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People v. Hughes3/28/2002
rebuttal, the prosecution offered the testimony of Curtis J., who was 17 when his mother Dorothy was killed. He had previously been convicted for possession of an assault weapon and was on parole at the time of trial in this matter. Curtis J. claimed to have been on friendly terms with appellant and her family, and was often in their residence. He denied keeping cocaine or a weapon at appellant's house. However, he acknowledged selling drugs at the corner of Newcomb and Newhall with his cousins. He tried to avoid his mother when she was drunk. Dorothy would come to the window of appellant's house and tell him to come outside when he was there.
On the day of the incident, Curtis J. was working on his car at the corner. His mother and aunt Sandra approached him while appellant swept outside her residence. When appellant and Dorothy argued and yelled at each other and started a "little cat fight," Curtis J. and Sandra separated them and broke up the fight. Appellant ran into her house for two to three minutes. As Curtis J. walked around the corner to his car, he glanced back and saw appellant's arm extending out of her gate, pointing a gun at Dorothy and pulling the trigger. Although at trial, Curtis J. testified that appellant said "I told you I was gon' get you, bitch," Curtis J. did not mention that appellant had said anything after the shot was fired when he was interviewed by Inspector Hendrix the day after the shooting.
On defense rebuttal, appellant's mother testified that when she saw Curtis J. at the police station on May 22, 1997, and asked him what had happened, he replied that "he didn't know."
Appellant was charged with murder with the personal use of a firearm. (Pen. Code, §§ 187, 12022.5, subd. (a).) At the conclusion of trial, the jury found appellant guilty of involuntary manslaughter, and found the firearm allegation true. Appellant was sentenced to the low term of two years plus three years for the firearm use, for a total prison term of five years. This appeal timely followed.
Discussion
Appellant contends the trial court was required to instruct sua sponte that because her use of deadly force was within her residence, she was entitled to the presumption set out in section 198.5 that she was in reasonable fear of imminent peril of death or great bodily injury; and that the trial court's failure to give this instruction was reversible constitutional error. Appellant's contention fails because the subject instruction is clearly inapplicable on the factual record of this case.
Section 198.5, enacted in 1984 and entitled the Home Protection Bill of Rights, provides 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." (§ 198.5, added by Stats. 1984, ch. 1666, § 1, italics added.)
As appellant concedes, there was never any request that a jury instruction be given based on the section 198.5 presumption. Appellant nevertheless argues that the trial court was required to give such an instruction sua sponte, despite the absence of any request therefor. Under the facts presented here, we conclude that appellant was not entitled to s
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