Self Defense: Escalation of Nondeadly Assault
July 25th, 2016
Where a counter assault to a nondeadly attack is so sudden and perilous that no opportunity is given to “decline further to fight and [the defendant] cannot retreat with safety he is justified in slaying in self-defense.’ [Citations.]” (People v. Salazar (2016) 63 C4th 214, 249.) However, People v. Gleghorn (1987) 193 CA3d 196, 201 and People v. Quatch (2004) 116 CA4th 294, 303 correctly hold that this qualification only applies where the defendant commits a simple assault. (Ibid.) “[I]f one makes a felonious assault upon another, or has created appearances justifying the other to launch a deadly counterattack in self-defense, the original assailant cannot slay his adversary in self-defense unless he has first, in good faith, declined further combat, and has fairly notified him that he has abandoned the affray. [Citation.]” [emphasis added in Salazar opinion.] (Ibid.)
For sample instructions and further briefing on this issue see FORECITE F 3471.
Tags: CC 3471, Self Defense