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F 4.009a
Concealed Or Loaded Firearm: Justification — Grave Danger
(PC 12025, PC 12025.5 & PC 12031)
A person may justifiably carry a concealed or a loaded firearm if the person reasonably believes that [he] [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] [her] life or safety.
It is not necessary for defendant to establish self-defense by evidence sufficient to satisfy the jury that the self-defense was true, but if the evidence is sufficient to leave you with a reasonable doubt as to whether the defendant was justified, then [he] [she] is entitled to an acquittal.
Points and Authorities
This justification applies to PC 12025 and PC 12025.5 by express statutory language. It also 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.”
Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See FORECITE PG VII(C).]
NOTES
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].)
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 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 12.50 n2.)
