3477. Presumption That Resident Was Reasonably Afraid of Death or Great Bodily Injury
The law presumes that the defendant reasonably feared imminent death or great bodily injury to (himself/herself)[, or to a member of (his/her) family or household,] if:
1. An intruder unlawfully and forcibly (entered/ [or] was entering) the defendant's home;
2. The defendant knew [or reasonably believed] that an intruder unlawfully and forcibly (entered/ [or] was entering) the defendant's home;
3. The intruder was not a member of the defendant's household or family;
4. The defendant used force intended to or likely to cause death or great bodily injury to the intruder inside the home.
[Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.]
The People have the burden of overcoming this presumption. This means that the People must prove that the defendant did not have a reasonable fear of imminent death or injury to (himself/herself)[, or to a member of his or her family or household,] when (he/she) used force against the intruder. If the People have not met this burden, you must find the defendant reasonably feared death or injury to (himself/herself)[, or to a member of his or her family or household].
The court has a sua sponte duty to instruct on presumptions relevant to the issues of the case. (See People v. Hood (1969) 1 Cal.3d 444, 449 [82 Cal.Rptr. 618, 462 P.2d 370]; but see People v. Silvey (1997) 58
Cal.App.4th 1320, 1327 [68 Cal.Rptr.2d 681] [presumption not relevant because defendant was not a resident]; People v. Owen (1991) 226 Cal.App.3d 996, 1005 [277 Cal.Rptr. 341] [jury was otherwise adequately instructed on pertinent law].)
Instructional Requirements. Pen. Code, § 198.5; People v. Brown (1992) 6 Cal.App.4th 1489, 1494-1495 [8 Cal.Rptr.2d 513].
Rebuttable Presumptions Affecting Burden of Proof. Evid. Code, §§ 601, 604, 606.
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Defenses, § 73.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73, Defenses and Justifications, §§ 73.11, 73.13 (Matthew Bender).
(New January 2006)