevented defendant from proving his defense of habitation theory; and (c) the exclusion of a statement by Ellis prevented defendant from proving that his possession of the gun was transitory. None of these arguments has merit.
a. Flight as Consciousness of Guilt
As noted above, defendant attempted to elicit evidence that a person in defendant’s apartment at the time the police first arrived there was in possession of marijuana. He argued that the evidence would support an inference that defendant fled the apartment at that time because of the presence of marijuana in his apartment, not because he had a consciousness of guilt concerning the crimes committed against Molly and her friends. The trial court excluded the evidence under Evidence Code section 352. Defendant asserts that the testimony “would have provided evidence which undercut the inference of guilt that the prosecution was asking the jury to make from evidence of flight....” We conclude the trial court did not abuse its discretion under Evidence Code section 352, and that this evidentiary ruling based on evidence law did not violate defendant’s constitutional rights. (People v. Hovarter (2008) 44 Cal.4th 983, 1010 [routine application of state evidentiary law does not implicate constitutional rights].)
Evidence Code section 352 allows the trial court to “exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” Rulings made under this section are reviewed for an abuse of discretion. (People v. Harrison (2005) 35 Cal.4th 208, 230.)
Here, although evidence that someone else in the apartment was in possession of marijuana was arguably relevant to defendant’s reason for fleeing, such evidence, as noted by the trial court, could potentially confuse and mislead the jury because it was evidence of separate criminal wrongdoing in the apartment. Furthermore, the argument that defendant fled because there was marijuana in the apartment and not because of his interactions with Molly and her friends was weak, and it is unlikely that the jury would have credited defendant’s argument. Therefore, the trial court acted within the bounds of sound discretion when it excluded the evidence.
b. Defense of Habitation
Defendant asserts that two evidentiary rulings are relevant to this issue: first, he attempted to show that, when Ellis took the gun from him, Ellis said, “You don’t need that”; and second, he was prevented from questioning Molly concerning what was said by Jarrod and Joseph as they were banging on defendant’s door. Neither evidentiary ruling constituted prejudicial error.
During the cross-examination of both Molly and Jarrod, counsel for codefendant Ellis attempted to elicit testimony that, when Ellis took the gun away from defendant at the door of the apartment, Ellis said to defendant, “You don’t need that.” The prosecutor objected each time, and the trial court sustained the objections. Nonetheless, the trial court later changed its ruling and allowed evidence of the statement when it was solicited from an investigator who interviewed Jarrod.
For example:
Defendant claims the trial court erred by excluding this statement during the cross-examination of Molly and Jarrod because it could have been used by the jury in evaluating whether defendant was defending his habitation. He further claims that admitting the statement later did not cure the error because the jury asked for a readback of testimony from Molly and Jarrod concerning what happened when Ellis took the gun from defendant. These claims are unpersuasive because the statement “You don’t need that” was evidence given to the jury, and we cannot assume that the jury simply forgot about it because it was not included in the readback.
Defendant also claims that the trial court erred by excluding evidence of what Jarrod and Joseph said as they pounded on defendant’s door. The evidence was excluded on the prosecution’s objection that it was hearsay.
“Q [Counsel for defendant] And they were banging on the door and demanding entrance?
In his opening brief, defendant claims that the evidence was offered “to demonstrate its impact on [defendant’s] state of mind and the reasonableness of his response in protecting his home. [Citation.]” However, this purpose was not presented to the trial court. The prosecution made a hearsay objection, and the trial court sustained the objection because it appeared that counsel for defendant was attempting to elicit an out-of-court statement for the truth of the matter asserted. Defendant’s ability, on appeal, to propose a purpose other than eliciting the statement for the truth of the matter asserted, does not render the trial court’s ruling retroactively erroneous.
“‘“An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been, but was not, presented to the lower court by some appropriate method.... The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or waiver.... Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial.”’ [Citation.] ‘“The purpose of the general doctrine of waiver is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had....”’ [Citation.].” (People v. Saunders (1993) 5 Cal.4th 580, 590.)
Accordingly, because defendant offered no reason beyond hearsay for introducing the statements made by Jarrod and Joseph as they were pounding on the door, we need not consider whether exclusion was erroneous under other rationales.
c. Transitory Possession of Gun
Again citing the statement by Ellis to defendant when Ellis took the gun (“You don’t need that”), defendant claims that the statement was “relevant to the transitory nature of [defendant’s] possession of the gun and suggested that Ellis had a superior possessory interest in the gun, thus supporting the inference that [defendant] had taken custody of the weapon temporarily to protect his home.” (Fn. omitted.) As we noted above, the statement eventually was introduced into evidence, thus eliminating any possible error in initially excluding it.
II
Instruction of Defense of Habitation
Defendant requested the trial court to give the jury an instruction concerning defense of habitation as a defense to the charges of assault with a firearm and possession of a firearm by a felon. The trial court refused because there was insufficient evidence to support the instruction. On appeal, defendant contends that the trial court erred. We conclude that the contention is without merit.
Defendant requested the trial court to give CALCRIM No. 3475, which states:
A. Legal Background
Trial courts, with or without a request by the defense, must instruct on general principles of law closely and openly connected with the facts. (People v. Ervin (2000) 22 Cal.4th 48, 90.) The duty to instruct on defenses arises “‘only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.’” (People v. Barton (1995) 12 Cal.4th 186, 195.) There is no obligation to instruct a jury on a defense if the evidence supporting the defense is minimal or insubstantial. (People v. Barnett (1998) 17 Cal.4th 1044, 1145.) Evidence is substantial when, if believed by the trier of fact, it would be sufficient to raise a reasonable doubt about the defendant’s guilt. (People v. Salas (2006) 37 Cal.4th 967, 982.)
“Defense of habitation applies where the defendant uses reasonable force to exclude someone he or she reasonably believes is trespassing in, or about to trespass in, his or her home.” (People v. Curtis (1994) 30 Cal.App.4th 1337, 1360.)
B. Analysis
The question raised by defendant’s request for an instruction on defense of habitation is whether the jury could have found that defendant’s conduct constituted “reasonable force to exclude someone he... reasonably believe[d] [was]... about to trespass in [his] home.” (People v. Curtis, supra, 30 Cal.App.4th at p. 1360.) The answer is no. No reasonable jury would have found that defendant’s conduct was reasonable. Molly, Jarrod, and Joseph knocked, even pounded, on the door. However, they had no weapons. They did not get physical with defendant in any way. Defendant could have simply not opened the door, or he could have told them to go away without pointing a gun in their faces. Defendant’s response did not constitute reasonable force, under the circumstances.
Accordingly, the trial court properly denied the request to give the defense of habitation instruction.
III
Multiple Punishment
Defendant contends that the trial court erred by not staying punishment for counts one and three pursuant to Penal Code section 654. The contention is without merit because there was substantial evidence that defendant harbored separate intents and objectives in committing the crimes.
A. Legal Background
“Penal Code section 654 prohibits punishment for two crimes arising from a single indivisible course of conduct. [Citation.] If all of the crimes were merely incidental to, or were the means of accomplishing or facilitating one objective, a defendant may be punished only once. [Citation.] If, however, a defendant had several independent criminal objectives, he may be punished for each crime committed in pursuit of each objective, even though the crimes shared common acts or were parts of an otherwise indivisible course of conduct. [Citation.] The defendant’s intent and objective are factual questions for the trial court, and we will uphold its ruling on these matters if it is supported by substantial evidence. [Citation.]” (People v. Perry (2007) 154 Cal.App.4th 1521, 1525.)
B. Analysis
The trial court chose count two (assault with a firearm) as the base term. It then sentenced defendant concurrently for count one (grand theft) and count three (possession of a firearm by a felon).
Defendant asserts that the trial court could not impose a term for count one (grand theft) because it was committed for the same objective as count two (assault with a firearm). He argues:
“In the instant case, there was no evidence of an independent criminal objective. According to the prosecution’s version of the events, the act of pointing the weapon was incident [sic] to the objective of retaining possession of the money taken in the theft. [Record citation.] [Defendant’s] acts might be deemed those to repel the attempt to get the money back, but they were not an active forward motion that would indicate an independent objective to assault separate from the theft. Thus the assault was incidental to, rather than independent of the theft.”
Contrary to defendant’s statement, we do not view the evidence in the light of the prosecution’s theory. We view the record to determine whether there was substantial evidence upon which the court could rely to find that the defendant had independent criminal objectives in committing the grand theft and the assault with a firearm. (People v. Perry, supra, 154 Cal.App.4th at p. 1525.) Posed in this manner, the question is rather simple. The two crimes were substantially divided in time. Molly and her friends showed up at the apartment well after defendant took the money. Furthermore, defendant may not have even had the money when he committed the assault. Therefore, there was substantial evidence supporting the trial court’s decision that the two crimes were committed with separate objectives.
Defendant asserts that count two (assault with a firearm) and count three (possession of a firearm by a felon) were for “precisely the same conduct.” Not necessarily. Defendant pointed a handgun at Molly, Jarrod, and Joseph. That conduct would support a conviction for both assault with a firearm and possession of a firearm by a felon. However, a search of the apartment also revealed a handgun, which generally fit the description provided by the victims. Under these circumstances, the trial court could conclude that defendant possessed the firearm before and after the assault. While there was some evidence that the handgun belonged to Ellis (because Ellis took the gun from defendant), there was substantial evidence upon which the trial court could rely to conclude that defendant’s possession of the firearm preceded his assault and that he retained possession of the handgun in his apartment after the assault. (See People v. Jones (2002) 103 Cal.App.4th 1139, 1143-1144.) Accordingly, because there was substantial evidence that the two crimes were committed at separate times and with separate intents and objectives, the trial court did not err in imposing and not staying the sentence for count three.
IV
Correction of Abstract of Judgment
As recounted above, the trial court sentenced defendant to a concurrent term of two years for count one (grand theft). However, the abstract of judgment states that defendant was sentenced to a consecutive term of one-third the middle term on count one. Defendant asserts, and the Attorney General agrees, that we must order a correction of the abstract of judgment. We agree that the abstract of judgment must be corrected to reflect the trial court’s imposition of a concurrent term of two years on count one.
DISPOSITION
The judgment is affirmed. The superior court is directed to prepare a corrected abstract of judgment consistent with the judgment and to send a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: SIMS, Acting P. J. CANTIL-SAKAUYE, J.
“A [Molly] Yes.
“Q You guys do drugs that night?
“[Prosecutor]: Objection irrelevant and improper impeachment.
“THE COURT: Yes. Objection sustained.”
“A [Molly] Yes.
“Q Now there’s no car dealerships in Elko?
“A Yes, there is.
“Q Now, I don’t know how many of the jurors are familiar with but I’m not very familiar with Nevada.
“What cities is Nevada close -- is Elko, Nevada close to?
“A None. It’s three hours from any where you go.
“Q Three hours to what’s the closest city?
“A Reno. Then there’s Salt Lake.
“Q Did you look into buying a car either in Reno or Salt Lake?
“[Prosecutor]: Objection irrelevant.
“THE COURT: Yes, the objection sustained.”
“A [Molly] Yeah.
“Q It’s approximately 420 miles from Sacramento?
“A I think so.
“Q And when you came to Reno did you drive on Interstate 80?
“A Yes.
“Q Did you drive through [Winnemucca]?
“A Yes.
“Q Did you look at any cars in [Winnemucca]?
“A [Winnemucca] is small, too.
“Q Did you look at any cars there?
“A No.
“[Prosecutor]: Objection relevance.
“THE COURT: Objection sustained.
“Disregard the question and answer.”
“A [Deputy Eugene Hardy] Yes.
“[Prosecutor]: Objection, irrelevant.
“THE COURT: Excuse me. Other than what? I missed the question.
“[Counsel for defendant]: Other than Mr. Ellis was there anybody else you detained that evening?
“THE COURT: Objection sustained.”
[Prosecutor]: Objection.
THE COURT: The objection is sustained.”
“Q [Counsel for codefendant Ellis] Okay. And at some point you observed [Ellis] take the firearm away from [defendant]; correct?
“A [Molly] Correct.
“Q Did you hear when he’s taking it away [Ellis] said you don’t need that as he took the gun away?
“A Yes.
“[Prosecutor]: Objection hearsay.
“THE COURT: Objection sustained.”
“A [Molly] No.
“Q They wanted -- were demanding to see [defendant]?
“A No.
“Q Just pounding on the door not asking for anything?
“A Well
“[Prosecutor]: Objection, a couple of things going on here. One is hearsay as to what other people said. Misstates the evidence only one person was making.
“THE COURT: Why don’t you ask here a question rather than summarize it. Why don’t you ask her what she did.
“[Prosecutor]: I’ll object as to form of the question.
“Q (By [counsel for defendant]) What was Jarrod doing?
“A Knocking on the door.
“Q Was he saying anything when knocking on the door?
“[Prosecutor]: Objection hearsay.
“THE COURT: Objection sustained.
“Q (By [counsel for defendant]) Were you saying anything when you were knocking on the door?
“A No.”
“The (owner/lawful occupant) of a (home/property) may request that a trespasser leave the (home/property). 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.
“Reasonable force means the amount of force that a reasonable person in the same situation would believe is necessary to make the trespasser leave.
“[If the trespasser resists, the (owner/lawful occupant) may increase the amount of force he or she uses in proportion to the force used by the trespasser and the threat the trespasser poses to the property.]
“When deciding whether the defendant used reasonable force, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant's beliefs were reasonable, the danger does not need to have actually existed.
“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 _________________ .” (Original italics.)