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)Download PDF
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
3. The intruder was not a member of the defendant’s household or
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
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
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].)
• 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,
• Definition of Residence. People v. Grays (2016) 246 Cal.App.4th 679, 687-688
[202 Cal.Rptr.3d 288].
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, 73.13 (Matthew Bender).
3478-3499. Reserved for Future Use
CALCRIM No. 3477 DEFENSES AND INSANITY