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Originally Posted by TheGoldenState
...Since there is emphasis on unlawfully and forcibly would we then be delving into another aspect of penal codes if s/he intrudes via open door/window and NOT forced entry?...
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First, I'd need to do some research to refresh my memory regarding exactly what constitutes forcible or unlawful entry under California law. But instead, let's have another look at Penal Code 198.5 (emphasis added):
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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....
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The key to the presumption, in my view, is that the person using force must have known, or must have had reason to believe, that the person against whom he did use force had entered unlawfully and forcibly. And therefore to gain benefit of the presumption you, the resident, must be able to establish that you did know or have reason to believe that the person against whom you used force did enter unlawfully and forcibly.
So how are you going to satisfy the jury that you knew, or had reason to believe, that the scruffy specimen you ventilated in the hallway had entered unlawfully and forcibly -- and that he was not simply invited in by your daughter (to be sure, against your wishes)? Again, that will depend on the details of what actually happened and how it happened. Given all the circumstances, will you be able to articulate to the satisfaction of a jury what factors reasonably led you to conclude that your visitor was on your premises unlawfully and forcibly?