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Oct 03, 2021

What Qualifies As Self-Defense?

You were recently arrested and charge with a violent crime. However, you don’t believe the charges are legitimate because you were simply protecting yourself and using self-defense against your attacker.

Now that you’re facing possibly years behind bars and thousands of dollars worth of fines – along with your life being turned completely upside down – you’re wondering how it works to claim self-defense in a court of law.

If you’re worried about the potential penalties for your crime, even though you were just defending yourself, you can call on Oakland criminal defense attorney Elliot Silver at Silver Law firm for help. In the meantime, here’s some more information on self-defense law in California.

The Definition of Self-Defense

Whether you’re facing state or federal charges, you’re allowed to claim self-defense if you’ve been charged with a violent crime. In general, self-defense is the right to stop violence or force by using an appropriate level of counteracting violence or force. The rules vary in each state about what the appropriate level is or what would really constitute self-defense.

Self-Defense Laws in California

In California, you need to be able to prove a few things to show that you were acting out of self-defense. The first is that you believe you (or someone else) was in imminent danger of being hurt. There must be a real threat; for instance, someone pointed a loaded gun at you and you shot them before they could shoot you.

The second thing you will need to show is that you reasonably believed that you needed to use force to defend yourself, and the third is that you only used the amount of force that was reasonable to defend yourself. If someone was threatening to punch you and you ran them over with your car, then that might not hold up hold up as self-defense in a court of law, since the use of the car was excessive.

Additionally, when it comes to self-defense, the threat needs to be imminent. If someone breaks a bottle and is coming at you with it, then you could use reasonable force to defend yourself. But if someone breaks a bottle, puts it in their bag, and tells you they will use it if you mess with them, then the threat is likely not going to qualify as imminent. Keep in mind that the use of deadly force would be considered self-defense if there is an imminent threat of rape, robbery, murder, or any other attack that would lead to great bodily injury.

The belief that the threat is imminent has to be reasonable, too. If someone perceived that a threat was there when it wasn’t, then self-defense would not be able to protect them from being penalized.

Can You Use Self-Defense to Protect Others?

You can absolutely use self-defense as a defense to a crime if you were protecting someone else from great bodily injury. You need to show that that person was in imminent danger, you believed that reasonable force was needed in order to protect them, and you use the appropriate level of force to protect them. For instance, if someone was hurling heavy objects at your child’s head, then you could defend your child from being harmed.

Can You Use Self-Defense to Protect Your Property?

Yes. Under the Castle Doctrine, you can use reasonable force or even deadly force to protect your home if an intruder has invaded it. Here is what the law states exactly: “Any person using force intended or likely to cause death or great bodily injury within his or her residence shall be presumed to have held a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household when that force is used against another person, not a member of the family or household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred.”

Essentially, if a burglar or some other intruder forcibly enters or tries to enter your home, you have the right to defend yourself, your family, and your property.

Do You Have to Retreat in California?

In California, you do not have to retreat or run away to claim self-defense. You can stand your ground and defend yourself from being attacked. For example, if someone comes up to you in a public park and starts throwing punches, you don’t have to run away from them, even if it would have saved you. You could also stand there and punch that person back in order to protect yourself.

What If You Were the Aggressor?

Let’s say you started a fight with someone because you weren’t thinking straight. You still may be able to claim self-defense if you made a good faith effort to stop fighting and you demonstrated this to the other party, or you attacked with non-deadly force and the other party attacked back with deadly force. This might apply, for instance, if you were starting a fistfight in a bar because you were drunk, and then someone pulled a gun on you.

What Does Imperfect Self-Defense Mean?

Imperfect self-defense may apply to your situation. Essentially, this means that you were not reasonable in the force you used to defend yourself, someone else, or your property, but it was because you made an honest error in judgment.

For instance, you may have punched someone who you thought was trying to enter your home. However, a repairman was simply coming to your home for an appointment, and you forgot. Or, perhaps you thought two people were fighting, and you stepped in and beat up the person who you thought was the aggressor. But, it turns out they were just having fun and joking around. You could potentially claim imperfect self-defense in order to get your charges reduced.

Crimes Where Self-Defense Could Apply

There are certain violent crimes where self-defense could be used to defend yourself in California. Some of them include domestic violence, homicide, battery, assault, assault with a deadly weapon, and manslaughter.

Penalties for Violent Crimes in California

You may have been charged with a violent crime in California. Here are penalties for some violent crimes so you know what kinds of consequences you’re up against.

Domestic violence is physical or sexual violence against a boyfriend, girlfriend, current or former spouse, cohabitant, or any other relationship that would qualify. Sexual assault, choking, pushing, punching, slapping, shoving, and throwing objects are all examples of domestic violence. It is a wobbler crime, meaning it can be charged as a misdemeanor or a felony.

There are various statutes that could apply to a domestic violence situation, including battery or corporal injury to a spouse. If convicted of a misdemeanor crime, you could go to county jail for up to one year, and if you are convicted of a felony crime, you could go to state prison for up to four years. Additionally, you may have to go to domestic violence classes for a certain period of time.

In California, homicide could be charged as a variety of things, including first-degree or second-degree murder, capital murder, voluntary or involuntary manslaughter, or vehicular manslaughter. If you’re convicted of first-degree murder, you could spend 25 years to life in state prison, and if it qualifies as a hate crime, then you could spend life in prison. A second-degree murder conviction could result in a prison sentence of 15 years to life, while capital murder could result in life in prison without parole as well as capital punishment (though California rarely uses the death penalty).

Voluntary manslaughter could lead to three, six, or 11 years in state prison, while involuntary manslaughter could lead to a sentence of two, three, or four years in state prison. Vehicular manslaughter could result in up to 10 years in state prison for a felony conviction and up to a year in state jail for a misdemeanor conviction.

Assault charges vary in California depending on the type of assault that occurs. For instance, simple assault is a misdemeanor and is punishable by up to six months in jail and fines of up to $1,000. If you are charged with battery that causes serious bodily injury, you could go to prison for two, three, or four years. Assault with a deadly weapon is a wobbler, so if you’re charged with a misdemeanor, you could spend up to one year in county jail. If you are charged with a felony, you could go to jail for two, three, or four years. If you assault a public official, you could spend a year in jail for a misdemeanor or 16 months or two or three years for a felony.

What You Should Do When You Get Arrested for a Violent Crime

If you are arrested for a violent crime – even though you want to claim self-defense – you should never tell the cops or prosecutor anything without first consulting with a lawyer. During your arrest, note if you believe the cops used excessive force or if they failed to read you your Miranda rights (the right to remain silent). When you’re allowed your phone call, get in touch with an Oakland criminal defense attorney and tell them every single detail about what happened during your arrest. It’s best to write down what you remember right after you get out of jail. Don’t post bail without asking your attorney if you should.

No matter what you do, don’t speak to anyone about your case aside from your Oakland criminal defense attorney. This especially applies to your alleged victims. Never get in touch with them, because it could greatly hurt your case.

Instead, consult with your Oakland criminal defense attorney about what happened. They will hear you out and stand by your side when others may have abandoned you. They’re also going to work hard on your case to get you the best outcome possible, which could include a plea deal or getting your charges dropped altogether.

What Is a Plea Deal?

A majority of criminal cases end in plea deals, which means you, the defendant, would plead guilty to some or all of the crimes in order to get a reduced sentence. Sometimes, it’s your only choice, because going all the way to court could end up hurting you. A jury could find you guilty of all the charges, which would be a big risk to take. Since the prosecutor has to prove beyond a reasonable doubt that you are guilty of a crime, they’d rather not take the risk in court either, which is why they favor plea deals, too.

If you are able to prove self-defense, then there is the possibility that your charges will get dropped altogether. You and your Oakland criminal defense attorney will work hand in hand to try to make that a possibility. Any evidence you have to prove your innocence including witness statements, photographs, or video footage is going to be very helpful.

Why Invest in an Oakland Criminal Defense Attorney?

You may be wondering why you should pay for an attorney when the court is offering you one for free. The truth is that court-appointed attorneys are typically overwhelmed with cases and won’t be able to give yours the attention it deserves. This could end up hurting you for years to come; it’s not worth taking the gamble when it comes to your future.

Working With Oakland Criminal Defense Attorney Elliot Silver

Elliot Silver has years of experience defending clients against violent crime charges, and he is looking forward to helping you as well.

If you’ve been charged with a violent crime but you acted out of self-defense, reach out to Oakland criminal defense attorney Elliot Silver today at (510) 995-0000 or by emailing him at

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