Whether you are charged with assault, battery, domestic violence, assault with a deadly weapon, or even some forms of murder, your attorney may talk to you about self-defense (or defense of others).
CalCrim Jury Instruction 3470 states the basic elements of self-defense:
- 1. The accused had reason to believe that he or she was under threat of severe bodily harm or other unlawful contact.
- 2. The accused had reason to believe that the imminent danger required use of force to defend
- 3. The accused only used force that was necessary and reasonable to defend imminent danger
An affirmative defense is one is which the defendant has the burden of proving to a jury that even if the claims of the prosecution are true, the jury should find you not guilty for some other legal reason. Self-defense is NOT an affirmative defense. That is, it is the prosecutor's burden to prove beyond a reasonable doubt the defendant did not act in self-defense (or defense of others).
Self-defense when accused of murder is essentially the same except that the defendant must have a reasonable fear that he (or another person) was in imminent danger of being killed or suffering great bodily injury. (CalCrim Jury Instruction 505). When a claim of self-defense is used in a murder case, very often it boils down to one of two issues: 1) whether the defendant was really the aggressor, and therefore, not acting in lawful self-defense, or 2) whether the defendant used more force than was reasonable given all the facts and circumstances.
Despite some recent misreporting in local newspapers, there is no duty to retreat with faced with imminent danger. In California, not only can you stand your ground in situations where you can safely retreat, you can even pursue a would be attacker if necessary until the danger of bodily injury has passed.
Even with the protection of a self-defense claim, a prosecutor will be working hard to convince a jury that you were not acting in self-defense. If you or a loved one intend to claim self-defense in court, you will want an experienced criminal defense attorney to flesh and flush out the facts that show you did not violate the law.