PC 198.5 -- what does "forcibly" mean?

[kcbrown]

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.

Suppose it's a warm summer day and your house doesn't have air conditioning. So your main doors are open with the screen doors closed. The screen doors don't have locks on them.

A bad guy enters your house by opening the screen door. He is there against your will.

Is that considered "forcible entry" as per the quoted law? Because if not, you cannot shoot!! Why? Because for the above quoted presumption of fear to be in place, the person has to unlawfully (which I presume is handled by the fact that you verbally tell him to leave) and forcibly enter your residence.

The other question this raises is: how is "forcible entry" determined after the fact? It matters, because you can't successfully claim the above presumption if there's no evidence of "forcible entry", right?

[StuckInCA]

Forcibly, adverb, UNDER PROTEST


You enter my home w/o my consent, its done forcibly.

I dont care if my door is locked, unlocked, screen door, no door, etc.

[JDoe]

Suppose ...

IANAL but it is my understanding that even if someone enters your house without force, grabs a cold one from the fridge and sits down to watch your TV you cannot "shoot" because there isn't legally a "reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household."

At that point, to the best of my understanding you have a trespasser in your house.

The other question this raises is: how is "forcible entry" determined after the fact? It matters, because you can't successfully claim the above presumption if there's no evidence of "forcible entry", right?

Seems to me that forcible entry would be confirmed by physical evidence.

[StuckInCA]

IANAL but it is my understanding that even if someone enters your house without force, grabs a cold one from the fridge and sits down to watch your TV you cannot "shoot" because there isn't legally a "reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household."

At that point, to the best of my understanding you have a trespasser in your house.



Seems to me that forcible entry would be confirmed by physical evidence.

198.5 sets forth that unlawful, forcible entry into one's residence by someone not a member of the household creates the presumption that the resident held a reasonable fear of imminent peril of death or great bodily injury from intruder, and should he or she use deadly force against the intruder, this would make the homicide justifiable.

Stranger enters home
Homeowner doesnt know stranger
Homeowner has presumption/reasonable fear stranger can/will do harm
Homeowner shoots stranger
Justifiable homicide

Simple "castle doctrine" law.

Again, foricble is a adverb for under protest. You protest someone being in your home, they are forcibly there.

[FABIO GETS GOOSED!!!]

There was a recent thread on Penal Code 198.5, I did some research on "forcible entry" that is summarized here.

[FABIO GETS GOOSED!!!]

IANAL but it is my understanding that even if someone enters your house without force, grabs a cold one from the fridge and sits down to watch your TV you cannot "shoot" because there isn't legally a "reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household."

Yes; this can also be true even if a window or door was broken to enter the house.

[BillCA]

Break it down into components... it's sometimes easier to see...

• 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.

This only establishes the statutory presumption that there was fear of death or great bodily injury. In other words, the DA has to first prove there was no valid reason to fear death or GBI.

Suppose you're like most folks and secure your doors and windows nightly before bed. But it's a hot night and you doze off, then wake up and go to bed leaving a window not secured like you normally do. If you awaken with an intruder inside who came in via the "open" window, you would still be okay under the reason to believe clause. Your reasonable belief that you alway secured your doors and windows would likely be enough.

Note that removing a window screen would very likely qualify as "forcibly" entering as it is not intended to be removed by guests or for routine entry. Opening an unlocked screen door would not qualify as "forcible".

Don't forget section 197 which also lists justifications, but without the presumption of fear of death/GBI.

197. Homicide is also justifiable when committed by any person in any of the following cases:

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

Since someone unlawfully entering your premesis to commit any theft or any felony is guilty of 1st degree Burglary (a felony) it's rather straightforward.

The caveats are, of course, the intruder must have entered with the intent to commit a felony or a theft. That drunk neighbor of yours who crawls through an open, unscreened window because he thinks his wife locked him out again lacks the intent (and also the forcible entry needed in 198.5).

One can argue specifics all day long. Each case is unique in its facts. But suffice it to say that for some of us, if an intruder fails to comply with instructions at gunpoint, attorneys will earn their money.