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California’s “Stand Your Ground” Rule Clarified

Posted by Neil Shouse | Nov 11, 2013 | 0 Comments

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Do California gun laws permit you to “stand your ground”? In the wake of a Florida jury's acquittal of George Zimmerman, even the experts seem confused.

Zimmerman was accused of second degree murder in the shooting of teenager Trayvon Martin. His acquittal has raised concerns about so-called “stand your ground” laws.

“Stand your ground” laws allow people to use force against another rather than retreat. In California, this right has never been set forth in a statute. But it has long been recognized by California courts.

The California “stand your ground” rule is set forth in California Criminal Jury Instruction 3470. That instruction is titled “Right to Self-Defense or Defense of Another (Non-Homicide).” It sets forth the three conditions for the rule's application:

  • You reasonably believe that you or someone else is in imminent danger of suffering bodily injury or of being touched unlawfully;
  • You reasonably believe that the immediate use of force is necessary to defend against that danger; and
  • You use no more force than is reasonably necessary to defend against that danger.

It is not enough that you believe you might suffer harm in the future. Even a belief in great future harm is insufficient. You must believe there is imminent danger of bodily injury or death or unlawful touching.

In addition, your belief must be reasonable and you must act because of that belief. Ultimately, you don't have to be right about the danger, as long as your belief was reasonable. But you may only use the amount of force that a reasonable person would believe is necessary in the same situation. If you use more, you are not acting in lawful self-defense or defense of another.

If your belief in the danger of imminent harm is reasonable, you are not required to retreat. You may “stand your ground” and defend yourself… and, if reasonably necessary… pursue an assailant until the danger has passed. This is true even if you could have achieved safety by retreating.

A case from 1978 — People v. King 22 Cal.3d 12 – seemed to suggest that convicted felons who carry firearms don't have the right to stand their ground. Convicted felons are prohibited from possessing firearms under California's “felon with a firearm” law, Penal Code 29800 PC. (At the time of the King decision, that law was set forth in Penal Code 12021 PC).

In King the court said:

“As in all cases in which deadly force is used or threatened in self-defense, however, the use of the firearm must be reasonable under the circumstances and may be resorted to only if no other alternative means of avoiding the danger are available.   In the case of a felon defending himself alone, such alternatives may include retreat where other persons would not be required to do so.”

However, a more recent case has limited this ruling to cases in which a defendant is actually charged with violating the “felon with a firearm” statute. That case is People v. Rhodes (2005) 129 Cal.App.4th 1339. In this later case, the defendant was charged with attempted manslaughter and drive-by shooting. He was not, however, charged with being a felon with a firearm.

In Rhodes, the court said:

“[A]lthough [defendant] was a convicted felon, he had the right to defend himself, stand his ground, and use the amount of force reasonable under the circumstances.”

Of course, a convicted felon in illegal possession of a gun will not know at the time of standing his or her ground what crime he or she may be charged with later. People illegally carrying a firearm might do well, therefore, to choose retreat over standing their ground.

But for everyone else, retreat is not the only viable option when faced with the reasonable belief of imminent harm. In California, it is legal to “stand your ground.” (Charges in which "stand your ground" does not apply may still be resolved favorably for the defendant. Refer to our article, "Plea bargains in California criminal defense case.")

About the Author

Neil Shouse

Southern California DUI Defense attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT).

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