Capitol Alert: Does California, like Florida, have 'stand your ground' law?

jwhite@sacbee.comJuly 18, 2013 

The Bee has gotten a deluge of responses to a report on members of the California Legislative Black Caucus planning to call for a boycott of Florida until the state repeals its much-dissected "stand your ground" self-defense law.

Some readers noted that neighborhood watch volunteer George Zimmerman did not invoke "stand your ground" as he was being tried for shooting down Trayvon Martin. Several argued that California case law establishes something tantamount to "stand your ground" and that Assemblyman Chris Holden, D-Pasadena, who is spearheading the boycott effort, would do better to focus on his home state.

So are they right?

"That's not my opinion," said Sacramento criminal defense attorney Ken Rosenfeld. "My opinion is the 'stand you ground' law in Florida and other states is much more expansive."

It is true that California juries are instructed that a person under attack has no obligation to retreat and can try to repel their assailant with force if need be. In other words, they can stand their ground and fight.

But there are a couple of differences, Rosenfeld said. One is that the Florida measure is a statute, whereas those claiming California has similar self-defense protections are looking to rules of evidence and the instructions that juries receive.

The other distinction is more subtle. Unlike in Florida, the California guidelines establish the idea of what is known as the "reasonable person standard," which considers not what Zimmerman (or the defendant in question) should have done but what an average citizen would think, an "amorphous concept of someone in the community who is not in the situation," Rosenfeld explained.

"What would they think? Is it reasonable to pursue once the threat was ended?" Rosenfeld continued. "Without question, you have the right to defend yourselves and others" in California, but "you can't expense $50 of punishment to a $5 crime in California."

Here's the Judicial Council of California's criminal jury instructions: A defendant "is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation."

When deciding whether the defendant's beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed.

Under Florida law, you can provoke an encounter and still use lethal means to defend yourself -- as Zimmerman appears to have done -- if you're attacked and:

Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant.

That's not to say defendants in California can't get acquitted for self-defense. "It's not like it's an impossible standard," said Sacramento attorney Steve Plesser.

"You do a self-defense case in California, there's nothing that's called 'stand your ground,' " Plesser said. "But there's a jury instruction the judge reads to the jury every time that says you have no need to retreat from the attacker."

But Plesser's law partner, Mark Reichel, underscored the difference between Florida law -- where the jury must gauge whether the defendant believes he's acting reasonably -- and California, where "the ultimate test of reasonableness is objective."

"It's kind of how we want people to act; it's got a normative aspect to it," Reichel said. "When it's subjective, it's more of how people act when it's reasonable to them."

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