In California, criminal offenses are set forth, in large measure, in the California Penal Code. When confronted with a threatening situation, a person is entitled to take reasonable actions to defend themselves—the right to “self-defense.” Virtually any use of force, whether displaying or discharging a firearm, showing a knife, or taking some other action that potentially threatens to cause harm is subject to the “right to self-defense.”
A couple of things to bear in mind: even if you are entirely in the right, your actions are going to be judged by law enforcement, second-guessed, and sometimes criminal charges may be brought against you. So, the best course is NOT to use force or threaten to do so, unless it’s both necessary and the use of force is reasonable under all the circumstances.
What the Law Says
A person who is charged with a criminal offense under the Penal Code may be able to assert an affirmative defense, such as self-defense, to specific charges. Under California law, homicide (i.e., the killing of another) is justifiable and not unlawful when the person who does the killing actually and reasonably believes:
- That there is imminent danger that the other person will either kill them or cause great bodily injury to that person or another; and
- That it is necessary under the circumstances for them to use deadly force for the purpose of avoiding death or great bodily injury to them or another.
The law is set out in California Criminal Jury Instruction 5.12:
“A bare fear of death or great bodily injury is not sufficient to justify a homicide. To justify taking the life of another in self-defense, the circumstances must be such as would excite the fears of a reasonable person placed in a similar position, and the party killing must act under the influence of those fears alone. The danger must be apparent, present, immediate and instantly dealt with, or must so appear at the time to the slayer as a reasonable person, and the killing must be done under a well-founded belief that it is necessary to save one’s self from death or great bodily harm.”
Generally, if the facts are sufficient to justify the self-defense instruction, the State must disprove self-defense, or another affirmative defense applied. However, at least some evidence of the affirmative defense must typically be present to be raised and the jury to be instructed at trial. In other words, California law permits a person to raise an affirmative defense at trial against allegations of conduct that would otherwise be unlawful, so long as sufficient evidence in support of that defense has been presented.
Self-defense is one affirmative defense a person may raise, but only if there is some evidence supporting they acted in lawful self-defense, defense of others, or defense of property. Some of the typical charges a person may assert self-defense against include, Assault, Assault with a Deadly Weapon, Battery, Brandishing a Firearm, and Murder.
Generally, three separate legal concepts govern the laws of self-defense or defense of others in California. The first, and by far the most common, involves the use of force by a person against an attacker. This is general self-defense and should be distinguished from an attacker who is also an intruder into your home, which is the third legal concept discussed in more detail below.
Generally, the Right to Self-Defense Requires Three Things:
- The defendant reasonably believed that he or she (or someone else) was in imminent danger of suffering bodily injury;
- The defendant reasonably believed that the immediate use of force was necessary to defend against that danger; and
- The defendant used no more force than was reasonably necessary to defend against that danger—what we call the proportionality requirement. For example, you can’t just shoot someone who throws a snowball at you.
In other words, the threat to your life must be real and present at that moment and, as a result, required the immediate use of force in defense. Further, the use of force to repel such threat must be proportional to the nature of the threat, meaning you can’t use more force than reasonably necessary.
The term “reasonably believed” does not require the person’s belief to be correct. As such, a belief that he or she was threatened may be reasonable, even if they relied on information that turned out not to be true—like a police officer shooting a suspect who he reasonably believed was holding a gun, even if it turned out to be a cell phone. However, the person must actually and reasonably have believed that the information was true.
If this affirmative defense is raised, or if a judge determines sufficient evidence has been presented necessitating the need to instruct the jury as to self-defense, the prosecutor then has the burden of proving beyond a reasonable doubt that the defendant did not act in lawful self-defense or defense of others. If the prosecutor fails to meet this burden, the jury must find the defendant not guilty of the crime(s) charged.
Stand Your Ground
The second legal concept related to self-defense is called “Stand Your Ground.” This concept can apply both in or outside the home and occurs when a person is challenged with a deadly threat, but has the option of retreating from the danger (i.e., going out the backdoor or just fleeing). In California, a person is not required to retreat from the threat. A person is entitled to stand their ground, defend themselves and, if reasonably necessary, to pursue an assailant until the danger (of death or bodily injury) has passed. This is so even if the person could retreat to safety.