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Kid Stanislaus
04-11-2009, 6:28 AM
Does PC 197.2 REALLY allow us to shoot in defense of our property?

Untamed1972
04-11-2009, 8:34 AM
post the section so we can read it. I'm lazy and dont wanna go looking for it.

BigDogatPlay
04-11-2009, 8:52 AM
Here you go... subseciton in question is bolded:

197. Homicide is also justifiable when committed by any person in
any of the following cases:
1. When resisting any attempt to murder any person, or to commit a
felony, or to do some great bodily injury upon any person; or,
2. When committed in defense of habitation, property, or person,
against one who manifestly intends or endeavors, by violence or
surprise, to commit a felony, or against one who manifestly intends
and endeavors, in a violent, riotous or tumultuous manner, to enter
the habitation of another for the purpose of offering violence to any
person therein; or,
3. When committed in the lawful defense of such person, or of a
wife or husband, parent, child, master, mistress, or servant of such
person, when there is reasonable ground to apprehend a design to
commit a felony or to do some great bodily injury, and imminent
danger of such design being accomplished; but such person, or the
person in whose behalf the defense was made, if he was the assailant
or engaged in mutual combat, must really and in good faith have
endeavored to decline any further struggle before the homicide was
committed; or,
4. When necessarily committed in attempting, by lawful ways and
means, to apprehend any person for any felony committed, or in
lawfully suppressing any riot, or in lawfully keeping and preserving
the peace.

But... please note the terms of section 198 immediately following....

198. A bare fear of the commission of any of the offenses mentioned
in subdivisions 2 and 3 of Section 197, to prevent which homicide
may be lawfully committed, is not sufficient to justify it. But the
circumstances must be sufficient to excite the fears of a reasonable
person, and the party killing must have acted under the influence of
such fears alone.

If the circumstances are not deemed "sufficient to excite the fears of a reasonable
person", then you could have a problem.

Untamed1972
04-11-2009, 11:04 AM
I think the operative words in there you need to take notice of the ones regarding intent/attempt to commit a violent act of some kind or attempting to gain illegal entry into your home. You would be 'defending your property" because the person was attempting to steal or damage your property by committing a violent act upon you first, or is entering your home to commit a violent act.....so it's not so much about protecting the property, but about protecting yourself from a violent act.

At least that's the way I read it.

shooten
04-11-2009, 11:08 AM
My LEO friend says that anyone* entering your house has such intent.

* Disclaimer: by anyone, he didn't mean, your mom, mother in law, sister, dog, friend, aquainatance, brother, kid, kid's friend etc lawfully entering your house.

lorax3
04-11-2009, 12:30 PM
There has to be some case law on this...... Lets see what I can find...

-lorax

dustoff31
04-11-2009, 1:43 PM
But... please note the terms of section 198 immediately following....

If the circumstances are not deemed "sufficient to excite the fears of a reasonable person", then you could have a problem.


For once the wussification of society works in our favor. A lot people today would wet their pants at the mere thought of an intruder in their home.

But you make an excellent point. Many read "justified" and "presumed to be" and don't realize that they can still be put through the legal meatgrinder by lawyers attempting to prove otherwise.

Harrison_Bergeron
04-11-2009, 1:56 PM
http://www.courtinfo.ca.gov/jury/criminaljuryinstructions/calcrim_juryins.pdf

Page 310
COMMENTARY
Penal Code section 197, subdivision 1 provides that self-defense may be used
in response to threats of death or great bodily injury, or to resist the
commission of a felony. (Pen. Code, 197, subd. 1.) However, in People v.
Ceballos (1974) 12 Cal.3d 470, 477–479 [116 Cal.Rptr. 233, 526 P.2d 241],
the court held that although the latter part of section 197 appears to apply
when a person resists the commission of any felony, it should be read in
light of common law principles that require the felony to be “some atrocious
crime attempted to be committed by force.” (Id. at p. 478.) This instruction is
therefore written to provide that self-defense may be used in response to
threats of great bodily injury or death or to resist the commission of forcible
and atrocious crimes.

Mayhem
04-11-2009, 2:00 PM
My LEO friend says that anyone* entering your house has such intent.

* Disclaimer: by anyone, he didn't mean, your mom, mother in law, sister, dog, friend, aquainatance, brother, kid, kid's friend etc lawfully entering your house.

WRONG!!!!

I think your friend either said or ment is IF some one BREAKS into your home.

Some one breaking into your house by kicking in the door, picking the lock, or busting a window it shows I'll intent.

If they just walk into your home threw your unlocked front door it's a different matter.

KylaGWolf
04-11-2009, 4:22 PM
Anyone coming in to your house uninvited can be a threat. That being said if a stranger comes in to my home while i am there I am going to have the reasonable fear for my life. Found out last night that someone broke in to the empty apartment next door and had been sleeping and taking showers there. Now what sucks is we live in a gated community. Which means you don't get in without a key or code. Doesn't help that one scum bag neighbor has given the code to every single one of his druggie friends. I am looking forward to when he gets kicked out although still not going to make us safe per se but a bit safer. Just have to watch our backs out of the complex. They are supposedly changing the locks and code when they boot him. We shall see if that happens or not.

Mayhem
04-13-2009, 12:45 AM
If you shoot some one for just being in your home in California without showing that they broke in or posed any other threat then just being there in the first place, you are at some point going to jail, better have a bail bondsmen handy. In most cases the D.A. is going to have fun with you, specially if he/she is anti-gun or anti-castle doctrine, at that point your probably going to goto jail. Ask the guy in SAC who I think is still sitting in Prison.

Whatever you do, Don't tell anyone you shot the intruder for just being in your home.

There a Book Called "How to own a gun in California and stay out of jail" Buy it, Read It, Know It, Live It.

Quiet
04-13-2009, 2:42 AM
Penal Code 198.5
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.

As used in this section, great bodily injury means a significant or substantial physical injury.