 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
People v. Hughes3/28/2002
uch an instruction. (People v. Silvey (1997) 58 Cal.App.4th 1320, 1326-1328 & fn. 6; People v. Owen (1991) 226 Cal.App.3d 996, 1004-1007.)
A trial court has a sua sponte obligation to instruct the jury on general principles of law relevant to the issues of the case, usually described as those which are "commonly or closely and openly connected to the facts before the court and that are necessary for the jury's understanding of the case. [Citations.]" (People v. Montoya (1994) 7 Cal.4th 1027, 1047; see also People v. Hood (1969) 1 Cal.3d 444, 449; People v. Silvey, supra, 58 Cal.App.4th at p. 1327.) Under the facts of this case, section 198.5 cannot be described as such a principle of law.
Section 198.5 places on the prosecution the burden of proving beyond a reasonable doubt that the defendant did not have a reasonable fear of death or great bodily injury in using deadly force to defend his or her residence from an unlawful and forcible intrusion. Here the jury was instructed on the presumption of innocence, the prosecution's burden of proof beyond a reasonable doubt, the definitions of murder and manslaughter, excusable and justifiable homicide, and the right to self-defense against assault. As a result of these instructions the jury was already informed of the prosecution's duty to prove beyond a reasonable doubt the absence of any justification or excuse. Unless there was substantial evidence to support a defense based specifically on section 198.5, the trial court was not required additionally to inform the jury sua sponte of the statutory presumption under section 198.5 that a residential intruder creates a reasonable fear of death or great bodily injury in the occupant. (People v. Wickersham (1982) 32 Cal.3d 307, 326; People v. Silvey, supra, 58 Cal.App.4th at p. 1328.)
There was no such evidence to support the application of the section 198.5 presumption in this case. For section 198.5 to apply, four distinct evidentiary elements must be present. First, the defendant must have used deadly force-that is, "force intended or likely to cause death or great bodily injury"- within his or her residence. Second, the force must have been used against a person who was not a member of the defendant's family or household. Third, the person against whom the force was used must either have unlawfully and forcibly entered the defendant's residence, or be in the act of so entering the residence. Fourth, the defendant must have known or had reason to believe that an unlawful and forcible entry had occurred or was occurring. If all of these elements are present, the rebuttable presumption is in effect that the defendant had a reasonable fear of imminent peril of death or great bodily injury at the time he or she used the deadly force against the intruder. By the same token, unless each of these elements is present in a given case, no presumption is in effect. (People v. Curtis (1994) 30 Cal.App.4th 1337, 1361-1362; People v. Brown (1992) 6 Cal.App.4th 1489, 1494-1499; CALJIC No. 5.44.)
Here, there is no evidence that appellant used deadly force within her residence against a person who was either also within the residence or attempting by force to enter the residence. To the contrary, the uncontradicted evidence showed that the victim was standing on the public sidewalk talking with family members some 8 to 15 feet away from appellant's door when appellant opened the front door of her residence, emerged from her home, extended her arm holding a loaded gun, shot the victim in the head, and then went back inside her house, closed the door and disposed of the weapon in the neighbor's back yard. The fact appellant herself may have been standing just inside the iron security gate of
Page 1 2 3 4 5 6 California DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|