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;
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.]
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).
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.
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 333].
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].
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[c] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, § 142.01[b] (Matthew Bender).
(New January 2006)