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barracudamuscle
10-03-2011, 2:22 PM
Hello,
Before I get hazed I searched around the forums for an answers and tapatalk didnt have what I needed. Im visiting my inlaws in Chino, Ca and they said their neighbor had an attempted break in last night. Most have been amatuer, thebold screwdriver in the door lock kinda trick but they didnt enter the house.

My question is in Kalifornia whats your rights since it seems the Libtards have taken all your rights youd normally have. I know in Colorado threats to person or property is just for your defense. In CA a)am i legally protected to shoot someone in my house b) in my yard. You guys in CA might laugh at the yard question but as you know other parts of the country are pretty pro self defense.

Thanks Pat

arc
10-03-2011, 2:51 PM
I believe the most applicable PC would be ::

Cal. Penal Code section 198.5

ABSTRACT: A resident of a household who injures or kills an intruder who the resident knew or had reason to believe entered forcibly and unlawfully will be presumed to have acted reasonably in self-defense or in defense of another member of the household.

*Penal Code
Part 1: Of Crimes And Punishments
Title 8: Of Crimes Against The Person
Chapter 1: Homicide

Section 198.5: Exusable homicide.*

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.

Basically it says, if you find someone in your house that doesn't live there and you didn't invite them in (they broke in) then you are presumed to have been in fear for your life, and therefore self-defense would be an acceptable defense for you actions.

You will probably still have to go to court to defend yourself if the cops or the DA feel like it, and depending on lots of other circumstances things can go either way (try not to shoot anyone in the back, definitely don't follow the guy outside)

-James

Flopper
10-03-2011, 2:56 PM
+1 to what arc said.

Contrary to popular belief, California has a castle law and it's actually very solid.

We also have no duty to retreat.

What we aren't (all) allowed are the appropriate tools to actually defend ourselves, especially in public :mad:

billybob_jcv
10-03-2011, 3:06 PM
I don't care what state I'm in, if I need to shoot, then I'll shoot - and then I won't talk to anyone except my attorney. When a goblin appears at my door, I'm not going to invite him into my house... :D

Left Coast Conservative
10-03-2011, 3:11 PM
I do think that it would NOT go well for you if you exited your house, or followed an intruder who was leaving your house, and confronted that person in your yard and shot them there. If an intruder leaves your house, the threat of great bodily harm has ended, removing the justification for using deadly force.

There is no provision for using force to defend property at all, so don't do a Joe Horn (http://en.wikipedia.org/wiki/Joe_Horn_shooting_controversy).

Even though there is no duty to retreat, a good plan to ensure that any shooting that happens is justifiable might be to evacuate all family members to a room, cover the doorway, and call the police. If the intruder approaches the door, warn him that you are armed, that you have called the police, and that you will fire on them if they attempt to enter the room. Stay on the phone with the 911 dispatcher through the entire incident.

Hopefully this procedure will help end the incident without any shots being fired, but if you must shoot, you could demonstrate that you did everything reasonable to avoid shooting.

cmaynes
10-03-2011, 3:18 PM
the words "I shot until there was no threat" are very useful.

Quiet
10-03-2011, 3:20 PM
In CA a)am i legally protected to shoot someone in my house b) in my yard.
a) Yes
b) depends on the circumstances

The two CA state laws you should know, regarding using deadly force for self-defense in CA are PC 197 and PC 198.5.


Penal Code 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.

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.

barracudamuscle
10-05-2011, 3:31 PM
Sweet thanks for the clarification!

bwiese
10-05-2011, 3:33 PM
I do think that it would NOT go well for you if you exited your house, or followed an intruder who was leaving your house, and confronted that person in your yard and shot them there. If an intruder leaves your house, the threat of great bodily harm has ended, removing the justification for using deadly force.

Correct.

Avoid such actions if possible unless absolutely necessary.

Even if it's 100% good shoot, expect significant changes in your life - beginning with Police/DA interaction, possibly being held in jail for suspicion of murder [til proved otherwise], bail costs, etc.

Bravado is easy, but thoughtful practicality should be the rule of the day.

vantec08
10-05-2011, 4:01 PM
Generally yes, cuda - - -but be prepared for the state to crawl up your intestines with a microscope and a whopping civil suit you are NOT immune from.

The Shadow
10-05-2011, 4:41 PM
a) Yes
b) depends on the circumstances

The two CA state laws you should know, regarding using deadly force for self-defense in CA are PC 197 and PC 198.5.


Penal Code 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.

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.

In bold. So if a person breaks into your LOCKED car, which is burglary and a FELONY under California law, 197 PC says you can shoot them.

459. Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, as defined in Section 21 of the Harbors and Navigation Code, floating home, as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, railroad car, locked or sealed cargo container, whether or not mounted on a vehicle, trailer coach, as defined in Section 635 of the Vehicle Code, any house car, as defined in Section 362 of the Vehicle Code, inhabited camper, as defined in Section 243 of the Vehicle Code, vehicle as defined by the Vehicle Code, when the doors are locked, aircraft as defined by Section 21012 of the Public Utilities Code, or mine or any underground portion thereof, with intent to commit grand or petit larceny or any felony is guilty of burglary. As used in this chapter, "inhabited" means currently being used for dwelling purposes, whether occupied or not. A house, trailer, vessel designed for habitation, or portion of a building is currently being used for dwelling purposes if, at the time of the burglary, it was not occupied solely because a natural or other disaster caused the occupants to leave the premises.

3dre
10-05-2011, 9:15 PM
i was once told by a cop that if you have to shoot someone out side your house drag them in jokeing of couse he was only saying that to remind me that you are most likely gunna get arrested and not be able to justify in court for shooting some one in your yard but it is a much stronger case if they are in your house

huntercf
10-05-2011, 9:44 PM
i was once told by a cop that if you have to shoot someone out side your house drag them in jokeing of couse he was only saying that to remind me that you are most likely gunna get arrested and not be able to justify in court for shooting some one in your yard but it is a much stronger case if they are in your house

I have been told that as well. BTW if you shoot someone stealing your vehicle you will go to jail for murder/manslaughter unless they shoot at you or come at you with a weapon. Don't shoot someone in the yard unless it is absolutely necessary.

secret.asian.man
10-05-2011, 9:46 PM
my understanding of shooting someone in california.

1- life for a life. a you must be in fear for your or someone else's life
2- Property is worth NOTHING. you cannot protect property with deadly force unless it's destruction of property and at the same time endangering human life (ex: arson with people in the building).
3- public and private property. goes back to #1. but if it's on public property and you don't have a CCW you'll have some explaining to do.
4- inside and outside of my house. goes back to #1. but preferable INSIDE your house and your bullet/s must enter the front side of your target's body.
5- make sure your target is dead. you only want the police to hear one story, YOURS.

Librarian
10-05-2011, 11:46 PM
i was once told by a cop that if you have to shoot someone out side your house drag them in jokeing of couse he was only saying that to remind me that you are most likely gunna get arrested and not be able to justify in court for shooting some one in your yard but it is a much stronger case if they are in your house

I have been told that as well. BTW if you shoot someone stealing your vehicle you will go to jail for murder/manslaughter unless they shoot at you or come at you with a weapon. Don't shoot someone in the yard unless it is absolutely necessary.

Gord! Don't do this, don't even suggest it as a joke.

Tampering with the scene of a homicide will not turn out well.

Quiet
10-06-2011, 5:18 AM
In bold. So if a person breaks into your LOCKED car, which is burglary and a FELONY under California law, 197 PC says you can shoot them.

Only if you and/or another person(s) are in the car.

CaliforniaLiberal
10-06-2011, 8:17 AM
Here's a booklet summarizing CA firearms law from the CA DOJ website.

CALIFORNIA FIREARMS LAWS

http://ag.ca.gov/firearms/forms/pdf/Cfl2007.pdf


Starting on Page 27

Use of a Firearm or Other Deadly Force in Defense of Life and Body

The killing of one person by another may be justifiable when necessary to resist the attempt
to commit a forcible and life-threatening crime, provided that a reasonable person in the same or
similar situation would believe that (a) the person killed intended to commit a forcible and life-
threatening crime; (b) there was imminent danger of such crime being accomplished; and (c) the
person acted under the belief that such force was necessary to save himself or herself or another
from death or a forcible and life-threatening crime. Murder, mayhem, rape, and robbery are
examples of forcible and life-threatening crimes.


In general you may only use lethal force only if you genuinely fear for your life and a jury finds that a reasonable person in your situation would also fear for their life.

The law presumes that if you use lethal force in defending yourself against anyone who has broken into your house than you have a reasonable fear for your life.

"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."

You don't "get" to shoot people standing around in your yard or who are breaking into your car parked on the street or who are running away.

And as anywhere in our country, if the cops and the DA think you used lethal force in a reasonable, justifiable manner no charges will be brought. Unless the DA is running for re-election and thinks he can win a case against you.

ubet
10-06-2011, 9:07 AM
a) Yes
b) depends on the circumstances

The two CA state laws you should know, regarding using deadly force for self-defense in CA are PC 197 and PC 198.5.


Penal Code 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.

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.


The bolded I did not know, I know they would fry you for it, but the law makes it appear to sound like you can use deadly force to stop/apprehend for ANY felony if needed, the if needed part is where you might have problems though.

So if you see a riot in action, you can use deadly force to disperse it? Or how is that interpreted? Any case law on it?

Mesa Tactical
10-06-2011, 9:52 AM
5- make sure your target is dead. you only want the police to hear one story, YOURS.

You shouldn't even be posting that on a public forum.

The purpose of self defense is to stop a threat, not to kill anyone. It so happens that the most reliable way to stop physical threats is through the use of deadly force, but actually killing the attacker is almost never the objective.

The Shadow
10-06-2011, 1:31 PM
Only if you and/or another person(s) are in the car.

That's not what the law says. The first condition of 197 reads:

1. When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person

So according to 197 PC, a person doesn't have to be in the car, the car has to merely be locked per 459 PC to classify the crime as a felony.

According to 197 PC the three criteria for using deadly force are:

1. When resisting an attempt to murder

2. When resisting the attempt to commit a felony

3. When resisting the attempt to commit great bodily injury.

The fact that a person(s) are in motor home, truck with a sleeper, or pickup truck with a camper, are other factors, but 197 PC is very clear on the use of force.

Let me also add that, there is also the allowance for use of force when a person is attempting to make an arrest for the crime, which includes deadly force if necessary.

Bhobbs
10-06-2011, 2:04 PM
I live in Chino. If you don't mind PMing me the general area of the break in I would appreciate it.

Quiet
10-06-2011, 4:28 PM
The bolded I did not know, I know they would fry you for it, but the law makes it appear to sound like you can use deadly force to stop/apprehend for ANY felony if needed, the if needed part is where you might have problems though.

So if you see a riot in action, you can use deadly force to disperse it? Or how is that interpreted? Any case law on it?

Example...
All the Korean store owners who used deadly force during the LA Riots were not charged with a crime because they were protected under that portion of PC 197.

That's not what the law says. The first condition of 197 reads:

1. When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person

So according to 197 PC, a person doesn't have to be in the car, the car has to merely be locked per 459 PC to classify the crime as a felony.

According to 197 PC the three criteria for using deadly force are:

1. When resisting an attempt to murder

2. When resisting the attempt to commit a felony

3. When resisting the attempt to commit great bodily injury.

The fact that a person(s) are in motor home, truck with a sleeper, or pickup truck with a camper, are other factors, but 197 PC is very clear on the use of force.

Let me also add that, there is also the allowance for use of force when a person is attempting to make an arrest for the crime, which includes deadly force if necessary.

AFAIK...
Case laws modified it so that use of deadly force in defense of property, that you knew or reasonable knew was uninhabited, is no longer allowed. But, use of deadly force in defense of property, that you knew or reasonably knew was inhabitied, is still allowed.

Tarn_Helm
10-07-2011, 2:52 AM
Hello,
Before I get hazed I searched around the forums for an answers and tapatalk didnt have what I needed. Im visiting my inlaws in Chino, Ca and they said their neighbor had an attempted break in last night. Most have been amatuer, thebold screwdriver in the door lock kinda trick but they didnt enter the house.

My question is in Kalifornia whats your rights since it seems the Libtards have taken all your rights youd normally have. I know in Colorado threats to person or property is just for your defense. In CA a)am i legally protected to shoot someone in my house b) in my yard. You guys in CA might laugh at the yard question but as you know other parts of the country are pretty pro self defense.

Thanks Pat

Just reading sections of the penal code is NOT enough.

Read the chapter on California law here and you will understand why, and you will have many more questions answered that most people never ask but should ask: http://firearmslaw.com/index.html
Self-Defense Laws of All 50 Stateswith "Plain-Talk" Summaries
cost: $29.95 u.s.
ISBN: 978-0-9845058-0-7

status: In Stock

Compiled by Mitch Vilos - Attorney, and Evan Vilos

This is THE MOST IMPORTANT book EVER written for anyone who might be forced to defend him or herself. If you violate a firearm possession law, you might be charged with a low-level felony. But, if you kill or injure someone WITHOUT LEGAL JUSTIFICATION, you could lose everything or end up doing life in prison like the hapless neighborhood watchman whose plight is described in shocking detail in Chapter 2. Don't let this happen to you!

mrdd
10-07-2011, 4:15 AM
A good reference for understanding how a court would apply the law under PC 197 el al is the uniform set of jury instructions complied by the Judicial Council of California.

In the section on Justifiable Homicide: Defending Against Harm to Person Within Home or on Property, the bench notes point out that PC 197, subdivision 2 provides that “defense of habitation” may be used to resist someone who “intends or endeavors, by violence or surprise, to commit a felony . . . .”. However, in People v. Ceballos, the court held that the felony feared must be “some atrocious crime attempted to be committed by force.”

Forcible and atrocious crimes are those crimes whose character and manner reasonably create a fear of death or serious bodily harm.

The following crimes have been deemed forcible and atrocious as a matter of law: murder, mayhem, rape, and robbery.

Ceballos specifically held that burglaries which “do not reasonably create a fear of great bodily harm” are not sufficient “cause for exaction of human life.” (Id. at p. 479.) Thus, although the statute refers to “defense of habitation,” Ceballos requires that a person be at risk of great bodily harm or an atrocious felony in order to justify homicide.

ETA: California Courts Criminal Jury Instructons:

http://www.courts.ca.gov/partners/documents/calcrim_juryins.pdf

ccmc
10-07-2011, 5:05 AM
California has a castle law and it's actually very solid.


I'd say Swiss cheese solid. Not being exempted from civil liability is a major hole in the law. There are some smaller holes as well.

ccmc
10-07-2011, 5:10 AM
your bullet/s must enter the front side of your target's body.


If this is true it's a hole in the CA Castle Doctrine.

resident-shooter
10-07-2011, 5:27 AM
Basically, if u arent a cop, and u don't have $150k for good lawyers, bail, etc. Then its better to just shoot yourself. The laws are one thing, but DA will do the best to prosecute u for murder and get u a lifetime sentence.

a1c
10-07-2011, 7:36 AM
Basically, if u arent a cop, and u don't have $150k for good lawyers, bail, etc. Then its better to just shoot yourself. The laws are one thing, but DA will do the best to prosecute u for murder and get u a lifetime sentence.

That's one of the most misinformed statements I've ever read on this board. You sir are a FUD master.

fiddletown
10-07-2011, 8:09 AM
...Even if it's 100% good shoot, expect significant changes in your life - beginning with Police/DA interaction, possibly being held in jail for suspicion of murder [til proved otherwise], bail costs, etc.

Bravado is easy, but thoughtful practicality should be the rule of the day. Excellent advice.

Even if the DA does not file charges, you could expect to wind up paying a lawyer for assistance during an initial investigation, fees of anywhere from $5,000 to $10,000, or more.

Now if you're really having a run of bad luck, and the grand jury indicts, or the DA files charges, you'll be going to trial. And now, assuming you win (because you were after all justified) your legal bill, depending on how complicated the case is, could run anywhere from $25,000 to $150,000, or even more.

Not all self defense cases are easily resolved. It depends on what happened and how it happened and a lot of factors that will not be in your control. Consider --

This couple (http://www.stltoday.com/news/local/crime-and-courts/article_e5733da4-9156-11e0-bec5-0019bb30f31a.html), arrested in early April and finally exonerated under Missouri's Castle Doctrine in early June. And no doubt after incurring expenses for bail and a lawyer, as well as a couple of month's anxiety, before being cleared.

Larry Hickey (www.armedcitizensnetwork.org/images/stories/Hickey%20Booklet.pdf), in gun friendly Arizona: He was arrested, spent 71 days in jail, went through two different trials ending in hung juries, was forced to move from his house, etc., before the DA decided it was a good shoot and dismissed the charges.

Mark Abshire (http://thefiringline.com/forums/showthread.php?t=391091) in Oaklahoma: Despite defending himself against multiple attackers on his own lawn in a fairly gun-friendly state with a "Stand Your Ground" law, he was arrested, went to jail, charged, lost his job and his house, and spent two and a half years in the legal grinder before finally being acquitted.

Harold Fish (http://www.haroldfishdefense.org/), also in gun friendly Arizona: He was still convicted and sent to prison. He won his appeal, his conviction was overturned, and a new trial was ordered. The DA chose to dismiss the charges rather than retry Mr. Fish.

Gerald Ung (http://www.thehighroad.org/showpost.php?p=7359920&postcount=34): He was attacked by several men, and the attack was captured on video. He was nonetheless charged and brought to trial. He was ultimately acquitted (http://abclocal.go.com/wpvi/story?section=news/crime&id=7960513).

Some good folks in clear jeopardy and with no way to preserve their lives except by the use of lethal force against other humans. Yet that happened under circumstances in which their justification for the use of lethal force was not immediately clear. While each was finally exonerated, it came at great emotional and financial cost. And perhaps there but for the grace of God will go one of us.

...Contrary to popular belief, California has a castle law and it's actually very solid....The Castle Doctrine can be a great help, but it is not a "Get Out of Jail Free Card." Here's how it works.

[1] Self defense is an affirmative defense. If you shoot someone you have committed, prima facie, the elements of a crime. Your defense is that you shot in self defense thus legally justifying your act of violence. But it's your burden to put forth evidence establishing the you met the legal standard justifying your act.

[2] In California, Penal Code 197 describes the legal standard that must be met to justify a your committing a homicide:197. Homicide is also justifiable when committed by any person in any of the following cases:

When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person; or,


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,


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, ..."

[3] So in order to establish that shooting the guy in your home was justified you will have to demonstrate that the requirements of Penal Code 197 were satisfied. Penal Code 198.5, California's Castle Doctrine, creates a presumption that can make it easier for you to establish, as your affirmative defense, that your act of violence was justified.

[4] A presumption is a rule that affects evidence and burden of proof in court. Ordinarily, one who asserts something in court will have the burden of proving, by presenting good evidence, that certain facts supporting that assertion are true. But sometimes the law might allow one of those facts to be accepted as true without specific evidence of that fact if the party with the burden of proof shows that certain other facts are true. So the party might be entitled under a rule of law to have fact A presumed to be true if facts B, C, and D are shown to be true, even if the party produces no direct evidence that fact A is true.

[5] So with the presumption of Penal Code 198.5, you would not have to show specifically that you, "...held a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household..." if you can show both that (1) the person you shot "...unlawfully and forcibly enters or has unlawfully and forcibly entered the residence...."; and (2) you "...knew or had reason to believe that an unlawful and forcible entry occurred...."

[6] BUT if you are seeking the benefit of 198.5, you will still need to present evidence establishing both that (1) the person you shot "...unlawfully and forcibly enters or has unlawfully and forcibly entered the residence...."; and (2) you "...knew or had reason to believe that an unlawful and forcible entry occurred...."

[7] But note that any legally available presumption is rebuttable. That means that even though one may be entitled to the benefit of a presumption as to a certain fact, the other side may try to prove that fact is not actually true. So, for example, even if you might have been entitled to a presumption that you were reasonably in fear for your life, the prosecutor could put on evidence and try to show that under the particular circumstances, a reasonable person could not have been reasonably in fear for his life.

thrasherfox
10-07-2011, 8:43 AM
I didnt read all the posts so this might have been covered.

You should NEVER pull a gun on someone unless you are in fear of your life. If that does happen the following three things are to me "my" guiding principals.

1) Make sure the person is inside. Period. No dragging someone back in. if they are not in my house I really dont conisder them a threat.

2) Never shoot someone in the back. from my understanding you will be screwed. The prosecution can aceratin the person changed their mind, was no longer a threat and you shot them anyway.

3) Best if there is only one version of the story on how things went down.

fiddletown
10-07-2011, 10:00 AM
...3) Best if there is only one version of the story on how things went down.So are you suggesting that if the BG is on the ground bleeding but still breathing you would "finish him off"?

Very bad idea. One may use force to stop an attack. Once the act has stopped and the immediate threat ended, one would not be legally justified in the further use of force against the assailant. Looked what happened to Jerome Ersland (http://www.msnbc.msn.com/id/43710936/ns/us_news-crime_and_courts/#.To89zHHpHKo).

ic3h34rt
10-18-2011, 3:32 AM
Theoretically, if someone broke into your house and you confronted them with a firearm and managed to capture the assailant, are you able to use force to ensure that they do not escape. I'm reading that you are only able to use deadly force until the threat has ceased, does this mean if the assailant decides he doesn't want to wait around for the police he can just get up and walk out of your house?

haole_50
10-18-2011, 6:26 AM
As the cops have always advised; make sure they have something in their hand and are facing you (fear for your life); and they are on the property UN-INVITED! Nuff said!

fiddletown
10-18-2011, 6:51 AM
.. if someone broke into your house and you confronted them with a firearm and managed to capture the assailant, ...I'm reading that you are only able to use deadly force until the threat has ceased, does this mean if the assailant decides he doesn't want to wait around for the police he can just get up and walk out of your house?Pretty much. What would you plan to do if he does just walk out? Shoot him in the back?

From reviewing a few cases, there seems, at least in some other States, to be very limited circumstances in which using lethal force against a fleeing felon has been found justified. On the other hand, if you do use lethal force merely to retain custody of a suspected criminal, when there is no direct threat to you personally, or a loved one, of imminent harm, you're likely to be prosecuted. Even if you could ultimately get off, it'll cost you anywhere from $50,000 to $150,000 in legal fess (or more).

Personally, if the guy wants to leave, I'm not going to stop him. But I will be prepared to give the police a good description.

ic3h34rt
10-18-2011, 7:56 AM
Hmmm, I guess I better take a picture with my iPhone then before he decides to just get up and leave huh? :P

I guess I am misinterpreting "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." ?

fiddletown
10-18-2011, 8:35 AM
...I guess I am misinterpreting "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." ? You're not carefully reading that clause:


The use of lethal force needs to have been necessarily committed. Could less than lethal force have been used? Would you first need to attempt to physically restrain the assailant?


The apprehension needs to be by "lawful ways and means." Based on applicable California court decisions, would shooting the guy in the back be "lawful ways and means"?


Was whatever the bad guy did a felony? Are you sure?


How you interpret that clause is irrelevant. What matters is how California courts, especially courts of appeal, have interpreted and applied that clause. Have you done any research to determine what the case law on these issues is? And if there is no useful case law, which is possible, a private citizen using lethal force to restrain a suspected house breaker becomes an even more uncertain situation.


Given the requirements that need to be satisfied under paragraph (4) of Penal Code Section 197, prosecution is still possible, and likely, if there is any dispute about whether they have been satisfied. So if you claim your shooting of a fleeing suspect was justified under PC 197(4), but the DA or grand jury disagrees, you will be on trial. And even if you can convince your jury that, as a matter of fact, your situation satisfied PC 197(4), it will have cost you considerable time, stress and money.

Left Coast Conservative
10-19-2011, 8:32 AM
Pretty much. What would you plan to do if he does just walk out? Shoot him in the back?

I myself would never attempt to capture or detain a person in my house. If I confront a person in my house, I am going to order them, in a forceful tone of voice, to leave immediately, and I am going to inform them that I am armed, and that if they threaten me I will fire. If this results in the person leaving, great! The situation has been resolved in my favor: I am not harmed, my family is not harmed.

If instead, while I am ensconced in my bedroom, the person trashes the rest of the house, steals stuff, etc., but does not enter the room where I am, then leaves, also a good outcome. Sure, stuff is stolen or destroyed, but I am not harmed, and my family is not harmed.

So, the person attempts to enter the room. This is when I order them to stay out again, but if they continue to enter, I must make a decision: are they a threat, or not. What decision I make will depend on the circumstances, but I cannot see how it adds to my safety to allow a suspect into a room I occupy and just let them do whatever they wish. I believe that by that time I will have gained enough information about their intentions to make it clear that they are a threat.