A Few Clarification Questions

[TheGoldenState]

California (California Penal Code § 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 should he or she use deadly force against the intruder. This would make the homicide justifiable under CPC § 197 [3]. CALCRIM 506 gives the instruction, "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 ... has passed. This is so even if safety could have been achieved by retreating." However, it also states that "[People v. 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.'” The court held that because a "trap-gun" was used, the doctrine did not apply. [4]

Lets try not to get this locked down too fast now guys

It appears California HAS a Castle Law but NOT a Stand Your Ground Law, where a few differences seem to be somewhat fuzzy.

A few questions or "what ifs," in regards to California laws and rights. Here goes.

If I, a lawful gun owner, get awoken in the midst of a good nights rest to find some person in my house, what are the can and can nots? IF the intruder turns and flees at the sight of me I KNOW the threat of immediate bodily injury is gone (in most cases) and I absolutely cannot "back shoot," him.
-IF, the intruder has a VISIBLE weapon of any type am I required to give warning/order before using deadly force?
-IF the intruder has NO apparent weapon yet makes NO attempt to flee and in turn simply holds ground, am I required to simply hold at gunpoint and call the police? (would be very odd, I know)
-Similarly, but with a key differentiation, IF the intruder has NO apparent weapon but is walking making slow but steady progress towards me while giving NO verbal threats does this constitute reason enough for use of deadly force?
-Referring again to shooting in the back, for instance, IF I am downstairs and an intruder breaks in, BUT does not come towards me, rather begins to run upstairs (away from and with back to me) AND I have family member(s) upstairs am I then legally covered to use deadly force for the preservation of persons in the general vicinity (upstairs) to where the intruder is heading?

Also, a side note, I have always been told since I was very young, that if I were to ever find myself in a situation where I HAD to use deadly force, to "Shoot and Shut Up," with the only pre-lawyer statements to be of the sort "I thought s/he was going to kill me," "Ive never been so scared." While in absolutely no way wishing upon death or ill will of said perpetrator turned victim. Have you similar advice?

I feel I have a decent grasp on accurate answers to these scenarios, but clarification and imput/advice is always positive. Having watched a few of the Self Defense shooting turned bad (for the real victim) I have been thinking more of what if scenarios (the porch shooting of the bully comes to mind).

[TheGoldenState]

no-one is touching this one eh….

[Frank Ettin]

Originally Posted by TheGoldenState

...no-one is touching this one eh...

First, at least as I see it, it's awfully broad, and I don't think these kinds of issues lend themselves to a cookbook approach.

In general, you are justified in employing lethal force only when a reasonable and prudent person, in like circumstances and knowing what you know, would conclude that lethal force is necessary to prevent otherwise unavoidable, imminent death or grave bodily injury to an innocent. To demonstrate that there was indeed a real danger from the assailant, one must show that the assailant had (1) the Ability, i. e., the power to deliver force sufficient to cause death or grave bodily harm; (2) the Opportunity, i. e., the assailant was capable of immediately deploying such force; and (3) put an innocent in Jeopardy, i. e., the assailant was acting in such a manner that a reasonable and prudent person would conclude that he has the intent to kill or cripple. A person claiming self defense will need to be able to articulate why in the exact situation as it unfolded he concluded that lethal force was necessary based in the forgoing paradigm.

So as to each of your examples, it all depends on exactly what and how things unfolded and whether you can articulate justification for the use of lethal force, under the formulation set out above.

Note also, that Cabrillo involved a trap gun, a gun rigged to fire automatically when a trip wire was sprung. While under Penal Code 198.5, "...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...", in California presumptions are rebuttable, and the presumption was effectively rebutted in Cabrillo. The resident wasn't even around when the intruder was shot by the trap gun, so the resident could not possibly have held a reasonable fear of imminent peril of death or great bodily injury.

Originally Posted by TheGoldenState

...I have always been told since I was very young, that if I were to ever find myself in a situation where I HAD to use deadly force, to "Shoot and Shut Up," with the only pre-lawyer statements to be of the sort "I thought s/he was going to kill me," "Ive never been so scared." While in absolutely no way wishing upon death or ill will of said perpetrator turned victim. Have you similar advice?...

This has been discussed at length here. See:

http://thefiringline.com/forums/showthread.php?t=390985

http://thefiringline.com/forums/showthread.php?t=379063

[Bartholomew Roberts]

Here is the Section 197 of the California penal code outlining when you may use lethal force in defense of a home:

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;

Section 198 explains further

A bare fear of the commission of any of the offenses mentioned
in subdivisions 2 and 3 of Section 197, to prevent which homicide
may be lawfully committed, is not sufficient to justify it. But the
circumstances must be sufficient to excite the fears of a reasonable
person, and the party killing must have acted under the influence of
such fears alone.

And finally, Section 198.5 states the California version of "Castle Doctrine"

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.

So if someone breaks into your house, there is a rebuttable presumption that you had a reasonable fear of death or great bodily injury. You don't have to prove that you had this fear - the prosecution would have to offer evidence to show that you did not have this fear.

"[People v. 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.'”

As fiddletown pointed out, the facts of the case make a big difference. The court did not hold that burglaries never create a fear of great bodily harm. They held that it could not do so in this particular case; because nobody was home to be harmed. Big difference compared to the scenario you outlined earlier.

[TheGoldenState]

Thanks for the info guys.

A bare fear of the commission of any of the offenses mentioned
in subdivisions 2 and 3 of Section 197, to prevent which homicide
may be lawfully committed, is not sufficient to justify it. But the
circumstances must be sufficient to excite the fears of a reasonable
person, and the party killing must have acted under the influence of
such fears alone.

Its early and my coffee is still brewing so forgive me. BUT fear alone is not enough to justify deadly force, but must (fear) also be included when you do you deadly force?

I want to go back to one of my original questions once more. copy/paste.

IF I am downstairs and an intruder breaks in, BUT does not come towards me, rather begins to run upstairs (away from and with back to me) AND I have family member(s) upstairs am I then legally covered to use deadly force for the preservation of persons in the general vicinity (upstairs) to where the intruder is heading?

Here, I dont have sufficient fear for myself but rather a fear for my family upstairs.

[HotShot.444]

... to LEO without your counsel present. "Shoot and shut-up" works well.

[Frank Ettin]

Originally Posted by TheGoldenState

...an intruder breaks in, BUT does not come towards me, rather begins to run upstairs (away from and with back to me) AND I have family member(s) upstairs ...

See Penal Code 197 as quoted by Bartholomew Roberts (emphasis added):

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;

[Frank Ettin]

Originally Posted by HotShot.444

..."Shoot and shut-up" works well...

First, I don't necessarily agree that you shouldn't say anything at all. I explain below.

Second, I do agree that if you're claiming self defense, the choice of lawyer is very important. I explain that below also.

If Claiming Self Defense, Keeping Completely Quiet Is Not the Best Idea, But Don't Say Too Much.

Call 911. Be the first to report the incident and do so immediately. If you don't report it, or if there's a long delay, you will appear to have a guilty conscience.

Then, having taken LFI-I with Massad Ayoob, spending time with him and helping with a class of his in Sierra Vista, AZ not too long ago, I'll go along with his recommendation for when the police arrive.

[1] While one has a right to remain silent, clamming up is what the bad guys do. Following a self defense incident, you'll want to act like one of the good guys. You also won't want the investigating officers to miss any evidence or possible witnesses. What if the responding officers miss your assailant's knife that you saw fall down the storm drain? What if they don't know about the guy you saw pick up your assailant's gun and walk off with it?

[2] The police arrive and see a body on the ground with bullet holes in it, and they see you with a gun nearby. They will immediately be inclined to think of the ventilated corpse as The Victim and the guy still standing as The Attacker. But you're really the victim, and you'd prefer the police to have that in their minds as they begin their investigation.

[3] At the same time, you don't want to say too much. You will most likely be rattled. You will also most likely be suffering from various well known stress induced distortions of perception.

[4] So Massad Ayoob recommends:

• Saying something like, "That person (or those people) attacked me." You are thus immediately identifying yourself as the victim. It also helps get the investigation off on the right track.
• Saying something like, "I will sign a complaint." You are thus immediately identifying the other guys(s) as the criminal(s).
• Pointing out possible evidence, especially evidence that may not be immediate apparent. You don't want any such evidence to be missed.
• Pointing out possible witnesses.
• Then saying something like, "I'm not going to say anything more right now. You'll have my full cooperation in 24 hours, after I've talked with my lawyer."

Pleading Self Defense is Very Different From the Common Lines of Defense to a Criminal Charge, and You'll Want a Lawyer Who Understands About Presenting a Self Defense Case.

Note that the "Don't Talk to the Police" video we hear a lot about on the Internet is about a police contact in general. It works fine when you aren't claiming self defense, and it's up to the State to prove your guilty beyond a reasonable doubt. But it works differently if you are pleading self defense.

Basically --

[1] The prosecutor must prove the elements of the underlying crime beyond a reasonable doubt -- basically that you intentionally shot the guy. But if you are pleading self defense, you will have admitted that, so we go to step 2.

[2] Now you must present evidence from which the trier of fact could infer that your conduct met the applicable legal standard justifying the use of lethal force in self defense. Depending on the State, you may not have to prove it, i. e., you may not have to convince the jury. But you will have to at least present a prima facie case, i. e., sufficient evidence which, if true, establishes that you have satisfied all legal elements necessary to justify your conduct.

[3] Now it's the prosecutor's burden to attack your claim and convince the jury beyond a reasonable doubt that you did not act in justified self defense.

Let's go through that again.

In an ordinary criminal prosecution, the defendant doesn't have to say anything. He doesn't have to present any evidence. The entire burden falls on the prosecution. The prosecution has to prove all the elements of the crime beyond a reasonable doubt.

If the crime you're charged with is, for example, manslaughter, the prosecution must prove that you were there, you fired the gun, you intended to fire the gun (or were reckless), and the guy you shot died. In the typical manslaughter prosecution, the defendant might by way of his defense try to plant a seed that you weren't there (alibi defense), or that someone else might have fired the gun, or that it was an accident. In each case the defendant doesn't have to actually prove his defense. He merely has to create a reasonable doubt in the minds of the jurors.

So in such cases, it probably doesn't pay for you to say anything to the police, at least early on. Let them do the work of trying to amass evidence to prove the case against you. There's no reason for you to help.

But if you are going to be claiming self defense, you will wind up admitting all the elements of the crime. You will admit that you were there, that you fired the gun, and that you intended to shoot the decedent. Your defense is that your use of lethal force in self defense satisfied the applicable legal standard and that, therefore, it was justified.

So now you would have to affirmatively present evidence from which the trier of fact could infer that your conduct met the applicable legal standard justifying the use of lethal force in self defense. In some jurisdictions, you may not have to prove it, i. e., you don't have to convince the jury. But you will at least have to present a prima facie case, i. e., sufficient evidence which, if true, establishes that you have satisfied all legal elements necessary to justify your conduct.

Then it will be the prosecutor's burden to attack your claim and convince the jury (in some jurisdictions, he will have to convince the jury beyond a reasonable doubt) that you did not act in justified self defense. And even if you didn't have to prove self defense (only present a prima facie case), the more convincing your story, and your evidence, is, the harder it will be for the prosecutor to meet his rebuttal burden.

Most criminal defense lawyer, including some of the top ones and generally including public defenders, have had little or no experience handling a self defense case. It's such a different animal from the usual "I didn't do it and you can't prove I did" defense in most criminal cases. If you are claiming self defense, you will want a lawyer with experience handling self defense cases.

See also: Defending the Self Defense Case by Lisa J. Steele.

[TheGoldenState]

See Penal Code 197 as quoted by Bartholomew Roberts (emphasis added):
Quote:
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;

Im following, BUT, i refer back to this

A bare fear of the commission of any of the offenses mentioned
in subdivisions 2 and 3 of Section 197, to prevent which homicide
may be lawfully committed, is not sufficient to justify it. But the
circumstances must be sufficient to excite the fears of a reasonable
person, and the party killing must have acted under the influence of
such fears alone.

Being that fear alone is not enough but must be included when using deadly force. In regards to my purposed situation, I AM fearful that the family members life is in danger, BUT that is all i have. I dont see a weapon, hes not threatening (verbal), just making his way (rapidly) up stairs into the general area of another person. THis can also be said of my other purposed situation of an intruder making slow but steady progress towards me.

So in such cases, it probably doesn't pay for you to say anything to the police, at least early on. Let them do the work of trying to amass evidence to prove the case against you. There's no reason for you to help.

The theory that I prescribe to! I know I would be extremely rattled and wouldnt want to get into much details right away.


I appreciate your time and obvious wisdom here.

[DogoDon]

Excellent post, fiddletown, thanks very much. I'm printing that out to save (hope I never need it, though).

DD

[Frank Ettin]

Originally Posted by TheGoldenState

The theory that I prescribe to! I know I would be extremely rattled and wouldnt want to get into much details right away.

To clarify, "in such cases" referred to situations in which one is not claiming self defense. If one is claiming self defense, his interests are most likely to be best served by saying what Massad Ayoob has suggested, and only that.

Yes, if will be hard to not say more. But if you prepare, you should be able to control yourself in the aftermath of a high stress situation.

[Bartholomew Roberts]

Being that fear alone is not enough but must be included when using deadly force.

It says that bare fear alone is not enough, that the "circumstances must be sufficient to excite the fears of a reasonable person." So the hypothetical "reasonable person" must agree that in that situation they also would have a fear of felony/violence/etc.

Next we would look to Section 198.5 (see above quote of the law).

If the person has unlawfully AND forcibly entered and you KNOW that the person has unlawfully and forcibly entered, then California law will automatically presume you have a reasonable fear.

[TheGoldenState]

Thanks, Barth for the clarification.

If the person has unlawfully AND forcibly entered and you KNOW that the person has unlawfully and forcibly entered, then California law will automatically presume you have a reasonable fear.

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?

[Bartholomew Roberts]

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?

I am in no way qualified to comment on California law. To give an example, if the only statute I had found was Penal Code Section 197, we'd be having a MUCH different discussion than this one. Kind of like the quote you found about the Ceballos case misled you.

I can make a wild guess at interpretation on an individual part of a statute; but I have no idea how the different statutes fit together as a whole or even what those other statutes might be. There might be another law out there that changes my interpetation entirely. This is why when people want good answers to legal questions, they ask lawyers who are licensed to practice law in that state instead of Internet firearms forums.

However, if you just want a spitball, off-the-cuff, no legal research done type of answer that is worth less than what you paid for it, then it looks to me like if there is no foricble entry, then you do not get the presumption of reasonable fear. I'd also say it looks like you have to KNOW about the unlawful and forcible entry before you shoot to get that presumption; but like I said, there could be case law or a statute out there that I am completely unaware of.

[Frank Ettin]

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?...

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):

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....

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?

[TheGoldenState]

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 know 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 know, 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?

Here is where the confusion and delving begins for me. The unlawfully part-fine, easy, done. The forcibly part is another story. I often leave back doors and windows open late until i go to bed. One would not have to force their way in. So the use of deadly force MUST include both contingencies? I certainly hope not!

[Frank Ettin]

Originally Posted by TheGoldenState

Here is where the confusion and delving begins for me. The unlawfully part-fine, easy, done. The forcibly part is another story. I often leave back doors and windows open late until i go to bed. One would not have to force their way in. So the use of deadly force MUST include both contingencies? I certainly hope not!

The law is what it is. And it really does do a lot to protect one's right to defend himself and his family in his home.

Note that if the one can establish that he knew or had reason to believe that the intruder entered his home unlawfully and forcibly, he's entitled to a presumption that he (the resident) held a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household. That means he doesn't have to provide additional evidence that he did have such fear. His fear is presumed simply because he knew or had reason to believe that the intruder entered his home unlawfully and forcibly.

If the resident can't however show that he knew or had reason to believe that the intruder entered his home unlawfully and forcibly, that only means that he can't take advantage of the presumption. That doesn't mean that he can't, with other evidence, try to make a case that a reasonable person in like circumstances would have held a fear of imminent peril of death or great bodily injury to self, family, or a member of the household. So he still has the opportunity to demonstrate that his use of lethal force in self defense was justified, even if he can't necessarily show that he knew or had reason to believe that the intruder entered his home unlawfully and forcibly.

In other words, if one is attacked in his home and he can show that his attacker entered his home unlawfully and forcibly, he can show justification without necessarily showing that he was in fear of imminent peril. But if he can't show that he knew or had reason to believe that his attacker entered his home unlawfully and forcibly, the resident is in roughly the same position he would have been if he had defended himself from an attack on the street; and to show justified use of lethal force, the defender would thus need to show that a reasonable person in like circumstances would have held a fear of imminent peril.

[Aguila Blanca]

Originally Posted by fiddletown

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 know that the person against whom you used force did enter unlawfully and forcibly.

To pick nits here, fiddletown, the second half of your statement doesn't match the first part ... or the law. To gain the presumption, one does not have to have reason to "know" that an unlawful and forcible entry has occurred, he only has to have reason to "believe" that an unlawful and forcible entry has occurred.

IANAL, but it seems to me that this distinction is critical. If I awaken at oh-dark-thirty to find a strange man (or two or three) standing in my bedroom, I know it's my house and I know I didn't give anyone permission to be there, so can we take the unlawful part as a stipulation? That leaves the forcible entry part. I cannot know with 100 percent certainty that I remembered to lock all the doors and windows ... but that has been my habit for the past 25 years, so I certainly "reasonably believe" that all doors and windows were locked and that the strangers must have broken in.

[Frank Ettin]

Originally Posted by Aguila Blanca

To pick nits here, fiddletown, the second half of your statement doesn't match the first part ... or the law. To gain the presumption, one does not have to have reason to "know" that an unlawful and forcible entry has occurred,...

You're correct, AB. My mistake. As I recall, I was composing that post as I was getting ready to leave for an appointment. I was rushing, and not as careful as I should have been. In any case, the correct standard is "reason to believe."

Edit: And I see that I picked up the error in a second post (which I wrote standing up on a display computer in an Apple store). I've edited my past posts to correct the errors and hope I got them all. Thanks for calling it to my attention.