Return to CALJIC Part 5-8 – Contents
F 5.42 n1 Defense Of Habitation: Definition Of “Habitation.”
PC 197 provides that homicide is justifiable when committed against a person who “intends and endeavors… to enter the habitation of another….” CJ 5.42 defines habitation as a “home or dwelling.” However, there may be cases where further definition of the term is needed. For example, while the term “home or dwelling” seems to denote a building or structure, a habitation could also include other less permanent habitations such as a hotel room, tent or a temporary sleeping area, such as might be utilized by a “homeless” person. (People v. McCleod (97) 55 CA4th 1205, 1217 [64 CR2d 545].)
F 5.42 n2 Defense Of Home: Not Applicable To Non-Resident.
People v. Silvey (97) 58 CA4th 1320 [68 CR2d 681] held that PC 198.5 — defense of home is presumptively reasonable — does not apply to a person who is present in the home but not a resident. However, neither the majority nor dissenting opinion addressed the crucial question of what constitutes a person’s residence. This issue was addressed in the context of PC 290 in People v. McCleod (97) 55 CA4th 1205 [64 CR2d 545]. McCleod concluded that the term “residence” does not require sua sponte definition. However, in circumstances where the defendant’s status as a resident is unclear, such as in Silvey, specific definition of residence may be appropriate especially when requested. (See generally FORECITE PG CHK III(B) [definition of nontechnical term may be given on request].) McCleod suggested that “residence…denotes any factual place of abode of some permanency, that is, more than a mere temporary sojourn…. [citations].” (McCleod 55 CA4th at 1217.)
F 5.42a
Defense Of Home: Presumption Of Reasonable Fear
(PC 198.5)
SUBSEQUENT HISTORY: In the July 1998 Pocket Part, the CALJIC Committee added CJ 5.44 [“Presumption Of Fear Of Death/Great Bodily Injury (PC 198.5).]
*Add to CJ 5.42:
Any person using force intended or likely to cause death or great bodily injury within [his] [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, provided that:
1. The force was used against another person not a member of the family or household.
2. The intruder unlawfully and forcibly entered the defendant’s residence.
3. The defendant knew or had reason to believe an unlawful and forcible entry occurred.
Points and Authorities
PC 198.5 enacted in 1984 and entitled “The Home Protection Bill of Rights” provides that “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 …”
In People v. Owen (91) 226 CA3d 996, 1003-04 [277 CR 341], the Court of Appeal held that PC 198.5 does not require the intruder to be a stranger to the resident — the intruder need only be a non-member of the family or household who unlawfully or forcefully entered the residence.
Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See generally, FORECITE PG VII(C).]
NOTES
Sua Sponte Duty To Instruct Per PC 198.5. People v. Owen (91) 226 CA3d 996, 1004-05 [277 CR 341] held that there is no sua sponte duty to instruct upon PC 148.5. People v. Birt DEPUBLISHED (92) 10 CA4th 1538 [13 CR2d 612] disagreed with Owen and found a sua sponte duty to instruct on the principle embodied in PC 198.5. In so doing, Birt recognized that neither the standard CALJIC instructions nor the argument of counsel could substitute for a trial court telling the jury that the defendant is presumed to have acted in self-defense. “Instruction thereon by the trial court would weigh more than a thousand words from the most eloquent of defense counsel.” (Birt DEPUBLISHED 10 CA3d at 1543.)
