CALCRIM No. 3477. Presumption That Resident Was Reasonably Afraid of Death or Great Bodily Injury (Pen. Code, § 198.5)
Judicial Council of California Criminal Jury Instructions (2023 edition)
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3477.Presumption That Resident Was Reasonably Afraid of Death
or Great Bodily Injury (Pen. Code, § 198.5)
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;
AND
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].
New January 2006; Revised March 2017, September 2020
BENCH NOTES
Instructional Duty
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].)
Give this instruction when there is evidence that a resident had a reasonable
expectation of protection against unwanted intruders. People v. Grays (2016) 246
Cal.App.4th 679, 687-688 [202 Cal.Rptr.3d 288].
The second sentence of the great bodily injury definition could result in error if the
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prosecution improperly argues great bodily injury may be shown by greater than
minor injury alone. (Compare People v. Medellin (2020) 45 Cal.App.5th 519,
533-535 [258 Cal.Rptr.3d 867] [the definition was reasonably susceptible to
prosecutor’s erroneous argument that the injury need only be greater than minor]
with People v. Quinonez (2020) 46 Cal.App.5th 457, 466 [260 Cal.Rptr.3d 86]
[upholding instructions containing great bodily injury definition as written].)
AUTHORITY
• 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.
• Definition of Residence. People v. Grays (2016) 246 Cal.App.4th 679, 687-688
[202 Cal.Rptr.3d 288].
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Defenses, § 76.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justifications, §§ 73.11[1], 73.13 (Matthew Bender).
3478-3499. Reserved for Future Use
CALCRIM No. 3477 DEFENSES AND INSANITY
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© Judicial Council of California.
