Published by The Law Offices of Bruce Colodny
By Bruce Colodny, The California Gun Attorney
Copyright © 2017
You probably know that California has some of the most restrictive state gun laws in the United States, but did you know that California actually has a form of “Castle Law”? It is found in California Penal Code “Home Protection Bill Of Rights” and it reads as follows:
“Any person using force intended or likely to cause death or great bodily injury within his or her residence shall be presumed to have held a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household when that force is used against another person, not a member of the family or household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred.
As used in this section, great bodily injury means a significant or substantial physical injury.”
The California appellate courts have interpreted this section as creating a “rebuttable presumption” that anyone who employs deadly force against an intruder within his residence has done so in reasonable fear of imminent peril of death or great bodily injury. So what does this “rebuttable presumption” mean if I shoot an intruder in my home? It means that if you are charged and there is evidence presented at your trial that you shot a non-household member who you knew or reasonably believed had made an unlawful forcible entry into your residence, it is presumed that you had a reasonable fear that you, a family member or other member of your household was about to be killed or suffer great bodily injury and thus your use of deadly force was lawful, however, the DA will be allowed to present evidence to the contrary and argue to the jury that they can and should disregard the presumption that you acted lawfully when you shot the intruder.
To put it another way, the California Home Protection Bill of Rights establishes a presumption that the very act of an unlawful forcible entry by a non-family or non-household member entails a threat to the life and limb of the homeowner and gives the benefit of the doubt in such cases to the resident, but again, subject to the jury agreeing with a DA’s argument that there was evidence to the contrary and they should disregard the presumption and find the resident guilty.
It is important to keep in mind that California’s Home Protection Bill of Rights may not help you in various shooting situations. For example, a California appellate court held that the unauthorized intrusion onto an unenclosed front porch, which had no signs, gates, or other indications that the occupant did not expect intrusion into that area, did not require the trial judge to instruct the jury on the Home Protection Bill of Rights.
Consider also that a jury that was instructed on the Home Protection Bill of Rights might still convict you in the following situation: After waking up at 3 a.m. to the sound of breaking glass you come downstairs armed and confront the intruder who, after seeing the gun in your hand, turns around to face the wall and puts his hands up.
So far, so good, but it turns out that the intruder was the college kid who lives down the street in the same model tract home, who got drunk on a Saturday night and couldn’t find his keys, so he broke the window next to your front door to reach in to turn the deadbolt to let himself into what he thought was the right house. He then realized what he had done so he lowered one of his hands to reach for his wallet mumbling something like “I’m sorry, I’ll pay for a new window” but you thought he was reaching for a gun and you fire a fatal shot into his back.
Blood from the exit wound in his chest is smeared down the wall as he pitched forward and slumped to the floor. So you can expect the DA to argue to the jury that while you initially may have had the right to self-defense, it had ended because the kid had either surrendered or was attempting to flee and no longer presented a danger, hammering all along that you shot him in the back.
It could get worse. What if you had several drinks in the privacy of your own home before you went to bed? You were over 21 and had a right to drink in your own home but, over the objection of your attorney, the judge allows the testimony of an investigating officer’s that you had a strong odor of alcohol on your breath, bloodshot red eyes, slurred speech, etc. The point is that while California’s Home Protection Bill of Rights is potentially very useful if you shoot an intruder in your residence, it is not an ironclad “stay out of jail” guarantee.
If you keep a gun in your home, here are some basic things to keep in mind if you ever have to shoot an intruder:
- You may be charged with a serious felony crime and you may be sued by the intruder or his survivors.
- Phone calls to 911 are always recorded and are often played back in a courtroom before a jury. So what should be said during the 911 call? The basics are, “There has been a break in and a shooting at (address), Send an ambulance. I am the resident. I am a (male/female, age, race, description of clothing worn). The other resident(s) is/are (male/female, age, race, description of clothing worn). Please hurry.”
- In a best case scenario, the 911 call will not be made by the shooter but rather by another resident (unless you live alone).
- If you call 911, anything you say beyond the basics may increase your chances of criminal prosecution and may hinder your defense.
- After the 911 call, you should call an attorney.
Remember that you have no duty to talk to police and you have the right not to incriminate yourself (and I will add, as a caution, one of my favorite sayings, “The spoken word is like toothpaste; once it comes out, it does not go back in.”). The Fifth Amendment right to remain silent is a personal right which must be invoked by the suspect, rather than by the suspect’s attorney.
The police will try to question you, so remember these words, “I invoke my right to remain silent and my right to an attorney.” Law enforcement officers are trained and skilled in effective interrogation methods so do not swayed by their promises or threats.
There is a substantial likelihood that you will be taken into custody so also be aware that any phone calls you make from jail will be recorded so if you must make phone calls from jail, keep your words to a minimum, for example, “I have been arrested. I am in the (name of county) jail and my booking number is. Please call my attorney.”
You should not discuss your case with law enforcement officers, other inmates or your visitors (except your attorney). A qualified criminal defense attorney can investigate and interview you, then decide how to present the evidence in the manner most favorable to your defense. If you are jailed, it may take time to arrange for your attorney to assist in obtaining your release from custody.