Can this case be dropped

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Can this case be dropped

My girlfriend was visited by her soon to be ex-husband on Saturday night who has assaulted her twice and has a restraining order on him. She did not know it was him before opening the door. He came in the house and was not violent at first but he kept insisting that he won’t let her go and when she told him that she has moved on a long time ago he put his hands around her throat. She reached for a unloaded gun behind the TV and pointed at him to scare him away. He backed out the door and she followed him until he was outside the gate. The neighbor called the police and she was arrested for assault even though the gun was not loaded. What are the percentages that she is convicted?

Asked on February 20, 2018 under Criminal Law, California

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

Yes, a case may be dropped for self defense; or it may not be "dropped" (i.e. dismissed before trial), but self-defense can be raised as  a defense at trial.
The problem your girlfriend has is that "He backed out the door and she followed him until he was outside the gate."  Self-defense stops being self-defense when the attack stops and the attacker tries to retreat; by following him and continuing to threaten him as he retreated,  she clearly committed assault under the laws of your state:
784.011 Assault.—
(1) An “assault” is an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.
She intentionally (deliberately) committed an act (following him with a gun) which threatened violence (being shot) when it was reasonable ("well-founded") for him to believe he might be shot (he did not know the gun was unloaded. So in following him with a gun, she committed assault, when what she should have done is slam and lock the door and call the police.
There is no way to estimate the percentages of conviction (as opposed to case being dismissed or a succesful defense): that depends on who the prosecutor and judge are.


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