What is the test for a jury to determine whether a defendant has a right to use excessive force in self-defense?
California, United States of America
The following excerpt is from People v. Smith, 122 Cal.App.3d 581, 176 Cal.Rptr. 73 (Cal. App. 1981):
"(T)he right of self-defense is based upon the appearance of imminent peril to the person attacked. When the danger has passed and the attacker has withdrawn, there can be no justification for the use of further force." (People v. Perez, 12 Cal.App.3d 232, 236, 90 Cal.Rptr. 521.) "The right to have a jury instructed on self-defense must be based upon more than imagined facts or inferences (citation), and it is not error in any event to refuse to instruct on a defense theory not supported by the evidence. (Citation.)" (Id.)
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