Self Defense As A Defense To Criminal Charges

If you are involved in a violent confrontation that injures or kills an attacker or intruder, you may be acquitted if you can prove that under the circumstances your actions were a reasonable response to an honest and credible belief that you were in imminent physical danger of serious injury, death or an offensive touching (battery).

Self-defense needs to be demonstrated by a defendant at trial or by a showing of credible evidence before trial to a prosecutor who is deciding whether to press serious charges. If the evidence supports the defense at trial, then the prosecution has the burden of disproving it by the standard of beyond a reasonable doubt. Further, a judge has a duty to instruct the jury on his or her own if the defendant does not request it.

Requirements For Self Defense To Be An Effective Defense

There are certain characteristics of the defense:

  1. You had a reasonable belief that you were in imminent danger of being injured, killed or touched in an offensive or unlawful way.
  2. You had a reasonable belief that you needed to use force to prevent the danger
  3. The force used was no more than necessary to protect yourself from an attack

The various characteristics are discussed below:

Prove Imminent Danger

The danger that you are facing must be immediate. If the alleged attacker made a future threat of harm, you have no right to preempt the attack by injuring or killing the person, regardless if the threat was to kill you at some future time. There may be an exception in the case of domestic abuse under the “battered woman’s” syndrome.

For instance, if someone told you that he would kill you if you ever stepped foot in this town again, you cannot then shoot that person out of fear that he might kill you or injure you at some future date since the threat, though credible, is not immediate.

Threat Of Death, Serious Injury Or An Offensive Touching

Self-defense can be used as a defense against homicide or manslaughter, great bodily injury or assault of any kind. If used in a murder case, the threat must have been against a “forcible and atrocious crime.” These include:

  • Robbery
  • Murder
  • Rape
  • Mayhem
  • A knife attack
  • An attack that would likely cause great bodily injury

You may not kill someone or cause great bodily injury to someone who only touched you in an offensive way since you would be using unreasonable force.

A Reasonable Belief In A Threat Of Imminent Harm

A key element is your honest belief that you were in imminent harm. The belief must be credible or reasonable, even if incorrect. This is a determination for the trier-of-fact who must use an objective standard in making the determination. In other words, would a reasonable person under the same or similar set of circumstances have believed he/she was in imminent danger?

A reasonable person is not someone with a mental defect or psychological issue.

An exception to this rule is the “battered woman’s syndrome.” In these cases, women subjected to months or years of beatings and threats of death or severe physical injury from spouses or partners may use self-defense if they kill the person under some circumstances. The woman has to show that she had been beaten badly by her partner, perhaps threatened as well, over a period of time and that she had a reasonable belief that she was in imminent danger of death or great bodily injury moments before she delivered the fatal maneuver or act.

If her belief that she was in immediate or imminent danger was honest but incorrect, then a charge of murder might be reduced to manslaughter based on “imperfect self-defense.” An example is a woman repeatedly beaten by her husband over the years. One night, he beats her severely and threatens to kill her in the morning and then goes to bed. During the night, the woman uses a firearm and fatally shoots her husband. Even though the threat of death or great bodily harm had passed ( the severe beating) or was now in the future ( threat to kill her in the morning), she could argue she had a well-founded but erroneous belief that she was in imminent peril.

As Much Force As Necessary

You can only use that degree of force necessary to protect yourself. If you are punched, you cannot use a firearm to shoot the person or stab him with a knife or other sharp object. If you are attacked with a knife or held up by a weapon in a robbery, you can use lethal force in most instances if you had a reasonable belief your life was in imminent danger. Robbery qualifies as a “forcible and atrocious” offense.

What is California’s “Castle Doctrine?”

The “Castle Doctrine” is an embodiment of the aphorism“a man’s house is his castle” It is found in Penal Code 198.5 and allows a person to use deadly force within his own home if he has a reasonable fear of imminent peril or great bodily harm. This is similar to the “stand your ground” laws found in other states.

Home invasions are not common but do occur. When they do and you have used deadly force, you must show the following:

  • You had reason to believe the person was entering your home unlawfully
  • The intruder was not acting lawfully
  • You had a reasonable fear of death or injury to you, a family member or other household member
  • Neither you nor any of the household members had provoked the intruder

This doctrine does not extend to your vehicle or place of work. You can still use deadly force in those instances if the other elements of self-defense are present.

CalCrim 505 & 506 & Standing Your Ground

Self-defense in a murder case is also referred to as “justifiable homicide.” Although not formally found in the criminal code, CalCrim 505 and 506 are jury instructions that allow juries to acquit you if you were justified in causing the fatality.

CalCrim 505 reads as follows:

A defendant is not required to retreat. He or she is entitled to stand his or her ground and defend himself or herself and, if reasonably necessary, to pursue an assailant until the danger of [death/great bodily injury/forcible and atrocious crime] has passed. This is so even if safety could have been achieved by retreating

CalCrim 506 is a jury instruction on the “Castle Doctrine” discussed above. It reads:

1. The defendant reasonably believed that (he/she) was defending a home against the assailant, who (intended to or tried to commit a forcible or atrocious crime / [or] violently [or] riotously,]/ [or] tumultuously] tried to enter that home intending to commit an act of violence against someone inside;

2. The defendant reasonably believed that the danger was imminent;

3. The defendant reasonably believed that the use of deadly force was necessary to defend against the danger,

AND

4. The defendant used no more force than was reasonably necessary to defend against the danger

Under state law, you are permitted to chase an assailant who is fleeing from you if you think it will prevent a further attack on you. It may help your defense if the person fleeing is armed or you had a reasonable belief he or she was armed.

As part of this defense, you cannot have been the aggressor or person who initiated the confrontation though there are exceptions to this. You also have to have a reasonable belief that the threat to you was imminent and that deadly force was necessary. The force you did use must also have been just enough to defend yourself. If the assailant was wounded by your firearm and incapacitated, you cannot keep shooting the person until he or she is dead. Again, you may have been mistaken in believing the person was armed or that you were in mortal danger so long as a reasonable person under similar circumstances could have held that belief.

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Special Circumstances

Self-Defense And The Initial Aggressor

If you were the initial aggressor, then under some circumstances you can use self-defense as a defense should you have to kill or cause serious bodily injury to the other person. This defense is found under Penal Code 3471 and states that:

  • “(He/She) actually and in good faith tries to stop fighting,
  • And you indicated in words or conduct to your opponent in a way that a reasonable person would understand that (he/she) wants to stop fighting and that (he/she) has stopped fighting,
  • And (he/she) gives (his/her) opponent a chance to stop fighting. If a person meets these requirements, (he/she) then has a right to self-defense if the opponent continues to fight.”

A similar situation is where you initiated the aggression but with non-deadly force such as a punch. In response, the other person produced a knife and lunged at you. You would be justified in using deadly force to protect yourself.

Imperfect Self-defense

What if you did believe that you or someone else was in imminent danger of death or great bodily injury but your belief, though genuine, was not reasonable or did not fit the objective standard of what a reasonable person would have believed under the circumstances?

Although this is not a defense, it can lead to a reduction in a charge of homicide under Penal Code 187 to Penal Code 192 or involuntary manslaughter. This is applicable when:

  • You actually believed that you or someone else was in imminent danger of death or great bodily injury
  • And, or, you had an honest belief that deadly force was necessary to defend yourself or the other person
  • And one or both of these beliefs was not reasonable

The Difference Between Mutual Combat And Self-Defense

Under Penal Code 3471, mutual combat is a fight begun or continued by mutual agreement. The agreement may be implied or expressly stated and must occur before a claim of self-defense may be asserted.

If engaged in true mutual combat, it is a defense to battery because you both agreed. If you fight in a public place, you could both be charged with disorderly conduct or fighting in a public place. If you seriously injure someone, it is within the discretion of the prosecution to charge you with battery but it depends on the facts and circumstances. If you were both fist fighting and a punch caused your opponent to suffer a serious concussion or to die, you risk a manslaughter charge though you may not be charged at all since there was mutual consent.

Self-defense may be raised in a case of mutual combat if one of the participants tries to stop fighting and clearly indicates this to the other participant. You may do this by stating that you no longer wish to fight and put your hands down or by waving your hands to your opponent and gesturing that you have had enough and wish to stop. If your opponent disagrees and attacks you, then you may use as much force as necessary to repel the attack or defend yourself. You may not use deadly force unless you have a reasonable belief you are in imminent danger of death or great bodily injury and deadly force was necessary to defend yourself.

In other words, if you had been fist fighting in a mutual combat scenario but now your opponent pulls out a knife or puts you in a strangle hold where you honestly believe you are in imminent peril of death, you can lawfully respond by using deadly force.

Frequently Asked Questions About Self-Defense

Is it against the law to kill in self-defense?

No it is not, but your conduct must be within the guidelines of what constitutes self-defense under the set of circumstances leading to the fatality. You must have reasonably believed you were in imminent danger of death or great bodily injury and you used no more force than necessary to defend yourself. If the attacker was engaged in a “forcible or ferocious crime’ such as rape or robbery or was otherwise armed with a deadly weapon and was attacking you, then you can use deadly force to defend yourself.

When can you claim self-defense?

Self-defense may be claimed under limited circumstances. You can assert it if: 1) you had a reasonable belief that you were in imminent danger of being injured, killed or touched in an offensive or unlawful way; 2) you had a reasonable belief that you needed to use force to prevent the danger; and 3) the force used was no more than necessary to protect yourself from an attack.

If you are in your home and a home invasion or burglary is in progress, you can use deadly force only if you had a reasonable belief the person was entering your house unlawfully and with no lawful purpose and you had a reasonable fear of death or injury to yourself, family or other household member. You also must not have provoked the intruder in any way.

Is it illegal to carry a knife?

It depends on the knife as some are not legal to carry at all. You may carry a dirk or dagger if displayed openly in a sheath suspended from your waist. This includes chef’s knives and even ice picks. A folding or pocket knife may be concealed if in a folded condition. If open, it has to be carried in a sheaf from your waist. Switchblades are not legal to carry in California.

What is defense of others?

Defense of others is similar to self-defense regarding your own safety or well-being. So, if you reasonably believed that another person was in imminent danger of death, great bodily harm or an offensive touching and you reasonably believed you needed force to protect them, you may use no more force than necessary to defend that person.

What is defense of property?

You can use self-defense if you injured someone while defending your real or personal property, usually from a trespasser who is threatening to steal or damage your property. As in defending your own self from harm, you must have:

  1. a reasonable belief your property was in imminent danger,
  2. and you used only reasonable force to defend your property

For example, if someone was defacing your vehicle, you can use reasonable force to prevent them from inflicting further harm but not deadly force unless they threatened you with a firearm or other deadly weapon and you believed you were in immediate danger of death or serious bodily injury.

Defense of property is separate from the “castle doctrine” where your home is invaded by intruders and you have a reasonable belief that you or a family or household member is in immediate danger or death or serious bodily injury.

If someone is trespassing on your property, you must first ask the person to leave. If you reasonably believe the trespasser poses a threat to the property or to anyone occupying it, then you may use as much force as reasonably necessary to remove them.

Can I still claim self-defense if I was drunk?

It depends on whether your circumstances still fit within the characteristics of a self-defense claim. You must have had a reasonable belief that you were in imminent danger of death, bodily injury or an offensive touching and that you needed to use force to defend yourself. A reasonable person standard is used, not a reasonably intoxicated person, especially if you became drunk voluntarily. If you happened to use more force than necessary to repel an attack or to defend yourself,  intoxication is not a defense. It may be if you were involuntarily intoxicated from a drug someone gave you without your knowledge. Otherwise, if a reasonable person could not have believed that you were facing an imminent threat or that force was necessary to defend yourself, then self-defense is not available.

Is it self-defense if I was attacked and used a gun to shoot the aggressor?

This depends on whether the attacker was armed or was just lunging at you unarmed. If unarmed, you may be considered to be using more force than necessary to repel the attack or to defend yourself. However, if the person was trying to kill or cause great bodily injury to you by choking you or banging your head against pavement, then you could assert that you had a reasonable belief that you were in imminent danger of death or great bodily harm and were justified in using deadly force.

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