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F 16.460 n1 Concealed Firearm: Grave Danger As Justification (PC 12025, PC 12025.5 & PC 12031).
A person may justifiably carry a concealed (PC 12025) or a loaded (PC 12031) firearm if the person “reasonably believes that he or she is in grave danger because of circumstances forming the basis of a current restraining order issued by a court against another person or persons who have been found to pose a threat to his or her life or safety.” This justification applies to PC 12025 through PC 12025.5. It applies to PC 12031 pursuant to subsection (j) of that statute. The statutes specifically require that the jury “shall determine whether the defendant was acting out of a reasonable belief that he or she was in grave danger.”
The statutes do not define the term “grave danger.” However, because the legislature did not use the same terminology utilized in the self-defense statutes, i.e., “imminent peril of death or great bodily injury” (see, e.g., PC 198.5 and PC 197) there is a basis for concluding that the legislature intended the term “grave” to provide a different standard than that utilized in the other self-defense statutes. (See Bunner v. Imperial Ins. Co. (86) 181 CA3d 14, 22 [225 CR 912] [“Where a statute, with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject … is significant to show that a different intention existed.” [Citations.] [Internal quotation marks omitted.].)
For example, it could be argued that “grave danger” applies to non-life threatening or great bodily harm. This is so since the weapon statutes deal with possession, not use. In other words, why does one need to fear serious harm, as distinguished from harm in general, in order to carry a weapon? Moreover, such an interpretation is consistent with the requirement that the prospective attacker “pose a threat to [the defendant’s] life or safety.” Certainly threats do not need to rise to the level of great bodily injury to jeopardize one’s “safety.”
It should also be noted that the new legislation contains no requirement that the danger be “imminent.” Nor is imminent reasonably contained within the definition of grave. Moreover, given the fact that the justification applies to the carrying of a firearm in preparation for some future danger, the lack of an imminent requirement is fully consistent with the legislative intent.
(See also FORECITE F 12.46 n1 re: loaded weapon per PC 12031.)
F 16.460 n2 Definition of Loaded Firearm.
[See FORECITE F 12.46 n4.]
F 16.460 n3 Ex-felon: Carrying Firearm — Applicability Of “Momentary Possession” Principles.
[See FORECITE F 12.46 n5.]
F 16.460a
Carrying Of Firearm By Ex-felon: Unintentional Possession
*Re: CJ 16.460:
(See FORECITE F 12.46a.)
