Under California self-defense laws, you generally have the right to “stand your ground” and defend yourself and others without retreating. No state law statute authorizes this right that there is no duty to retreat. Instead, case law and jury instructions recognize the right of a person to use force in self-defense without first trying to escape or run away (stand your ground).
1. Is there a California statute that authorizes people to “stand their ground”?
The California “stand your ground” rule is set forth in California Criminal Jury Instruction 3470. Under this instruction, people can stand their ground in self-defense when:
- they reasonably believe that they or another person is in imminent danger of suffering bodily injury or of being touched unlawfully,
- they reasonably believe that the immediate use of force is necessary to defend against that danger, and
- they use no more force than is reasonably necessary to defend against that danger.1
Note that it is not enough if a person believes he/she might suffer harm in the future. The harm must be imminent.2
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 is 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.3
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.
2. What does California case law say?
A case from 1978, People v. King 22 Cal.3d 12 , suggested 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 outlined 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.” 4
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. However, he was not 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.” 5
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. Therefore, people illegally carrying a firearm might do well to choose retreat over standing their ground.
But for everyone else, a 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.”)