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ttboy
02-05-2012, 2:06 PM
The past month their were two police related shootings in LA area which ended in deaths the similarities in both incidents is that NO weapon was seen but that the individuals were reaching for their waistband and were shot. Could a home owner use the same argument if a intruder enters his house and use the "reaching for the waistband" defense to justify a shooting?

j.hors
02-05-2012, 2:22 PM
Personally heck yea thats a valid argument, then again "he broke into my house" should be a no questions asked valid legal defense. But I am not sure how the court would view it. Just my thought

Lomic
02-05-2012, 2:24 PM
It's unlikely you'll have legal trouble shooting someone who has broken into your house, as long as you don't shoot them in the back while they're fleeing. That's where things start to get dicey depending on the DA.

j.hors
02-05-2012, 2:32 PM
It's unlikely you'll have legal trouble shooting someone who has broken into your house, as long as you don't shoot them in the back while they're fleeing. That's where things start to get dicey depending on the DA.

Except for the while meet force with force thing that california has.

Librarian
02-05-2012, 2:56 PM
Except for the while meet force with force thing that california has.

Perhaps you could expand on what you mean.

In general, California has no proportionality requirement for self defense; it's more like on/off - when the threat of death or great bodily harm stops, the defense with deadly force must cease as well.

j.hors
02-05-2012, 3:26 PM
Perhaps you could expand on what you mean.

In general, California has no proportionality requirement for self defense; it's more like on/off - when the threat of death or great bodily harm stops, the defense with deadly force must cease as well.

What I mean is for example someone breaks in, no weapon at least not that you can see, from what I understand (and I may be wrong, if so please correct me) you can not use deadly force. So I guess what I should have said is unless they present a weapon you can't shoot. And again if I am wrong please correct me.

Mulay El Raisuli
02-05-2012, 3:35 PM
What I mean is for example someone breaks in, no weapon at least not that you can see, from what I understand (and I may be wrong, if so please correct me) you can not use deadly force. So I guess what I should have said is unless they present a weapon you can't shoot. And again if I am wrong please correct me.


You're wrong. Just by virtue of being in your home uninvited, an intruder is legally presumed to be a deadly threat. Which means you can shoot him w/o having to see a weapon. W/O having to wait for him to make a 'dangerous move' or anything like that. You don't have to flee. You don't have to announce yourself or your intention to shoot.


The Raisuli

j.hors
02-05-2012, 3:49 PM
You're wrong. Just by virtue of being in your home uninvited, an intruder is legally presumed to be a deadly threat. Which means you can shoot him w/o having to see a weapon. W/O having to wait for him to make a 'dangerous move' or anything like that. You don't have to flee. You don't have to announce yourself or your intention to shoot.


The Raisuli

Ok thanks, I was just going off of what I read on here.
http://www.calguns.net/calgunforum/archive/index.php/t-191260.html
But thanks for clarifying

Lex Arma
02-05-2012, 8:18 PM
California 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.

oni.dori
02-05-2012, 8:33 PM
You're wrong. Just by virtue of being in your home uninvited, an intruder is legally presumed to be a deadly threat. Which means you can shoot him w/o having to see a weapon. W/O having to wait for him to make a 'dangerous move' or anything like that. You don't have to flee. You don't have to announce yourself or your intention to shoot.


The Raisuli

See, but the way this is worded:

California 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.

would seem to contradict what you said. I mean, I know that (for all intents and purposes), California has a sort of "castle doctrine" on the books that permits any necissary force to protect one's self, others, AND PROPERTY from any percieved threat, it is just not inforced very well (especially the property section). It seems to me, as is so oft the issue/problem, things would be much easier, clearer, and much more simply resolved if California would just adhere to/enforce the laws they ALREADY HAVE ON THE BOOKS.

CapS
02-05-2012, 10:18 PM
See, but the way this is worded:
...
would seem to contradict what you said. I mean, I know that (for all intents and

What part of 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.

Contradicts what Lex Arma said? :confused:

Cap :oji:

a1c
02-05-2012, 10:21 PM
A lady in our neck of the woods recently shot some drunk idiot who was trying to get into her house. He was unarmed, and probably way too wasted to realize he was trying to get into the wrong house. She shot him in the leg twice.

No charges were brought against her. She felt her life was in danger. Those are the operative words. Remember them should you ever be in that situation.

fiddletown
02-05-2012, 10:31 PM
Here's how Penal Code 198.5 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 that 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. Section 198.5 reads as follows: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.

[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 can't establish both that the guy you shot "unlawfully and forcibly entered...", and that you had reason to believe it, you don't get the presumption and must establish justification the harder way. (Suppose the guy you shot was your daughter's boyfriend who she let in?)

[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.

Ron-Solo
02-05-2012, 11:42 PM
I handled several homeowner shootings during my career. The key points are:

1. At the time you pulled the trigger, were you in fear for your life or the life of someone else?

2. Was that fear, based on the totality of the circumstances, reasonable?

I only had one case where the homeowner was taken into custody, but that was because his story didn't match the facts, there was obvious tampering with critical evidence prior to our arrival, and the person he shot posed zero threat to anyone.

If Johnny NoGood breaks into your house, you confront him and order him to stop, and he makes a quick move to his waistband, you are reasonable in your fear that he is reaching for a weapon.

6172crew
02-06-2012, 12:51 AM
Ron is there any reason you cant tell us what happened to the guy who was taken to the pokey? Im curios if the story sans names would benefit members here or not.

greg36f
02-06-2012, 7:45 AM
You're wrong. Just by virtue of being in your home uninvited, an intruder is legally presumed to be a deadly threat. Which means you can shoot him w/o having to see a weapon. W/O having to wait for him to make a 'dangerous move' or anything like that. You don't have to flee. You don't have to announce yourself or your intention to shoot.


The Raisuli



You seriously need to stop with this B.S. People that are new here are going to rely (stupidly) on your overly simplistc advice and get into trouble.

uyoga
02-06-2012, 11:48 AM
. . . "unlawfully and forcibly" . . . . What constitutes "forcibly"?

What if the perpetrator stealthily enters your dwelling by merely widening the opening of a window that was already partially open?

Or if the perpetrator, also stealthily, enters your dwelling while you left your door open because you were in the process of carrying groceries in from your car?

fiddletown
02-06-2012, 12:52 PM
. . . "unlawfully and forcibly" . . . . What constitutes "forcibly"?

What if the perpetrator stealthily enters your dwelling by merely widening the opening of a window that was already partially open?

Or if the perpetrator, also stealthily, enters your dwelling while you left your door open because you were in the process of carrying groceries in from your car?This is where case law is important. There may or may not be good case law on the question, and it would take a bit of research to see. In any case, I'm on my way out and won't be undertaking the research right now. If I get ambitious, I may give it a try later (or I may not).

If a court of appeals has ruled, then that's what it means. If a court of appeals has not, it depends on what you can convince a judge.

greg36f
02-06-2012, 1:02 PM
. . . "unlawfully and forcibly" . . . . What constitutes "forcibly"?

What if the perpetrator stealthily enters your dwelling by merely widening the opening of a window that was already partially open?

Or if the perpetrator, also stealthily, enters your dwelling while you left your door open because you were in the process of carrying groceries in from your car?


Those are great questions with no clear answers. Too many times here, people try to give simple answers that only serve to reinforce their own wants / beliefs.

A great portion of the law is a grey area where your (and possibly the bad guys) mindset is a BIG factor.

Everything comes into play; your demeanor, the bad guys demeanor, the physical size of both the bad guy and the good guy, the time of day, what was said / not said. The list goes on and on.

Even in your second example, what's "stealthy"? Did you turn to see him creeping up behind you in his socks" ? Is he just standing there? Does he look lost, ill, angry, drunk, and spun out of his mind? Does he say 'Oh crap, your not Mable" and quickly exit your house? Does he just grin and close the door behind him?

Sorry if I give you more questions that answers, but that is the nature of the game.

That is also why I argue against standing there like a mute idiot with your lawyer’s card in your hand (like some here will argue) if you do shoot a bad guy.

Give the police something to work with. Grief, fear, at least a one or two line explanation.....Immediately paint yourself as the victim; because you are the victim here.

Mulay El Raisuli
02-07-2012, 9:04 AM
See, but the way this is worded:



would seem to contradict what you said. I mean, I know that (for all intents and purposes), California has a sort of "castle doctrine" on the books that permits any necissary force to protect one's self, others, AND PROPERTY from any percieved threat, it is just not inforced very well (especially the property section). It seems to me, as is so oft the issue/problem, things would be much easier, clearer, and much more simply resolved if California would just adhere to/enforce the laws they ALREADY HAVE ON THE BOOKS.


I'm with CapS. Lex Arma said basically the same thing I did. Being a (very good) lawyer, he said it more precisely. But he doesn't contradict me at all.

What fiddletown had to say is good also. Again, just more detail.


You seriously need to stop with this B.S. People that are new here are going to rely (stupidly) on your overly simplistc advice and get into trouble.


"Simplistic" doesn't mean wrong though, does it? Are there exceptions, complications, provisos, quid pro quo, res epsa loquiters & stuff like that there? Sure. That's true for just about anything & everything.

BUT, distilled to its essence, the thread asks the question: If you come upon an intruder, IN YOUR HOME, may you legally shoot him?

The answer is "yes." I am in no way, shape or form wrong about this. It is not "B.S." at all. All that Lex Arma & fiddletown added is detail on WHY this is so.


The Raisuli

fiddletown
02-07-2012, 1:06 PM
..."Simplistic" doesn't mean wrong though, does it? ...Sometimes it does mean that you're wrong, or at least misleading. Sometimes the details are important. For example, you wrote:...Just by virtue of being in your home uninvited, an intruder is legally presumed to be a deadly threat...But "uninvited" is not the standard. The FedEx guy steps across the threshold of your open door shouting, "I've got a package I need a signature for." He may be in your home uninvited, but did he "unlawfully and forcibly enter"? I doubt that a judge would think so.

greg36f
02-07-2012, 1:20 PM
I'm with CapS. Lex Arma said basically the same thing I did. Being a (very good) lawyer, he said it more precisely. But he doesn't contradict me at all.

What fiddletown had to say is good also. Again, just more detail.

"Simplistic" doesn't mean wrong though, does it? Are there exceptions, complications, provisos, quid pro quo, res epsa loquiters & stuff like that there? Sure. That's true for just about anything & everything.

BUT, distilled to its essence, the thread asks the question: If you come upon an intruder, IN YOUR HOME, may you legally shoot him?

The answer is "yes." I am in no way, shape or form wrong about this. It is not "B.S." at all. All that Lex Arma & fiddletown added is detail on WHY this is so.


The Raisuli




I see your point and I agree with you at some level, but in this case "The devil is in the details'. The details MAKE the case so the details are in fact more important than anything else.

Q) Is it wrong to kill children?

A) Ahhhh,,,,Yeahhhh

Q) What if you are in Iraq and they are runnuing at you with a bomb?

Details are everything.

My point is I guess that you have almost 2000 posts and heve been here since 2008. Right or wrong, that tends to lend you credibility. Some guy new to the forum may take your word at gospel and act on it.

With great power comes great responsibility!!!!!:D

Just my thoughts on the matter....

Westerner
02-07-2012, 1:22 PM
It's unlikely you'll have legal trouble shooting someone who has broken into your house, as long as you don't shoot them in the back while they're fleeing. That's where things start to get dicey depending on the DA.

This.

FABIO GETS GOOSED!!!
02-07-2012, 1:32 PM
Here's how Penal Code 198.5 works.

I'm going to disagree with you a little on this. Because of the presumption of innocence, it is the prosecution that has the burden of proving that the shooting was not justified. The defendant does not have the burden of proving self-defense. So in terms of burden of proof, the PC 198.5 presumption does not alter the burden of proof in any way. It has been called "redundant" by at least one court. Here are some of my posts in previous threads that discuss it more, with cites:

http://www.calguns.net/calgunforum/showpost.php?p=5118894&postcount=4
http://www.calguns.net/calgunforum/showpost.php?p=5494330&postcount=33
http://www.calguns.net/calgunforum/showpost.php?p=5495003&postcount=42
http://www.calguns.net/calgunforum/showpost.php?p=5549128&postcount=51

Here's a previous post on "forcibly enters"":

http://www.calguns.net/calgunforum/showpost.php?p=5005845&postcount=98

fiddletown
02-07-2012, 1:53 PM
I'm going to disagree with you a little on this. Because of the presumption of innocence, it is the prosecution that has the burden of proving that the shooting was not justified. The defendant does not have the burden of proving self-defense. So in terms of burden of proof, the PC 198.5 presumption does not alter the burden of proof in any way....But it affects the burden of producing evidence.

In general, the burden to prove beyond a reasonable doubt that a use of force was not justified does not fall to the prosecution unless and until the defense has put on evidence sufficient to make a prima facie case of justification. What the elements of a prima facie case of justification are will be somewhat different whether or not the defense relies on 198.5.

Thus if the defendant could not use 198.5, he would need to put on sufficient evidence to support the inference that he, "...held a reasonable fear of imminent peril of death or great bodily injury ...." If he can rely on 198.5, he would not have to put on specific evidence on that point if he can put on evidence sufficient to support the inference that the person against whom he used force, "...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."

Whether of not that distinction makes a practical difference in how a defendant presents and supports a self defense plea will depend on exactly what happened, how it happened and what evidence is available.

Big Ben
02-07-2012, 2:49 PM
As has been discussed, every case will be assessed by the officers on the scene, and then by the DA's office based on the officer's report. From a practical "users" perspective, most homeowners aren't looking for the "opportunity" to shoot someone.

If you encounter someone in your home that isn't supposed to be there, and you are reasonably in fear of your life, defend yourself and allow the chips to fall where they may. On the flip side, if you encounter someone in your home that isn't supposed to be there, but you AREN'T in fear of your life ... don't shoot. I know there is lots of grey area, but that is unfortunately the way the world works. Obviously, you should be able to articulate why you were in fear for your life/safety and why you decided it was necessary to defend yourself with deadly force.

Honestly, I hope to never be in this situation, and wish others didn't have to be there either. Be smart, be safe. Fiddletown - Thanks for a great discussion of the legal nuances.

Big Ben
02-07-2012, 2:49 PM
Duplicate post deleted.

FABIO GETS GOOSED!!!
02-07-2012, 4:04 PM
But it affects the burden of producing evidence.

What you're saying is that if the defendant puts on sufficient evidence of the elements of the PC 198.5 presumption (i.e., (1) another person, not a member of the family or household, (2) who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and (3) the person using the force knew or had reason to believe that an unlawful and forcible entry occurred), the defendant gets a jury instruction that says the same thing as the ordinary self-defense jury instruction, i.e., the prosecution has the burden of proving that the shooting was not justified. In either situation, the burden of proof is identical.

In terms of the burden of producing evidence, if a defendant is not able to put on sufficient evidence to to get the ordinary self-defense jury instruction, but is able to put on sufficient evidence to establish the PC 198.5 elements, then the presumption would appear to be helpful/useful. In that way, it might be "easier" to get a self-defense instruction, but not having sufficient evidence to get the ordinary self-defense jury instruction in the first place is probably not a good place for the defendant to be. (This also assumes that, without more, sufficient evidence of the PC 198.5 elements is not sufficient evidence to get the ordinary self-defense jury instruction.)

If the defendant can put on sufficient evidence to get the ordinary self-defense jury instruction and to establish the PC 198.5 elements, then in terms of the burden of proof, PC 198.5 doesn't give the defendant anything that the defendant does not already have. A PC 198.5 instruction might have some value in emphasizing/restating the prosecution's burden under the ordinary self-defense instruction, but ultimately it is a "redundant" instruction.

In any event, PC 198.5 does not mean that you can feel free to blast away at an unarmed intruder who is not making furtive movements, etc. You should evaluate the threat the same way that you would evaluate any other threat and be able to articulate why you reasonably believed you were in imminent danger of death or great bodily injury.

fiddletown
02-07-2012, 4:20 PM
....if a defendant is not able to put on sufficient evidence to to get the ordinary self-defense jury instruction, but is able to put on sufficient evidence to establish the PC 198.5 elements, then the presumption would appear to be helpful/useful. In that way, it might be "easier" to get a self-defense instruction, but not having sufficient evidence to get the ordinary self-defense jury instruction in the first place is probably not a good place for the defendant to be....

...

In any event, PC 198.5 does not mean that you can feel free to blast away at an unarmed intruder who is not making furtive movements, etc. You should evaluate the threat the same way that you would evaluate any other threat and be able to articulate why you reasonably believed you were in imminent danger of death or great bodily injury.And that is the whole point. It's the way all Castle Doctrine laws work and it's a good thing to have. It can help satisfy the elements of justification and get you a self defense jury instruction, but it's not a "license to shoot" or a "get out of jail free card."

IGOTDIRT4U
02-07-2012, 4:32 PM
What you're saying is that if the defendant puts on sufficient evidence of the elements of the PC 198.5 presumption (i.e., (1) another person, not a member of the family or household, (2) who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and (3) the person using the force knew or had reason to believe that an unlawful and forcible entry occurred), the defendant gets a jury instruction that says the same thing as the ordinary self-defense jury instruction, i.e., the prosecution has the burden of proving that the shooting was not justified. In either situation, the burden of proof is identical.

In terms of the burden of producing evidence, if a defendant is not able to put on sufficient evidence to to get the ordinary self-defense jury instruction, but is able to put on sufficient evidence to establish the PC 198.5 elements, then the presumption would appear to be helpful/useful. In that way, it might be "easier" to get a self-defense instruction, but not having sufficient evidence to get the ordinary self-defense jury instruction in the first place is probably not a good place for the defendant to be. (This also assumes that, without more, sufficient evidence of the PC 198.5 elements is not sufficient evidence to get the ordinary self-defense jury instruction.)

If the defendant can put on sufficient evidence to get the ordinary self-defense jury instruction and to establish the PC 198.5 elements, then in terms of the burden of proof, PC 198.5 doesn't give the defendant anything that the defendant does not already have. A PC 198.5 instruction might have some value in emphasizing/restating the prosecution's burden under the ordinary self-defense instruction, but ultimately it is a "redundant" instruction.In any event, PC 198.5 does not mean that you can feel free to blast away at an unarmed intruder who is not making furtive movements, etc. You should evaluate the threat the same way that you would evaluate any other threat and be able to articulate why you reasonably believed you were in imminent danger of death or great bodily injury.

There's your answer right there. Best to check Cal jury instructions, gives you the easiest roadmap of what you need as a defense.

Mulay El Raisuli
02-08-2012, 8:03 AM
I see your point and I agree with you at some level, but in this case "The devil is in the details'. The details MAKE the case so the details are in fact more important than anything else.

Q) Is it wrong to kill children?

A) Ahhhh,,,,Yeahhhh

Q) What if you are in Iraq and they are runnuing at you with a bomb?

Details are everything.

My point is I guess that you have almost 2000 posts and heve been here since 2008. Right or wrong, that tends to lend you credibility. Some guy new to the forum may take your word at gospel and act on it.

With great power comes great responsibility!!!!!:D

Just my thoughts on the matter....


Thank you for reminding me of my responsibilities, Uncle Ben. :)

But I disagree that details are "everything." Context matters also. The discussion isn't about the FedEx guy standing just inside the door (a bit of super silly that I acknowledge didn't come from you). The topic is about an "intruder" inside your home. I use quotes & emphasis because the OP used that word. And so did I.

The OP seems to think that an intruder must commit some sort of overt act, beyond breaking into his house, before shooting him is justified. The quick & simple answer is that such an additional sign of hostility from an intruder is NOT required. The fact that he's an intruder is all the justification needed.

Did I go into great legal detail to explain why this is law? No.

Are there some other matters that factor in to the equation? Sure.

Am I worried that someone will take my advice & blow away the Fed-Ex guy? No. I trust that any guy new to the forum will take my comments in the context in which they are given.


The Raisuli

Jack L
02-08-2012, 8:15 AM
At night it's really hard to tell what a threat may be doing with their hands. Bottom line for anyone with half their gray matter functioning is; enter someone's house to commit a crime and expect to meet your maker in short order.

FABIO GETS GOOSED!!!
02-08-2012, 8:38 AM
The OP seems to think that an intruder must commit some sort of overt act, beyond breaking into his house, before shooting him is justified. The quick & simple answer is that such an additional sign of hostility from an intruder is NOT required. The fact that he's an intruder is all the justification needed.

That's a reckless interpretation of PC 198.5 imo. If the only evidence you have is that you shot an intruder, the shooting may be justified or it may not be justified. What you get is a jury instruction and then your fate is in the hands of the trier of fact. If you don't have enough evidence to get the ordinary self-defense jury instruction, then you've got a big problem and the PC 198.5 instruction may or may not help you.

Mulay El Raisuli
02-09-2012, 5:50 AM
That's a reckless interpretation of PC 198.5 imo. If the only evidence you have is that you shot an intruder, the shooting may be justified or it may not be justified. What you get is a jury instruction and then your fate is in the hands of the trier of fact. If you don't have enough evidence to get the ordinary self-defense jury instruction, then you've got a big problem and the PC 198.5 instruction may or may not help you.


Based on what, exactly?


The Raisuli

fiddletown
02-09-2012, 7:28 AM
That's a reckless interpretation of PC 198.5 imo. If the only evidence you have is that you shot an intruder, the shooting may be justified or it may not be justified. What you get is a jury instruction and then your fate is in the hands of the trier of fact. If you don't have enough evidence to get the ordinary self-defense jury instruction, then you've got a big problem and the PC 198.5 instruction may or may not help you.Based on what, exactly?...A decent understanding of how things can work in real life.

Mulay El Raisuli
02-10-2012, 7:13 AM
A decent understanding of how things can work in real life.


Not a real answer.


The Raisuli

a1c
02-10-2012, 7:29 AM
Repeat after me: you were fearing for your life.

Trust me - LEOs know that sentence well.

FABIO GETS GOOSED!!!
02-10-2012, 9:26 AM
Based on what, exactly?

The PC 198.5 jury instruction and the ordinary self-defense jury instruction both say the same thing: the prosecution has the burden of proving that the shooting was not justified. Does that instruction dictate how the trier of fact must decide the case? No, the outcome is not pre-determined by the PC 198.5 jury instruction any more than it is by the ordinary self-defense jury instruction given in any other case. The trier of fact may decide that the shooting was justified, or it may decide that the shooting was not justified. Before explaining in more detail, here is some of the very bad advice you have given in this thread:

BUT, distilled to its essence, the thread asks the question: If you come upon an intruder, IN YOUR HOME, may you legally shoot him?

The answer is "yes." I am in no way, shape or form wrong about this. It is not "B.S." at all.

The OP seems to think that an intruder must commit some sort of overt act, beyond breaking into his house, before shooting him is justified. The quick & simple answer is that such an additional sign of hostility from an intruder is NOT required. The fact that he's an intruder is all the justification needed.

You seem to think that PC 198.5 supplies the reasonable belief that you are in imminent danger of death or great bodily injury, and that's all the justification needed to shoot an intruder. This is not supported even theoretically by the PC 198.5 presumption, because it is inherent in every presumption that the fact presumed may be rebutted. In other words, if you shoot an intruder, the shooting may or may not be justified, it all depends on whether the trier of fact decides that the prosecution has met its burden of proving that you did not have a reasonable belief that you were in imminent danger of death or great bodily injury. This is something that is built into PC 198.5. so it is illogical and foolish to rely on PC 198.5 as "all the justification needed" to shoot an intruder.

If you have nothing else, and cannot put on sufficient evidence to get the ordinary self-defense instruction (which is a pretty pathetic place to be if you think about it), PC 198.5 gets you a jury instruction that allows the trier of fact to decide whether the shooting was justified. Maybe it will decide that the shooting was justified, maybe it won't. So if you think you can just kick back, put your feet up on the table, and say "PC 198.5 says I can legally shoot an intruder," you might want to rethink that. The trier of fact is going to make its decision based on the facts and the circumstances of the shooting, and the prosecution is going to have the same burden of proof, the same as in any other self-defense case.

a1c
02-10-2012, 9:35 AM
The PC 198.5 jury instruction and the ordinary self-defense jury instruction both say the same thing: the prosecution has the burden of proving that the shooting was not justified. Does that instruction dictate how the trier of fact must decide the case? No, the outcome is not pre-determined by the PC 198.5 jury instruction any more than it is by the ordinary self-defense jury instruction given in other cases. The trier of fact may decide that the shooting was justified, or it may decide that the shooting was not justified. Before explaining in more detail, here is some of the very bad advice you have given in this thread:

You seem to think that PC 198.5 supplies the reasonable belief that you are in imminent danger of death or great bodily injury, and that's all the justification needed to shoot an intruder. This is not supported even theoretically by the PC 198.5 presumption, because it is inherent in every presumption that the fact presumed may be rebutted. In other words, if you shoot an intruder, the shooting may or may not be justified, it all depends on whether the trier of fact decides that the prosecution has met its burden of proving that you did not have a reasonable belief that you were in imminent danger of death or great bodily injury. This is something that is built into PC 198.5. so it is illogical and foolish to rely on PC 198.5 as "all the justification needed" to shoot an intruder.

If you have nothing else, and cannot put on sufficient evidence to get the ordinary self-defense instruction (which is a pretty pathetic place to be if you think about it), PC 198.5 gets you a jury instruction that allows the trier of fact to decide whether the shooting was justified. Maybe it will decide that the shooting was justified, maybe it won't. So if you think you can just kick back, put your feet up on the table, and say "PC 198.5 says I can legally shoot an intruder," you might want to rethink that. The trier of fact is going to make its decision based on the facts and the circumstances of the shooting, and the prosecution is going to have the same burden of proof, the same as in any other self-defense case.

Let's keep in mind two things:

1. In most cases, homeowners/tenants never get arrested nor charged with anything after shooting an intruder. Unless things look really iffy. Usually the LE take the statement, and unless the guy has been shot in the back and on the lawn as he was running away, no charges are ever brought (and yet, I know of a local case years ago where a guy shot two guys in the back outside his home and wasn't even charged).

2. Even if charges are brought against the shooter, in most cases it won't even go to trial, as most criminal cases either get settled after a plea agreement, or charges can get downright dismissed.

So let's not get carried away here. I cannot count anymore the number of cases in my county or in other counties where an unarmed intruder gets shot, and the shooter never gets charged. It's all about perceived danger.

FABIO GETS GOOSED!!!
02-10-2012, 10:02 AM
So let's not get carried away here.

Who's getting carried away here? If you have a blanket policy of shooting intruders knowing that the risk of arrest and/or prosecution is low, that's fine, it's your call. If however you think that PC 198.5 is outcome-determinative if you do get arrested and prosecuted, that's wrong, and if you advise others that it is, that's reckless IMO. I'm not sure how things are handled in your county, but if there is a corpse in my house that I've just shot, I would imagine that I'm going to have some issues with the criminal justice system, whether or not I get arrested and/or prosecuted. Personally I want to be able to articulate why I had a reasonable belief that I was in imminent danger of death or great bodily with something more than "he was an intruder so I shot him."

Mulay El Raisuli
02-10-2012, 4:02 PM
Who's getting carried away here? If you have a blanket policy of shooting intruders knowing that the risk of arrest and/or prosecution is low, that's fine, it's your call. If however you think that PC 198.5 is outcome-determinative if you do get arrested and prosecuted, that's wrong, and if you advise others that it is, that's reckless IMO. I'm not sure how things are handled in your county, but if there is a corpse in my house that I've just shot, I would imagine that I'm going to have some issues with the criminal justice system, whether or not I get arrested and/or prosecuted. Personally I want to be able to articulate why I had a reasonable belief that I was in imminent danger of death or great bodily with something more than "he was an intruder so I shot him."


But this is all theoretical. Based on nothing more than a reading of the CPC, as far as I can tell. And of course, if I said anything to effect that PC 198.5 is outcome-determinative you be sure & point that out to me.

Again, the OP's question was if an intruder can be shot 'as-is' or if some additional sign of hostility is required before a guy can defend his home. The answer is still; No. The fact that he's an intruder justifies the shooting.

Can a homeowner do/say something to the responding cops to get himself arrested/tried? Sure. A good shoot can be falsely perceived if ya work on it, I suppose. So let me expand on the answer, keeping in mind the context that you have missed.

There is no need to expose yourself needlessly to additional risk when facing an intruder. He's an intruder. Hostility is the legal presumption & its just fine & dandy for a homeowner to presume it also.

Now, back at ya. Keeping the context of the OP's question in mind, can you articulate a reason why a homeowner should expose himself to the additional danger of waiting for an intruder to make some sort of hostile move, beyond that of being an intruder in the first place?


Let's keep in mind two things:

1. In most cases, homeowners/tenants never get arrested nor charged with anything after shooting an intruder. Unless things look really iffy. Usually the LE take the statement, and unless the guy has been shot in the back and on the lawn as he was running away, no charges are ever brought (and yet, I know of a local case years ago where a guy shot two guys in the back outside his home and wasn't even charged).

2. Even if charges are brought against the shooter, in most cases it won't even go to trial, as most criminal cases either get settled after a plea agreement, or charges can get downright dismissed.

So let's not get carried away here. I cannot count anymore the number of cases in my county or in other counties where an unarmed intruder gets shot, and the shooter never gets charged. It's all about perceived danger.


And this would be an example of how the real world works.

I'll add an anecdote of my own. A long while ago, here is San Diego County, a man in a "L" shaped house looked out his bedroom window (down the side of his house) & saw an intruder trying to 'jimmy' the kitchen window open. Now, the intruder wasn't even in the house yet. Armed (aside from whatever tool was being used to 'jimmy' the window) or not wasn't a determination that could be made. The homeowner shot the intruder dead.

And wasn't even arrested.

THIS is real world. This is not some guy (regardless of supposed education level) reading the CPC & making noise about what could, possibly, maybe, perhaps happen in a home shooting. The law is an intruder can be shot w/o him making any additional showing of hostility. The homeowner does NOT have to expose himself to any additional danger. Now, if you (or fiddletown) can make a real world showing of something that says a different answer is called for (I.E., if the two of you do something different than you've done so far), I'll be happy to read it.

Until then, you're both just wasting electrons.


The Raisuli

FABIO GETS GOOSED!!!
02-10-2012, 4:25 PM
Until then, you're both just wasting electrons.

That's more than apparent lol.

And of course, if I said anything to effect that PC 198.5 is outcome-determinative you be sure & point that out to me.

How about:

The fact that he's an intruder justifies the shooting.

fiddletown
02-10-2012, 4:42 PM
... The law is an intruder can be shot w/o him making any additional showing of hostility. The homeowner does NOT have to expose himself to any additional danger. Now, if you (or fiddletown) can make a real world showing of something that says a different answer is called for ...And in the meantime, let's remind everyone that you have absolutely zero experience as a lawyer and that you have absolutely no professional qualifications backing up the opinions you're tossing around. All opinions are not equal. An opinion backed up by professional qualifications is one thing, and one picked out of the air is another.

greg36f
02-10-2012, 6:10 PM
Mulay, I think that I have been clear here that i think you are wrong in some aspects of your opinion here, BUT I guess that it is possible that I am not understanding what you are saying.

I have a question for you that may clear things up for me and other people.

How do YOU define an "intruder"?

FABIO GETS GOOSED!!!
02-10-2012, 6:58 PM
I think he means "another person not a member of the family or household who unlawfully and forcibly enters" the residence or whatever PC 198.5 says. Then again he may have some real world source for his opinion other than the penal code, CALJIC instructions, and case law that everyone else is using.

fiddletown
02-10-2012, 7:35 PM
Mulay, ...How do YOU define an "intruder"?I think he means "another person not a member of the family or household who unlawfully and forcibly enters" the residence or whatever PC 198.5 says. Then again he may have some real world source for his opinion other than the penal code, CALJIC instructions, and case law that everyone else is using.On the other hand, the common meaning of the word is something on the order of "one who enters without invitation, permission or welcome." That would of course include someone who "unlawfully and forcibly enters" in the 198.5 sense, but could also include someone who does not.

FABIO GETS GOOSED!!!
02-10-2012, 7:56 PM
True. The 198.5 jury instruction actually uses the term "intruder" instead of "person" which is found in the statute. I should probably clarify that the "opinion" that I was referring to in my last post (which was hastily written on my cell phone) was the opinion that "[t]he fact that he's an intruder justifies the shooting." The Penal Code, Evidence Code and CALJIC instructions do not provide authority for that.

JimSar
02-10-2012, 10:53 PM
I've read in a thread here that a DA from a certain county told a Calgunner when asked this same question, "just make sure there's only one side to the story" or something to that effect.

Mulay El Raisuli
02-11-2012, 8:07 AM
And in the meantime, let's remind everyone that you have absolutely zero experience as a lawyer and that you have absolutely no professional qualifications backing up the opinions you're tossing around. All opinions are not equal. An opinion backed up by professional qualifications is one thing, and one picked out of the air is another.


The problem here is that the law is more than the Codes. Precedent matters a great deal also. Yet, you offer nothing in the way of precedent.

Example: did you know that abortion is illegal in many states? Why then do they have so many abortions? Because of precedent (Roe v. Wade, in this case). The point being that merely (and, "merely" is the right word) citing passages from the CPC doesn't really mean a whole heck of a lot.

As for my legal experience, how could you possibly know what kind & how much legal experience & knowledge I have? For that matter, how does anyone here know how much you have? Or that you're even a real lawyer? You're just a another guy with a nom de 'net stating your opinion.

And that opinion doesn't impress. You think someone could mis-use my words & shoot the Fed-Ex guy? That's supposed to be taken as real???? You criticize because my opinion it doesn't jibe with how things work in real life. Yet, you offer nothing at all from "real life" (and that would include precedent) yourself to show where I might be wrong. Nothing at all to counter what I have actually said. Nothing at all to counter the examples from real life that have been offered above in the thread. Nothing at all to show that a grab at the waistband (or some other show of hostility) is required before a homeowner may shoot to defend his home. Which would be required of you if you want to truly counter what I say.

If you don't mind, I'm going to regard you as not much of anything.


Mulay, I think that I have been clear here that i think you are wrong in some aspects of your opinion here, BUT I guess that it is possible that I am not understanding what you are saying.

I have a question for you that may clear things up for me and other people.

How do YOU define an "intruder"?


I define an intruder as:

A person who enters a private residence or place of business whilst up to no damn good.

I'm going to presume that the OP has this definition in mind as well.

So, to use the classical example (this being a hypothetical & all);

I'm home asleep. I hear a noise at three in the morning. I grab my .38 & go see what the noise is & I see a window or door forced open & a guy unknown to me (I.E., an intruder) coming into my home.

Now, my opinion is that if I come across such a person I am under no legal obligation to wait for the intruder to "reach for his waistband" (or show some other form of hostility) before taking action to preserve my own life. Waiting only increases the risk to me & California law in no way obligates me to take that risk. I may shoot that intruder right then & there because the law presumes that an intruder is not only up to no damn good, it presumes that he's planing violence. The (utterly stupid) legal requirement to flee before using lethal force only applies outside the home. In my home, I may stand & fight.

And this is where I point out that no one has offered anything to show me to be wrong.

Now, your friendly, neighborhood Lord of the Rif :) (being ever aware of his responsibilities) points out that this is not leave to shoot the Fed-Ex guy or a lost Girl Scout. They are not intruders. Nor is this leave to shoot the intruderif he turns & runs like mad. You're not allowed to execute miscreants & felons, merely to defend yourself.


I've read in a thread here that a DA from a certain county told a Calgunner when asked this same question, "just make sure there's only one side to the story" or something to that effect.


Well, I don't know about that, but it is true that dead men tell no tales.


The Raisuli

fiddletown
02-11-2012, 9:24 AM
...how does anyone here know how much you have? Or that you're even a real lawyer? You're just a another guy with a nom de 'net stating your opinion....As to that, you could check with wildhawker, Hoffmang, 9mmepiphany or Librarian.

...If you don't mind, I'm going to regard you as not much of anything...Why should I mind? As far as I'm concerned, your opinion is worthless anyway.

...I define an intruder as:

A person who enters a private residence or place of business whilst up to no damn good....Of course, that's not what the word actually means.

paul0660
02-11-2012, 9:47 AM
Great thread.

My question is, are jury instructions to be read out of the code, or can a judge put his personal whammy on them?

FABIO GETS GOOSED!!!
02-11-2012, 10:18 AM
Just by virtue of being in your home uninvited, an intruder is legally presumed to be a deadly threat. Which means you can shoot him w/o having to see a weapon.

I may shoot that intruder right then & there because the law presumes that an intruder is not only up to no damn good, it presumes that he's planing violence.

If you come upon an intruder, IN YOUR HOME, may you legally shoot him?

The answer is "yes." I am in no way, shape or form wrong about this. It is not "B.S." at all.

The fact that he's an intruder is all the justification needed.

Did I go into great legal detail to explain why this is law? No.

The fact that he's an intruder justifies the shooting.

He's an intruder. Hostility is the legal presumption & its just fine & dandy for a homeowner to presume it also.

The law is an intruder can be shot w/o him making any additional showing of hostility.

I may shoot that intruder right then & there because the law presumes that an intruder is not only up to no damn good, it presumes that he's planing violence.

Where you get into trouble here is you make claims about what "the law" says when there is no authority in "the law" for those claims. Your notion that "the law presumes it so I can presume it too" betrays a misunderstanding of the legal effect of an evidentiary presumption. The evidentiary presumption we are talking about here is not a source of justification to shoot an intruder, and there is nothing in "the law" that says it may be relied on to justify the shooting of an intruder. All the presumption does is put the burden on the prosecution to prove that you did not have a reasonable belief that you were in imminent danger of death or great bodily injury, which is the same burden it already has in any case where a self-defense jury instruction is given. The legal effect of the presumption is that the trier of fact gets a piece of paper that says the prosecution has the burden of proving the shooting was not justified.

Moving on to your own example:

I'm home asleep. I hear a noise at three in the morning. I grab my .38 & go see what the noise is & I see a window or door forced open & a guy unknown to me (I.E., an intruder) coming into my home.

Now, my opinion is that if I come across such a person I am under no legal obligation to wait for the intruder to "reach for his waistband" (or show some other form of hostility) before taking action to preserve my own life. Waiting only increases the risk to me & California law in no way obligates me to take that risk. I may shoot that intruder right then & there because the law presumes that an intruder is not only up to no damn good, it presumes that he's planing violence. The (utterly stupid) legal requirement to flee before using lethal force only applies outside the home. In my home, I may stand & fight.

What "California law" actually says is that "Where the character and manner of the burglary do not reasonably create a fear of great bodily harm, there is no cause for exaction of human life..., or for the use of deadly force...." In other words, even assuming you are confronting an intruder who is burglarizing your residence, justification for the use of deadly force depends on the circumstances, and the fact of an unlawful/forcible entry into your residence may or may not be enough. (Click here (http://www.gunlaw.com/index.php?option=com_content&task=view&id=81&Itemid=100) for a variation on your hypothetical, not mine.) PC 198.5 allows for a redundant/emphatic jury instruction in your favor but is not itself justification to shoot an intruder.

fiddletown
02-11-2012, 10:31 AM
Great thread.

My question is, are jury instructions to be read out of the code, or can a judge put his personal whammy on them?The parties can argue that a standard jury instruction should be modified because of characteristics of the particular case. The judge can also make adjustments. Of course, any such changes can become grist for the appellate mill

Mulay El Raisuli
02-12-2012, 6:12 AM
Where you get into trouble here is you make claims about what "the law" says when there is no authority in "the law" for those claims. Your notion that "the law presumes it so I can presume it too" betrays a misunderstanding of the legal effect of an evidentiary presumption. The evidentiary presumption we are talking about here is not a source of justification to shoot an intruder, and there is nothing in "the law" that says it may be relied on to justify the shooting of an intruder. All the presumption does is put the burden on the prosecution to prove that you did not have a reasonable belief that you were in imminent danger of death or great bodily injury, which is the same burden it already has in any case where a self-defense jury instruction is given. The legal effect of the presumption is that the trier of fact gets a piece of paper that says the prosecution has the burden of proving the shooting was not justified.

Moving on to your own example:



What "California law" actually says is that "Where the character and manner of the burglary do not reasonably create a fear of great bodily harm, there is no cause for exaction of human life..., or for the use of deadly force...." In other words, even assuming you are confronting an intruder who is burglarizing your residence, justification for the use of deadly force depends on the circumstances, and the fact of an unlawful/forcible entry into your residence may or may not be enough. (Click here (http://www.gunlaw.com/index.php?option=com_content&task=view&id=81&Itemid=100) for a variation on your hypothetical, not mine.) PC 198.5 allows for a redundant/emphatic jury instruction in your favor but is not itself justification to shoot an intruder.


Fail. Nothing here rebuts what I have actually claimed. Also, there's still no examples from the 'real world' to show me up either.


The Raisuli

FABIO GETS GOOSED!!!
02-12-2012, 8:03 AM
Fail.

Not a real answer lol.

Nothing here rebuts what I have actually claimed.

Of course it doesn't! Your law can be whatever you want it to be.

There are some good posts in this thread, esp. Ron-Solo, Big Ben, fiddletown, which sum it up pretty well.