California law allows use of force in self-defense or defense of others when you reasonably believe that you or they are in imminent danger of physical harm, and that force is necessary to stop the danger. However, you may only use the degree of force reasonably necessary under the circumstances.
Self-defense serves as a legal defense to many criminal offenses, including:
- murder, under Penal Code 187 PC,
- domestic battery, under Penal Code 243e1 PC, and
- assault, under Penal Code 240 PC.
- killing a man with a gun to prevent a rape
- kicking a burglar
- pushing an attacker down a staircase
A person can use self-defense as a legal defense when he or she defends:
- him or herself,
- another person, or
- his or her property.
Note that the Castle Doctrine is a set of laws in California that apply to the situation where people use self-defense inside their homes. Under this doctrine, a person:
- does not have to retreat when someone breaks into his/her home, and
- may use deadly force in defense of himself or someone else in the home.
In addition to using deadly force in defending one’s home, a person can legally use this force in self-defense when:
- he/she believes he/she, or someone else, is in imminent danger of being killed or suffering great bodily injury,
- he/she believes he/she must use deadly force to prevent death or injury, and
- he/she uses an appropriate level of force (under the circumstances) in self-defense.
Our California criminal defense attorneys will address the following in this article:
- 1. What is self-defense?
- 2. When can it be used as a legal defense?
- 3. What about the defense of others and property?
- 4. What is the Castle Doctrine?
- 5. Can a person use deadly force?
- 6. As applied to specific California crimes
1. What is self-defense?
Self-defense is a type of legal defense that an accused may use to negate a criminal charge.
The defense asserts that:
- a defendant used force or violence against someone else, but
- did so to protect himself, his/her property, or another person.
In using this defense, the defendant essentially:
- admits that he/she broke the law,
- but that it was justifiable under the circumstances.
2. When can it be used as a legal defense?
A defendant is said to have legally acted in self-defense under California state law if he/she:
- reasonably believed that he/she was in “imminent danger” of suffering bodily injury,
- reasonably believed that the immediate use of force was necessary to defend against that reasonable fear of imminent peril, and
- used no more force than was reasonably necessary to defend against that danger.1
If the above are true, then:
- a defendant has a valid legal defense, and
- is not liable for a crime.
Questions about self-defense often focus on:
- “imminent danger,”
- a “reasonable belief that a threat exists,”
- the idea of “no more force than necessary,”
- whether there is a duty to retreat, and
- what happens with an initial aggressor.
2.1. Imminent danger
Self-defense only works as a legal defense if an accused believed that he/she was in imminent danger.
A danger is considered imminent when there is an immediate or present threat. This is when a threat is happening right before someone. An imminent danger cannot relate to something that may or may not happen in the future.2
Example: Jerome is taunting Marcos, pushes him and then goes to punch him. Marcos is justified in using force or violence before Jerome can strike. He is faced with an immediate threat happening right before him.
Now say that Jerome tells Marcos that he is going to beat him up the next day. Marcos hits him in the face. Marcos cannot claim he was defending himself because the threat of danger was not happening before him. It pertained to a future event.
2.2. Reasonable belief that a threat exists
To successfully claim self-defense, an accused must “reasonably” believe that a threat exists. Note that a belief can be reasonable even if it is not correct.
In determining if a belief is reasonable, the judge or jury will consider:
- all of the circumstances that were known to the defendant, and
- how a reasonable person would react in the same situation.3
In determining reasonableness, a judge or jury can consider whether a defendant knew that someone threatened or harmed another in the past.4
Example: Maria is walking home from a party at night. She is in a commercial district with no homes around and no people in sight. A car stops and a man gets out and attempts to steal her purse. Maria would be justified in punching the man since it is reasonable that she believed a threat existed.
But compare this with Maria walking home during the day in a crowded neighborhood. A man approaches her and asks her for “a moment of her time.” She then kicks him. Maria would not be able to argue she was defending herself because any belief that a threat existed would not be reasonable.
2.3. No more force than necessary
A defendant can only use enough force, in defending himself, that is reasonably necessary under the circumstances.5
This means an amount of force that a reasonable person would believe is necessary under the circumstances. If the defendant used more force than was reasonable, he/she did not act in lawful defense of oneself.6
Someone who has been threatened or harmed by a person in the past is justiﬁed in acting more quickly or taking greater self-defense measures against that person.7
Example: It is unreasonable for Jenny to stab Doug when he tells her that he hates her. The stabbing is more force than was reasonably necessary.
But it could be reasonable if Doug:
- is her husband,
- had committed spousal abuse and domestic battery in the past, and
- was intoxicated and considered a mean drunk.
2.4. No duty to retreat
A person does not have to retreat, or run, in order to say he/she acted in self-defense. California is a “stand your ground state.”
This means a person in California does not have to try and run away from harm in order to assert self-defense. He/she is entitled to stand his/her ground and defend himself. This is so even if safety could have been achieved by retreating.8
Example: Nick is in a bar. A drunk bar patron approaches him, shows him a set of brass knuckles, and tells him he’s going to “crush him” if he doesn’t leave.
Here, Nick is justified in using reasonable force against the drunk patron. He can stand his ground and defend himself. He can also use force even though he could have easily left the bar and walked away from the harm.
2.5. Initial aggressor
A person can assert self-defense even if he/she was the aggressor in a fight. But, he/she may only do so if:
- he/she made a good faith effort to stop fighting and indicated this to the other person, or
- he/she initially attacked with non-deadly force and the other person responded with deadly force.9
Example: Greg picks a fight by pushing and hitting Tom. Tom then grabs a knife and stabs Greg. Here, Greg can probably pull out a gun and shoot Tom in self-defense. Tom “upgraded” the fight by using deadly force with the stab.
3. What about defense of others and property?
A person can use self-defense as a legal defense when he/she defends himself/herself, another person (“defense of another”), and his/her property.
The following must be true for the defense to work with regards to defending another person:
- the defendant reasonably believed that the other person was in imminent danger,
- he/she reasonably believed he/she needed to use force to prevent the danger, and
- he/she used no more force than necessary.10
The following must be true for the defense to work with regards to defending property:
- there was an imminent threat of harm to a person’s property, and
- the person used reasonable force to defend his/her property.11
4. What is the Castle Doctrine?
The Castle Doctrine is a set of laws that applies to the situation when a person uses self-defense inside his/her own home.
Under this doctrine, there is no duty to retreat if a resident confronts an intruder inside his/her home.
In addition, the resident has the right to use deadly force (in self-defense) inside his/her home when someone uses force to break in.12
Under Penal Code 198.5 PC, a person is presumed to have a reasonable fear of imminent harm when someone breaks into his/her home.13
Example: A man breaks into John’s home in the middle of the night. John reaches into his bedside stand and grabs his handgun. He can legally fire the weapon at the intruder in self-defense, or in defense of someone else in his home. Per PC 198.5, John is presumed to be in fear of imminent harm.
5. Can someone use deadly force in self-defense?
A person is legally justified in using deadly force in self-defense under certain circumstances.
For self-defense to work as a legal defense when an accused killed someone, the accused must show:
- he/she reasonably believed that he/she, or someone else, was in imminent danger of being killed, suffering great bodily injury, or being the victim of a forcible and atrocious crime
- he/she reasonably believed that he/she needed to use deadly force to prevent the danger from happening, and
- he/she used no more force than was reasonably necessary to keep the harm from occurring.14
Example: Isabelle is walking home from a bar at night. Suddenly, a patron from the bar runs behind her, grabs her, starts fondling her, and says she is going to “enjoy this.” It is likely justifiable self-defense if Isabelle grabs a nearby bottle, smashes it, and stabs the patron with it – killing him.
Isabelle reasonably feared she was going to be raped and she used appropriate force.
But compare this with the scenario where Isabelle is walking home from work during the day. She is in a crowded neighborhood and a man runs up to her and grabs her purse. Isabelle takes a knife from her jacket and stabs the man in the neck – killing him.
Here, Isabelle would fail in using self-defense as a legal defense. There was no real danger of her being killed or suffering great bodily injury. Further, she used more force than was necessary.
Note that a person can use deadly force in self-defense even if he/she was the original aggressor. This is provided the person tried (but ultimately failed) to end the fight.15
5.1. Can police use deadly force?
Yes, but only if deadly force is necessary. Courts consider not only the officer’s actions but also the victim’s actions before the deadly blow. If police kill unnecessarily, they can face criminal charges.16
6. As applied to specific California crimes
There are several California crimes where a defendant often tries to assert that he/she committed an offense because he/she was acting in self-defense. These crimes include:
- battery, per Penal Code 242 PC,
- resisting arrest, per Penal Code 148 PC,
- domestic violence, and
- murder, per Penal Code 187 PC.
6.1. Battery, Penal Code 242 PC
Battery is the unlawful touching of another person. This violent crime includes things like:
- a slight touching of another person to
- punching someone in the face.
California’s self-defense laws allow a person to act in self-defense of a battery if he/she believes to be in imminent danger.
Note that this is true even if someone touches another in a small degree. California law states that the slightest touching can be unlawful if it is done in a rude or angry way.17 The touching does not even have to cause pain or injury for someone to act in self-defense.18
If a person is in imminent danger of being unlawfully touched, he/she can lawfully use reasonable force in order to protect against the touching. This is true even though the person does not fear imminent bodily harm.19
Note also that the legal doctrine of “transferred intent” applies in California self-defense/battery cases. This doctrine says that:
- if a person defends against a battery and accidentally injures a third party,
- the person will not be prosecuted for that injury.20
6.2. Resisting arrest, Penal Code 148 PC
Penal Code 148 PC says that resisting arrest is when a person:
- delays, or
an officer while he/she is performing his/her official duties.
A person will not be convicted of this crime if he/she acted in defense of him/herself to an unlawful police procedure. Further, he/she will not be charged if he/she resisted against excessive force.
Note though that a person will be charged, under PC 148, if:
- an officer used excessive force in response to
- the person’s unjustified resistance.
6.3. Domestic violence
California domestic violence laws make it a crime to harm, or threaten to harm, an intimate partner. Common charges include:
- Penal Code 243(e)(1), domestic battery, and
- Penal Code 273.5, inflicting corporal injury on an intimate partner.
Acting in defense of oneself is often raised as a valid legal defense in these cases. The typical situation is when one spouse threatens to harm, or does harm, the other spouse, and the first party uses force in response. Self-defense is also used to protect children from harm by a spouse.
The defense is justified when there is imminent danger and the force used in response to the assailant is reasonable.
6.4. Murder, Penal Code 187 PC
Penal Code 187 says that murder is the intentional killing of another with malice aforethought. Malice aforethought is defined as an unlawful intention to kill or acting with a reckless disregard for human life.
If a person is in imminent danger of being killed, he/she may take whatever measures that are necessary to prevent the killing. Deadly force is obviously expected. The force will be excused if reasonable and not excessive to prevent harm.
The Flannel doctrine often shows up in murder cases where:
- the defendant is charged with murder (per PC 187), and
- the accused says he/she committed the murder because he/she was acting in self-defense.
The doctrine is also referred to as “imperfect self-defense.” It applies when the accused kills another person based on an honest but unreasonable belief in the need to use deadly force in self-defense.
To go into effect, the flannel doctrine requires a showing that:
- the accused believed that he/she was in imminent peril of being killed or suffering great bodily injury,
- the accused believed that the immediate use of deadly force was necessary to defend himself/herself, and
- at least one of these beliefs was unreasonable.21
The doctrine is not really a defense per se, although it applies like a partial defense.
A jury finding that the accused acted in imperfect self-defense results in a charge being reduced from:
- murder (with a possible life in prison sentence)
- to voluntary manslaughter (which is punished with three to eleven years in prison).
Example: Amy and Mark get into a minor traffic accident. They pull their cars to the side of the road. Amy has a concealed gun and walks to Mark’s car. He apologizes and reaches into the glovebox for his insurance information. Amy believes he is reaching for a weapon and shoots and kills him.
Here, Amy could be charged with murder. If she asserts she was defending herself, she’ll likely lose since her belief to be in danger of being killed was unreasonable. However, per the concept of imperfect defense of oneself, her murder charge could get reduced to voluntary manslaughter.
For representation with a criminal defense case…
Have you or a family member been wrongfully charged? For additional guidance or to discuss your case with a criminal defense attorney, we invite you to contact us at Shouse Law Group. Our California criminal defense lawyers offer free consultations. Also see our article on 5 legal self-defense weapons in California.
For a similar topic under Nevada law, please see our article on: “Nevada Self-defense Laws.”
For a similar topic under Colorado law, please see our article on: “Colorado Self-Defense & Make My Day Laws.”
- CALCRIM No. 3470. Criminal jury instructions. See also People v. Humphrey (1996) 13 Cal.4th 1073 for more on California self-defense laws.
- People v. Aris (1989) 215 Cal.App.3d 1178.
- CALCRIM No. 3470. See also People v. Humphrey, supra; and, People v. Clark (1982) 130 Cal.App.3d 371.
- CALCRIM No. 3470. See also People v. Pena (1984) 151 Cal.App.3d 462; and, People v. Miniﬁe (1996) 13 Cal.4th 1055.
- CALCRIM No. 3470.
- See same. See also People v. Humphrey, supra..
- See same.
- CALCRIM No. 3470. See also People v. Hughes (1951) 107 Cal.App.2d 487; and, People v. Hatchett (1942) 56 Cal.App.2d 20 for more on stand your ground laws.
- CALCRIM 3471 Mutual Combat or Initial Aggressor.
- CALCRIM 505 – Justifiable Homicide.
- CALCRIM 3476 – Right to Defend Real or Personal Property
- California Penal Code 198.5 PC.
- See same.
- CALCRIM 505.
- CALCRIM 3471.
- California Penal Code 835a; California Assembly Bill 392 (2019); Anita Chabria, “Newsom signs ‘Stephon Clark’s Law,’ setting new rules on police use of force“, Los Angeles Times, (August 19, 2019).
- CALCRIM No. 3470.
- See same.
- People v. Myers, (1998) 61 Cal.App.4th 328.
- People v. Mathews, (1979) 91 Cal.App.3d 1018.
- People v. Por Ye Her (2010) 181 Cal.App.4th 349.