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/
New January 2006
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
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.
CALCRIM No. 3477, Presumption That Resident Was Reasonably Afraid of Death
or Great Bodily Injury.
CALCRIM No. 506 HOMICIDE