Tag Archives: Self Defense


Self Defense: Distinction Between Homicide Versus Assault Charges
February 3rd, 2022

“The difference between CALCRIM No. 3470 and CALCRIM No. 505—that is,the difference between self-defense in the homicide context and self-defense that will justify an assault—lies in the type of the threat the defendant believed they faced. To justify a homicide or attempted homicide, the defendant must believe that “danger” or “great bodily harm” is imminent, […]


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Transferred Self Defense
January 27th, 2022

The doctrine of transferred self-defense is available to insulate one from criminal responsibility where his or her act, justifiably in self-defense, inadvertently resulted in the injury of an innocent bystander. Under this doctrine, “just as one’s criminal intent follows the corresponding criminal act to its unintended consequences,” so too “one’s lack of criminal intent follows […]


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Porch Is Not Part of the Residence for the Presumption of Fear from Entry
September 27th, 2021

California’s “stand your ground” law is PC 198.5 which provides that a person using force likely to cause death or great bodily injury (GBI) within his or her residence is presumed to have held a reasonable fear of imminent death or GBI to themselves or a member of their household when that force is used […]


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Modification of CC 3472 to Reflect Escalation Doctrine
December 11th, 2018

CC 3472 provides as follows:   “A person does not have the right to self-defense if he or she provokes a fight or quarrel with the intent to create an excuse to use force.”   Under the “plain terms” of this instruction the use of “any amount of ‘force’ entirely preclude[s] [a defendant] from invoking […]


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Self Defense: Presumption of Reasonableness Applies Even If Judge Finds That Defendant Was Not Legally Subletting the Residence
August 3rd, 2016

People v. Grays (2016) 246 CA4th 679 held that the trial court erred when it refused to instruct the jury that a person using force within his residence against a person who forcibly enters shall be presumed to have held a reasonable fear of injury to self or another member of the household (PC 198.5). […]


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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 […]


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Lawful Performance: Custodial Officer- -Use of “Reasonable” Force
October 23rd, 2015

People v. Gutierrez (2009) 174 Cal. App. 4th 515, identified the following problem with CC 2671:   Read literally, [CC 2671] authorizes a custodial officer to use reasonable force in four situations- -“to restrain a person, to overcome resistance, to prevent escape, or in self-defense”- -but erroneously limits to the first situation alone not only […]


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Imperfect Self Defense Not Applicable To Shooting At Inhabited House Or Occupied Vehicle
September 7th, 2015

Self Defense and defense of others is applicable to a charge under PC § 246 alleging that the defendant shot at an inhabited house or occupied vehicle. (See CC 965, Bench Notes [judge has a sua sponte duty to instruct].)  However, unreasonable self defense is not applicable. (People v. Rodarte (2014) 223 Cal. App. 4th […]


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Self Defense: Applicability When Defense Relies On Theory Of Accident
July 24th, 2015

  People v. Villanueva (2008) 169 Cal. App.4th 41, 51, disagreed with the Related Issues portion of CC 510. Contrary to CC’s interpretation, People v. Curtis (1994) 30 Cal. App. 4th 1337, 1358-1359, did not categorically foreclose self-defense instructions when a defendant claims a killing was accidental. (See also People v. Elize (1990) 71 Cal. […]


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CC 3471 Is Superfluous When Self Defense Instructions (CC 3470, CC 3472, CC 3474) Are Given
June 5th, 2015

  CC 3471, explaining to the jury when a defendant engaged in mutual combat can lawfully use force in self-defense, need not be given when the jury is already being provided standard self defense instructions, such as CC 3470, CC 3472, and CC 3474. As People v. Johnson (2009) 180 Cal. App. 4th 702, explained, […]


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