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People v. Hughes3/28/2002
her residence does not alter the fact that the victim was neither inside the residence nor making any attempt unlawfully or forcibly to enter appellant's home at the time she was shot.
Nor is it material that the victim may have unlawfully "entered" appellant's residence sometime earlier in the day by reaching through the security bars of appellant's window to strike appellant, and again later by striking appellant with her hand while appellant was sweeping just inside her security gate. Viewing the evidence of these incidents most favorably to appellant, it is again undisputed that appellant's use of deadly force did not occur until later, after the victim had walked away from appellant's residence. By its own terms, the statute requires that the use of deadly force by the resident defendant must be against an unlawful intruder who has entered or is forcibly threatening to enter the residence. (People v. Brown, supra, 6 Cal.App.4th at pp. 1495-1497.) Once Dorothy removed her hand from behind the security bars of appellant's windows or the security gate in front of appellant's door, any intrusion was over, and the circumstances essential to the applicability of section 198.5 no longer existed. Section 198.5 cannot be invoked to justify appellant's subsequent use of force against Dorothy at a point in time when no forcible entry or attempted forcible entry was taking place.
In short, " he plain language of section 198.5 shows the statute was intended to give residential occupants additional protection in situations where they are confronted in their own homes by unlawful intruders such as burglars." (People v. Brown, supra, 6 Cal.App.4th at p. 1495.) The statute was not intended to justify vigilante use of deadly force against an individual whom a defendant thinks has intruded into his or her residence in the past, or fears may so intrude in the future. The trial court properly did not give the instruction in this case.
Disposition
The judgment is affirmed.
We concur:
Parrilli, J.
Pollak, J.
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