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  #41  
Old 12-08-2018, 5:30 PM
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Originally Posted by pacrat View Post
Rick,

TpT, Whiskey_Tango, and FresnoRob, all have valid points.

Ring Doorbells... dash cams... security cams on private property. CopBlock weenies...paparazzi...News Choppers, etc. And for that matter, LEOs with body and dash cams, would all be considered taking part in criminal activity, since it is so listed in the Ca PC according to your interpretation.

Katz v US, was considered an "unwarranted search" because Feds were eavesdropping using hidden listening devices to surveil a criminal suspect. Katz is also significant in that the court held the Constitution protects people rather than places. That's difficult to reconcile with the position that any public place cannot be the location of a confidential communication.

Really curious about your thoughts regarding the contradictions in the construction of pc 632.7?
With regard to the other posters, please note that I have not claimed that that there is an expectation of privacy in the public places described by those folks. I have claimed that there is no categorical exclusion of privacy in those places. There's a big difference there. There is a very strong presumption that there is no expectation of privacy (or confidentiality as used in PC 632). But that's not absolute and that's my point. I believe that one is free to record their front door, driveway, yards, etc without offending PC 632. But if one were to record a face to face conversation in any of those areas, then I think the door is opened for a PC 632 violation.

I don't have the case citation available, but I did read, more than 25 years ago, a published PC 632 case involving a State Correctional Peace Officer who was a union steward. He secretly recorded a conversation with a prison warden regarding a labor issue that occurred in a public location. He was sued for the $5,000 default award by the warden who later learned of the recording. The defendant claimed that the recording was legal as being made by a peace officer under then-existing exceptions to the statute. The Appellate Court upheld the damages because even though it was made by a peace officer, was not made in the scope of the peace officer's duties.

Katz is very much on point. What made the "unwarranted search" was the fact that Katz had an expectation of privacy in the public phone booth.

I don't see a contradiction in PC 632.7. I wondering if you actually meant PC 637.2 (the civil remedy). Please note that PC 637.2 does not use the words injured/suffered/damaged together, or use them synonymously. The words do appear apart from each other in the statute, and their context is different. I'll ask the JD's on the forum to chime in with more exact, or better, explanation. My thoughts here are as a LEO presenting a case for filing. In PC 632.7(a) the statute only used the word "injury" and the context is that they suffered a legal injury - a privacy right has been violated. In PC 637.2(c) there is a statement that no damages must be proven. The context here is some of monetary value has been lost.
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  #42  
Old 12-08-2018, 7:37 PM
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Actual damages are those which you need to prove have been suffered, as opposed to nominal damages awarded without actual proof of having suffered the same. Compensatory damages are awarded to compensate one for those actual damages. Say a statute awards the injured party $5,000 without proof of loss. Punitive and exemplary damages are another kind of damages awarded not for the purpose of making the injured party whole, but to punish a wrongdoer and deter conduct that the polity especially wishes to curb.

Hence, it may be difficult to establish actual damages incurred as a legal and proximate result of having one's confidential communication recorded without permission, but the State allows damages of $5000 without proof of actual damages in order to deter the wrongful conduct as well as to compensate the injured party who may find it difficult to establish actual damages.

Last edited by Chewy65; 12-08-2018 at 7:40 PM..
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  #43  
Old 12-08-2018, 8:56 PM
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Rick, I parsed response for clarity/brevity.

Quote:
Katz is very much on point. What made the "unwarranted search" was the fact that Katz had an expectation of privacy in the public phone booth.
Agreed, had Katz been outside the privacy afforded by the booth. He would not have had an expectancy of privacy. No more than OP's neighbor would have during a conversation in view of cameras on his property. Which is why I believe "Katz" is a poor cite for a 632 violation of OP.

Quote:
I don't see a contradiction in PC 632.7. I wondering if you actually meant PC 637.2 (the civil remedy).
OOPsy, yes you are correct. It was pc-637.2 your previous post referenced. Which I copied and pasted. I brainfarted the conflation between 632.7 with 637.2.

Quote:
I'll ask the JD's on the forum to chime in with more exact, or better, explanation.
Sorry, I don't understand the JD acronym. But I believe Chewy65 has concisely answered what was to be my next questions. In relation to this.

Quote:
I wondering if you actually meant PC 637.2 (the civil remedy).
As to why "civil remedies" are included in the Penal Code. I was under the impression that civil remedies were in the civil code.

Thanks Chewy.

But my C&P and questions were relevant to the quote of 637.2 that I posted. [went back and corrected the numerical brainfarts]. And I can now point out that you did the same in your last post.

Quote:
In PC 632.7(a) the statute only used the word "injury" and the context is that they suffered a legal injury -
There is no mention of "injury/injured" in 632.7 [a]. That is from 637.2 [a]. Apparently my brainfarts are contagious.

As with most legalese discussions, oft times, answers lead to more questions.

Quote:
I believe that one is free to record their front door, driveway, yards, etc without offending PC 632. But if one were to record a face to face conversation in any of those areas, then I think the door is opened for a PC 632 violation.
That makes it sound like it is OK to record a porch pirate stealing packages from your porch. But if you step out and confront the perp in verbal confrontation. You have violated their 632 privacy rights if the video is recording the confrontation.


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  #44  
Old 12-08-2018, 9:26 PM
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Quote:
Originally Posted by pacrat View Post
Rick, I parsed response for clarity/brevity.



Agreed, had Katz been outside the privacy afforded by the booth. He would not have had an expectancy of privacy. No more than OP's neighbor would have during a conversation in view of cameras on his property. Which is why I believe "Katz" is a poor cite for a 632 violation of OP.



OOPsy, yes you are correct. It was pc-637.2 your previous post referenced. Which I copied and pasted. I brainfarted the conflation between 632.7 with 637.2.



Sorry, I don't understand the JD acronym. But I believe Chewy65 has concisely answered what was to be my next questions. In relation to this.



As to why "civil remedies" are included in the Penal Code. I was under the impression that civil remedies were in the civil code.

Thanks Chewy.

But my C&P and questions were relevant to the quote of 637.2 that I posted. [went back and corrected the numerical brainfarts]. And I can now point out that you did the same in your last post.



There is no mention of "injury/injured" in 632.7 [a]. That is from 637.2 [a]. Apparently my brainfarts are contagious.

As with most legalese discussions, oft times, answers lead to more questions.



That makes it sound like it is OK to record a porch pirate stealing packages from your porch. But if you step out and confront the perp in verbal confrontation. You have violated their 632 privacy rights if the video is recording the confrontation.


Pacrat,

Katz didn't hold that the recording would have been permitted outside of the phone booth. But I agree with your analysis and I personally believe that if Katz had been recorded speaking in public outside of the phone booth, the decision would have gone the other way. But the key point is that you can't draw a line in the sand and claim that conversations on one side of line can be recorded, and conversations on the other side cannot be recorded. You have to look at the situation and the appearance of privacy to the parties involved.

The term "JD" is a reference to folks holding a "Juris Doctorate" degree. In other words - Lawyers. Chewy is one, I'm not. I always defer to the JDs on technical points of the law. My legal background is limited to the preparation of criminal case for trial, and in managing civil cases involving deputies under my supervision, and later in authoring department policies that were responsive to civil decisions. That background isn't always consistent with understanding the finer distinctions of civil law.

You're not alone with the "Brain Fade" stuff. I did the same thing in another thread today regarding rimfire rifles and flash hiders.
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  #45  
Old 12-08-2018, 10:11 PM
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Originally Posted by RickD427 View Post
Can you provide some case citations please. I'm sure you'll find quite a few holding no expectation where the area is public. I'm looking for you to provide one holding that there can be no expectation in any public area. There's a lot of difference there.

I've followed the law in this area fairly closely and don't see it having been established to that extreme.

Let's keep in mind that the landmark case on expectation of privacy, Katz v U.S. occurred in a public phone booth.
No, I can’t cite the court case(s) off the top of my head, nor do I feel like doing homework and researching it because it doesn’t interest me. For I have no interest in things that I have no interest in. That’s your job if you’re so inclined to do so. I just know from law school and gave the basic “Cliff’s Notes” outline version of the law.

It’s like I know that possession of a fully automatic machine gun (without a tax stamp and permits) or committing murder on federal lands is a federal offense etc... but I can’t cite the exact federal code where it falls on. I just “know.”

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  #46  
Old 12-09-2018, 9:09 AM
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Originally Posted by TrailerparkTrash View Post
632 does NOT pertain to one neighbor chipping at another neighbor, out in the front yard(s) and between property lines and such. Nor where any other person in a public place can possibly over hear and/or view the actions of said neighbor, like a sidewalk, public road, street etc....

In other words, if you’re outside and you film/record your neighbor getting in your face about something, there’s no expectation of privacy. None. So there’s no violation of 632. But if you invited your crazy neighbor inside your house with the door closed to have a one-on-one “Private” conversation, then there’s an issue with 632.

I might be wrong, but from how I read post #1, and without further information from the OP, I’m assuming the incident occurred outside of the two residents and probably within view of a public street, road, sidewalk etc. I doubt the OP would invite a crazy man into his house to discuss their Hatfield vs. McCoy situation.
Whether or not there was a reasonable expectation of privacy is heavily fact dependent. True, it is less likely that a conversation carried on in a public place will be found to be confidential, but it can be. Say two people walking down a public street are discussing robbing a liquor store. If their is no one else on the street and they speak in muffled voices the fact that they are in a public place does not necessarily make the communication less than confidential. If they speak loudly on the same street as they walk within earshot of others it is less likely to be considered confidential. Don't confuse this with the plain sight exception to the rules of search and seizure as they are impacted by the expectation of privacy.
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  #47  
Old 12-09-2018, 11:00 AM
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...I believe it was the surreptitious recording in Katz that violates PC632...at least according to Lexipol policy...again not a JD
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  #48  
Old 12-09-2018, 1:25 PM
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Katz is a 4th Amendment search and seizure case and the 4th protects a person from governmental action, whereas 632 applies to private persons. Governmental entities perhaps, as well, but I believe it carves out an exception for a proper 4th Amendment search. What both cases share is the question of whether a person has an objectively reasonable expectation of privacy. While the Katz phone booth was available for use by the public, the member of the public still had that objectively reasonable expectation that his conversation was private. Now if the phone booth door was open and and a uniformed officer was standing just outside the phone booth user may not have had that privacy expectation, but then you have to consider that all parties to the communication must consent.
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  #49  
Old 12-09-2018, 6:03 PM
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Don't confuse this with the plain sight exception to the rules of search and seizure as they are impacted by the expectation of privacy.
Search & Seizure (4th Amendment) pertains to GOVERNMENT searches, NOT civilians openly talking within earshot of public access. I’m not the one confused here.
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  #50  
Old 12-09-2018, 6:14 PM
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Originally Posted by TrailerparkTrash View Post
Search & Seizure (4th Amendment) pertains to GOVERNMENT searches, NOT civilians openly talking within earshot of public access. I’m not the one confused here.
You're quite correct about the Fourth Amendment being limited in application to government entities and agents. You're not confused at all.

But 632 applies the principles of "Confidential Communications" to private actors. The definition of "Confidential Communications" incorporates the same expectation of privacy principles that apply to the Fourth Amendment under Katz.
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Old 12-09-2018, 9:26 PM
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Originally Posted by RickD427 View Post
You're quite correct about the Fourth Amendment being limited in application to government entities and agents. You're not confused at all.

But 632 applies the principles of "Confidential Communications" to private actors. The definition of "Confidential Communications" incorporates the same expectation of privacy principles that apply to the Fourth Amendment under Katz.
When you’re talking out in the open with your neighbor across the property lines, there is no “confidential communication.” I hear my rear yard neighbor talking over the fence to his next door neighbor all the time. I’m a witness to their open communication while I’m on my own property and they have no idea I’m even there sitting in a patio chair. But they talk loud enough for me and everyone else to hear their two way conversation. If I’m video recording butterfly’s in my wife’s garden and my neighbors are talking loud enough for my recorder to pick up their voices planning a murder, then again there’s no expectation of privacy for them, nor is there any serupticious nor malicious recording on my part. This is akin to what the OP described happen to him with his neighbor while talking across each other’s property line. It would be no different if the OP had a security surveillance system on his own property and it picked up his neighbor verbally threatening him to commit a crime of some sort. The security recording capturing the verbal threats by said neighbor would all have been legally acquired in that case.

Again, it’s just like someone’s Ring doorbell microphone and camera, recording the neighbors talking on their driveways together across the street. There’s no privacy and no “confidential communication” when expressing one’s voice openly where someone else has a legal right to be.

Going back to what the OP described in the first post, I’d say that there is zero privacy expectations in the manner in which he vocally communicated with his wacko neighbor.

You can place your own dashboard camera and microphone on your car now. If you get into a fender bender on a lone desert road with nobody around for miles and the other driver decides to get out and threaten you, there’s no crime on your part for having captured the entire event on your dash cam. Why? Becasue you were in a public place where there’s no expectation of privacy, even if you “think” there should be because you don’t see anybody nearby. Just because you don’t see anybody in a public place, doesn’t make your communication “confidential.”

Now, if the OP had said that he and the neighbor went into one or the other’s home together to discuss their differences with the front door shut from the outside world, then that would be another story here and we wouldn’t be having this discussion. But he didn’t say nor describe a scenario like that.
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  #52  
Old 12-10-2018, 9:26 AM
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Originally Posted by TrailerparkTrash View Post
Search & Seizure (4th Amendment) pertains to GOVERNMENT searches, NOT civilians openly talking within earshot of public access. I’m not the one confused here.
Which is why I began by pointing out the 4th protects from Governmental action.
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Old 12-10-2018, 9:48 AM
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The issue is if the expectation of privacy is reasonable. You are assuming that the OP and his neighbor reasonably should expect that third persons could overhear their conversation, but you do not consider that they were in the wide open and had no other neighbors for miles. You have to consider all facts bearing on the expectation of privacy. Did they speak in loud voices in a crowded open space or did they step away from that crown and speak in whispers?

The two did not need to step inside and shut the door if they were alone in the open.

Consider this from Katz:

Quote:
These considerations do not vanish when the search in question is transferred from the setting of a home, an office, or a hotel room to that of a telephone booth. Wherever a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures.
While it was a 4th Amendment case the argument regarding the reasonableness of an expectation of privacy applies both here and there as Rick says.

You are overly concerned with the place in which a conversation takes place, not that the place fails to impact the reasonableness of a right of privacy. It is also too easy to confused by the ruling in Hester that the 4th does not protect open fields.
All it is saying is that because the 4th does not protect the open field the court need not consider an expectation of privacy. Confidential communications protection goes beyond places protected by the 4th.

Last edited by Chewy65; 12-10-2018 at 10:14 AM..
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  #54  
Old 12-10-2018, 7:32 PM
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The recording without consent seems to be a very interesting issue. It raises 3 questions about the camera installed in the front of the vehicle. It's turned on whenever the vehicle is running. I just think of a few incidents, even I don't have a car camera.
1. Is it legal for it to record when the vehicle is driven on the public streets or private properties? Other people for sure don't know about it or consent to it.
2. Can that recording be admitted in court in case of an accident?
3. If I pulled the vehicle in my driveway, and the camera records a stranger standing in my driveway. Can he sue me for that?
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Old 12-10-2018, 8:55 PM
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I remember being trained, and then training folks in a very simple way...If the mailman is allowed to be there, it’s public. Same with sights and sounds. If random passers-by can see or hear you, then you have no expectation of privacy. People can record public stuff, pretty simple. Mind your p’s and q’s.

If that wasn’t the case, viral social media videos would never exist since everyone would sue everyone else for everything, arguing lack of consent.

Seems like we’re getting pretty wrapped around the axle here over a fairly strait-forward topic.
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Old 12-10-2018, 10:28 PM
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Originally Posted by Ishooter View Post
The recording without consent seems to be a very interesting issue. It raises 3 questions about the camera installed in the front of the vehicle. It's turned on whenever the vehicle is running. I just think of a few incidents, even I don't have a car camera.
1. Is it legal for it to record when the vehicle is driven on the public streets or private properties? Other people for sure don't know about it or consent to it.
2. Can that recording be admitted in court in case of an accident?
3. If I pulled the vehicle in my driveway, and the camera records a stranger standing in my driveway. Can he sue me for that?
Go back and check the definition of "Confidential Communications" as contained in PC 632.

I don't see any issue in recording under any of your three examples.

Generally for a recording to be admissible in court, it is necessary to show how it was made, and that it was protected against change after being made.

Yes, you can be sued by any person that you record. There is no "quality control" on the filing of a lawsuit and there is little that you can do to prevent suits from being filed. The best defense is to conduct your affairs such that a plaintiff cannot win a lawsuit.
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Old 12-11-2018, 7:34 AM
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Originally Posted by RickD427 View Post
Go back and check the definition of "Confidential Communications" as contained in PC 632.

I don't see any issue in recording under any of your three examples.

Generally for a recording to be admissible in court, it is necessary to show how it was made, and that it was protected against change after being made.

Yes, you can be sued by any person that you record. There is no "quality control" on the filing of a lawsuit and there is little that you can do to prevent suits from being filed. The best defense is to conduct your affairs such that a plaintiff cannot win a lawsuit.
I don't know about criminal, but in Civil Court all you need to admit is to introduce evidence that it depicts something relevant. In short, that what is recorded has not been changed. Of course to give it any weight you want to introduce evidence as to how it was made, kept, and that it has not been changed or edited.
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Old 12-11-2018, 9:01 PM
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This thread had evolved from law enforcement advice to lawyerly legal advice.
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Old 12-17-2018, 12:33 AM
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Quote:
Originally Posted by RickD427 View Post
Go back and check the definition of "Confidential Communications" as contained in PC 632.

I don't see any issue in recording under any of your three examples.

Generally for a recording to be admissible in court, it is necessary to show how it was made, and that it was protected against change after being made.

Yes, you can be sued by any person that you record. There is no "quality control" on the filing of a lawsuit and there is little that you can do to prevent suits from being filed. The best defense is to conduct your affairs such that a plaintiff cannot win a lawsuit.
Thank you. You're right that anyone can sue for any reason.
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Old 12-17-2018, 12:58 AM
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Next time he is on your property uninvited, can't you just enforce Castle Doctrine, if he seems like a threat? You should already have him on film of snooping, and possible view of firearm?

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Old 12-17-2018, 2:11 AM
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Next time he is on your property uninvited, can't you just enforce Castle Doctrine, if he seems like a threat? You should already have him on film of snooping, and possible view of firearm?

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Just what do you mean by "enforce Castle Doctrine."

Please note that California does not have a "Castle Doctrine." The closest thing that we have is the presumption of threat contained in Penal Code section 198.5. That presumption only applies where a non-family member forces entry into your residence. PC 198.5 falls short of being a classic "Castle Doctrine" in that it's limited to the inside of your residence, the presumption is rebuttable, and there is no protection against civil lawsuit.
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Old 12-17-2018, 2:41 AM
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Just what do you mean by "enforce Castle Doctrine."

Please note that California does not have a "Castle Doctrine." The closest thing that we have is the presumption of threat contained in Penal Code section 198.5. That presumption only applies where a non-family member forces entry into your residence. PC 198.5 falls short of being a classic "Castle Doctrine" in that it's limited to the inside of your residence, the presumption is rebuttable, and there is no protection against civil lawsuit.
The presumption is not rebuttable without substantial evidence. PC 198.5 falls a little short, but it's still pretty good for the average person who just wants to defend his family.

PC 198.5 does give you stand your ground rights inside the home with a known intruder. States like Hawaii don't even have a Castle Doctrine.
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Old 12-17-2018, 11:48 AM
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The presumption is not rebuttable without substantial evidence. PC 198.5 falls a little short, but it's still pretty good for the average person who just wants to defend his family.

PC 198.5 does give you stand your ground rights inside the home with a known intruder. States like Hawaii don't even have a Castle Doctrine.
I'm not sure where you came up with the "Substantial" evidence requirement for rebuttal. That requirement is not contained in the statute, nor does it appear in any case law that I'm aware of. Can you please provide the source?

PC 198.5 does give you a lot of legal support when you use deadly force against an intruder in your home, but you left out two additional requirements: 1) The intruder cannot be a member of the household, a 2) The intruder must "forcibly and unlawfully" enter the residence.

PC 198.5 will not help you against an intruder who simply walks into your home without using any force.

Please note that the fact setting presented by the OP involved contact with the other party that occurred outside of the residence. That point alone takes PC 198.5 off the table.
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Old 12-17-2018, 11:42 PM
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Quote:
Originally Posted by RickD427 View Post
I'm not sure where you came up with the "Substantial" evidence requirement for rebuttal. That requirement is not contained in the statute, nor does it appear in any case law that I'm aware of. Can you please provide the source?

PC 198.5 does give you a lot of legal support when you use deadly force against an intruder in your home, but you left out two additional requirements: 1) The intruder cannot be a member of the household, a 2) The intruder must "forcibly and unlawfully" enter the residence.

PC 198.5 will not help you against an intruder who simply walks into your home without using any force.

Please note that the fact setting presented by the OP involved contact with the other party that occurred outside of the residence. That point alone takes PC 198.5 off the table.
Substantial because you need overwhelming evidence that your life was not in danger.

Quote:
He added: “If you’re the homeowner, inside your home, the person is no longer there. But if he’s fleeing, he turns around and suddenly reaches for his waistband and you believe your life is in danger, again, you don’t have to sit there and wait to see what’s going to happen next.”
I didn't mean to come off as the Ukiah hero was using PC 198.5 to justify that situation. That's not what I meant at all. All I meant to say was that the Castle Doctrine of California actually seems pretty good given how "anti-self defense" a lot of other California laws are.

https://losangeles.cbslocal.com/2016...ng-a-burglary/
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Old 12-18-2018, 12:41 AM
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http://www.courts.ca.gov/partners/do...18_edition.pdf

506. Justifiable Homicide: Defending Against Harm to Person Within Home or on Property

The defendant is not guilty of (murder/ [or] manslaughter/ attempted
murder/ [or] attempted voluntary manslaughter) if (he/she)
(killed/attempted to kill) to defend (himself/herself) [or any other
person] in the defendant’s home. Such (a/an) [attempted] killing is
justified, and therefore not unlawful, if:

1. The defendant reasonably believed that (he/she) was defending a
home against <insert name of decedent>, who
(intended to or tried to commit ___________ <insert forcible and
atrocious crime>/ [or] violently[[,] [or] riotously[,]/ [or]
tumultuously] tried to enter that home intending to commit an
act of violence against someone inside);

2. The defendant reasonably believed that the danger was
imminent;

3. The defendant reasonably believed that the use of deadly force
was necessary to defend against the danger;

AND

4. The defendant used no more force than was reasonably
necessary to defend against the danger.
Belief in future harm is not sufficient, no matter how great or how
likely the harm is believed to be. The defendant must have believed
there was imminent danger of violence to (himself/herself/ [or] someone
else). Defendant’s belief must have been reasonable and (he/she) must
have acted only because of that belief. The defendant is only entitled to
use that amount of force that a reasonable person would believe is
necessary in the same situation. If the defendant used more force than
was reasonable, then the [attempted] killing was not justified.

When deciding whether the defendant’s beliefs were reasonable,
consider all the circumstances as they were known to and appeared to
the defendant and consider what a reasonable person in a similar
situation with similar knowledge would have believed. If the defendant’s
beliefs were reasonable, the danger does not need to have actually
existed.

[A defendant is not required to retreat. He or she is entitled to stand his
or her ground and defend himself or herself and, if reasonably
necessary, to pursue an assailant until the danger of (death/bodily
injury/ <insert forcible and atrocious crime>) has passed.
This is so even if safety could have been achieved by retreating.]

221

Copyright Judicial Council of California

The People have the burden of proving beyond a reasonable doubt that
the [attempted] killing was not justified. If the People have not met this
burden, you must find the defendant not guilty of [attempted] (murder/
[or] manslaughter).

New January 2006

BENCH NOTES

Instructional Duty

The court has a sua sponte duty to give defense instructions supported by
substantial evidence and not inconsistent with the defendant’s theory of the case.
(See People v. Baker (1999) 74 Cal.App.4th 243, 252 [87 Cal.Rptr.2d 803]; People
v. Barton (1995) 12 Cal.4th 186, 195 [47 Cal.Rtpr.2d 569, 906 P.2d 531]; People v.
Slater (1943) 60 Cal.App.2d 358, 367–368 [140 P.2d 846] [error to refuse
instruction based on Pen. Code, § 197, subd. 2 when substantial evidence supported
inference that victim intended to enter the habitation].)

Penal Code section 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 . . . .” (Pen. Code, § 197, subd. 2.) However, in People v.
Ceballos (1974) 12 Cal.3d 470, 477–479 [116 Cal.Rptr. 233, 526 P.2d 241], the
court held that the felony feared must be “some atrocious crime attempted to be
committed by force.” (Id. at p. 478.) Forcible and atrocious crimes are those crimes
whose character and manner reasonably create a fear of death or serious bodily
harm. (People v. Ceballos, supra, 12 Cal.3d at p. 479.) The following crimes have
been deemed forcible and atrocious as a matter of law: murder, mayhem, rape, and
robbery. (Id. at p. 478.) 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. (Ibid.) The instruction has been
drafted accordingly.

If the defendant is asserting that he or she was resisting the commission of a
forcible and atrocious crime, give the first option in element 1 and insert the name
of the crime. If there is substantial evidence that the defendant was resisting a
violent entry into a residence for the general purpose of committing violence
against someone inside, give the second option in element 1. (See Pen. Code,
§ 197, subd. 2.) The court may give the bracketed words “riotously” and
“tumultuously” at its discretion.

Related Instructions

CALCRIM No. 3477, Presumption That Resident Was Reasonably Afraid of Death
or Great Bodily Injury.

CALCRIM No. 506 HOMICIDE

222

Copyright Judicial Council of California

AUTHORITY
• Instructional Requirements. Pen. Code, § 197, subd. 2.
• Actual and Reasonable Fear. See Pen. Code, § 198; see People v. Curtis
(1994) 30 Cal.App.4th 1337, 1361 [37 Cal.Rptr.2d 304].
• Burden of Proof. Pen. Code, § 189.5.
• Fear of Imminent Harm. People v. Humphrey (1996) 13 Cal.4th 1073, 1082
[56 Cal.Rtpr.2d 146, 921 P.2d 1]; People v. Lucas (1958) 160 Cal.App.2d 305,
310 [324 P.2d 933].
• Forcible and Atrocious Crimes. People v. Ceballos (1974) 12 Cal.3d 470,
478–479 [116 Cal.Rptr. 233, 526 P.2d 241].
• No Duty to Retreat. People v. Hughes (1951) 107 Cal.App.2d 487, 493 [237
P.2d 64]; People v. Hatchett (1942) 56 Cal.App.2d 20, 22 [132 P.2d 51].

Secondary Sources
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Defenses, § 78.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justifications, § 73.13 (Matthew Bender).
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.04[1][c] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, § 142.01[1][b] (Matthew Bender).

Last edited by Samuelx; 12-18-2018 at 12:45 AM..
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Old 12-18-2018, 8:52 AM
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RickD427 RickD427 is offline
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Quote:
Originally Posted by Highlander21 View Post
Substantial because you need overwhelming evidence that your life was not in danger.
You're going in circles here. You're arguing that "Substantial" means that "Overwhelming" evidence is needed to overcome the presumption. It looks like you've just used another synonym to repeat the same thing.

I can't find any basis for that belief.

Are you just making this up, or can you actually provide a citation to statutory or case law?

SamuelX - Thanks much for posting the California Jury Instruction. That's quite helpful to this discussion. The Jury Instruction only points out the prosecution's duty to meet it's burden of proof. There is no mention of any heighted evidentiary requirement for the prosecution to overcome the PC 198.5 presumption.
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Last edited by RickD427; 12-18-2018 at 9:08 AM..
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