*1 May C008191. Third Dist. 1992.] [No. PEOPLE,
THE Plaintiff and Respondent, BROWN,
JOHNNIE Dеfendant and Appellant. [Opinion partial publication.*] certified for Court, 976(b) California *Pursuant Rules of rules opinion is certified for except parts 2 and 3 of the Discussion. publication *2 Counsel
D. Nees for Defendant Kapp Appellant. General, Williamson,
Daniel E. Chief Assistant Lungren, Attorney George *3 General, General, Attorney Arnold O. Assistant J. Robert Overoye, Attorney Hamilton, General, Jibson and Jane Plaintiff and Mary Attorneys Deputy Respondent.
Opinion DAVIS, convicted defendant with a and A jury deadly weapon of assault J. firearm, found he bodily used a but did inflict personally great not personally 12022.5, Code, (a), injury (Pen. (a)(2), on victim. subds. subd. §§ 12022.7; Code, (d), all further section are the Penal unless references to otherwise There defend specified.) was evidence the victim entered showing ant’s front and advanced porch toward defendant with a hammer raised back at shoulder-height after the argued two had about a contract under which the victim was to perform work at defendant’s house. At this landscaping point, defendant, home, standing of in the doorway leg. his shot the victim to According defendant did so fear for his life.
In the published portion of this we hold that defendant was not opinion, 198.5, entitled to a instruction requested based on section the “Home Pro- Bill tection of Rights.”1 Although there was evidence that the victim’s entry forcible, onto defendant’s front porch unlawful and an onto a front entry like porch defendant’s does not constitute into a residence as required under section 198.5. The in this an porch case is unenclosed front porch, without any signs, gates or other indications that would tend to show the residential did occupant not expect intrusion into that area. The is connected to a which is walkway, connected to a which turn is driveway, connected to a public sidewalk. There is a adjacent doorbell to the front door signal to the arrival of persons (A on the porch. photograph attached as an appendix.) Using this court in principles developed by provides: 1Section “Any person 198.5 using force likely great intended or to cause death or bodily injury within his or her residence presumed shall be to have held a reasonable fear of self, peril grеat imminent bodily death or injury family, or a member of the household household, when that force is used person, another not a family member of the unlawfully forcibly unlawfully enters or has forcibly entered the residence and the person using the force knew or had reason to believe that an unlawful and forcible section, [j[] As used great occurred. in this bodily injury means a significant substantial physical injury.” that, 119], we conclude Nible circumstances, have a reasonable does not under a residential occupant these onto the intrusion from unauthorized to an instruction occupant entitle a defendant thus there does not situation, left with the In this based on section 198.5. on self-defense. standard instructions the trial court we conclude unpublished portion opinion, aas imprisonment
erred in that section 1203.095 determining required its discre- We remand so trial court can exercise condition of probation. (b). subdivision case” of section tion under the “unusual provision in sustaining did the prosecution’s we court not err conclude trial Finally, based testimony elicit attempt to defensе counsel’s objection evidentiary on the victim’s records. hospital
Background and a a homeowner What a minor contract between began dispute as in the leg. shooting bricklayer the the ended with homeowner bricklayer homeowner, defendant, the a month the incident question, About before Neal, was to lay Neal and the entered into contract. bricklayer, Jason home, for labor defendant was to pay brick flower bed at and defendant’s a two-week be over completed and certain materiаls. contract was to that time. at the end of defendant had April arriving because period guests 14, regard- disagreement Neal and had some minor April Prior defendant Neal was finish the ing job. Neal’s but performance, 14, 11:30 a.m. to On Neal at defendant’s house around April arrived Butler, to help his This time he an acquaintance, continue work. brought Neal, happened him. of what gave Butler and defendant accounts varying next. Testimony
Neal’s 14, as on defendant came As soon Neal arrived at defendant’s house April earlier out the аnd told Neal he Neal was to be there garage going thought Defendant told Neal he tools and leave without morning. get should his finish, the finishing job. go Defendant then said Neal could ahead (defendant) because he had the next Defendant then company arriving day. his mind the again get porch; and told Neal to his tools from changed defendant also he was Neal had stored defendant’s keeping said tools because he had for them. paid backyard acknowledges “disagree- Neal he had a point,
At this that defendant and Howеver, Neal maintained it more than a anything ment.” never escalated to that, After shut the door and garage “man-to-man discussion.” defendant from the them went into his house. Neal then took his tools beside porch, put car, in his his and walked back with a hammer hand. When toward house bed, he he began knocking layer reached the flower off bricks top he was turned being oblong because at fired. Neal testified was angry house, with his towards the front door of defendant’s approximately back seven feet from the door. house,
After defendant walked into Neal did not see defendant again until he heard after off. He did hear gun go say anything not defendant other his name than before he heard the Neal denied gunshot. threatening defendant. attacking Testimony
Butler’s When Butler and Neal arrived defendant’s house on defendant April home, told pack Neal to “he up go his tools Neal and through.” had defendant then Neal got “heated discussion.” some tools from the car, them porch and set then his walked back toward the with After empty hands. defendant went into the Neal rest garage, picked up laid, of his hitting tools had “he starting bricks he saying, [defend- *5 it, wasn’t to him going so he was take it pay going ant] out.” [Neal] Neal facing was the while front door he was the Defendant hitting bricks. better,” came to the screen door and told Neal in “you then shot Neal the leg. hammer, defendant, Neal never to throw the attempted attack or strike the anything but in bricks the flower never bed. Neal tried to enter the house. Butler hammer, testified he could not remember high how Neal the swung but Neal was intent on hammering bricks. Testimony
Defendant’s On Aрril defendant reminded agreement Neal their was the work weeks, would be finished within two which meant Neal until only had Yet, next day to complete job. Neal had delivered the just balance of bricks the Defendant previous day. did Neal not think could finish time, short he so told to get Neal his and tools that he would find go, someone else to finish the job.
At this Neal point picked up “brick walked carry,” over to defendant and started it waving around. Defendant further backed garage and warned he Neal was to close the going door. When Neal gаrage left the bricks, and garage a stack passed he kicked angrily down. Once pile house, Defendant hurried noise.” “hammering defendant heard a inside the bed; defendant at the flower away and saw Neal hammering to the front door like, it “Cut out! something Stop! the screen door and said then started out Stop! Stop!” out, up and started Neal looked defendant the screen door opened
Once hammer, with the then He raised back up swung and saw defendant. hand, raised to his right with the hammer his came off the flower bed fast, defеndant, “not towards moving He whirled around and began shoulder. and was “raging” Neal was like a animal deliberate.” Defendant testified but in a mood.” “very antagonistic himself stood between
When defendant realized that the screen door only Neal, He door. was the screen closing he back inside and tried jumped afraid, himself. protect Neal and stop and concerned with how to very only door, defendant screen with the on the Because of some problem hydraulic Defendant testified it fly open. he had to hold onto it or еlse would believed left, door, to his which was he could reach around the wooden not So, it, holding while of the screen door. letting go time to shut without handle, was which handgun, defendant picked up onto the screen door time, had Neal By under a on a room divider next to the door. cloth lying level the porch, to the first up over the flower bed and had come stepped gun through Defendant fired the five feet from defendant. approximately door, in the hitting leg. screen Neal with afraid and “knew to attack going [him]
Defendant was [Nеal] to shoot down at the that hammer . . . .” Defendant testified intended Neal, him. stop and sidewalk. He wasn’t to hit but rather ground trying defendant shot him. leg Neal’s was on the when right
Discussion Section 198.5 Requested Jury 1. Instruction on Defendant’s Section enacted in and entitled the “Home Protection 1984 Bill Rights,” occupant creates a rebuttable that a residential presumption he has reasonable fear of death or when or she uses great bodily injury deadly against force an unlawful and forcible intruder into the residence. 1, ante; 996, 1003, (See People (1991) fn. see also v. Owen 226 Cal.App.3d 341].) 1005 For section 198.5 to four elements must be Cal.Rptr. apply, [277 residence; met. There must be an unlawful and forcible into a entry entry household; who not must be someone a member of the or the by family (as 198.5) occupant must have used force defined “deadly” residential §
1495 residence; within the and the residential finally, the victim against entry. and knowledge must have had unlawful forcible These four elements would the heart of instruction based on any comprise Owen, (See 1007.) supra, section The trial court Cal.App.3d 198.5. 226 under because the court refused defendant’s to instruct section 198.5 request found no evidence of into the “residence.” “entry”
It is there was evidence that Neal’s onto the showing entry undisputed forcible; was unlawful and Neal was not a member of defendant’s household; that defendant’s constituted use of family firing gun 198.5; force under section knew of Neal’s unlaw deadly defendant ful entry, since he the property forcible testified ordered Neal off then saw him Neal with a hammer and told approach menacingly stop.
The issue narrows to Neal’s еntry whether onto defendant’s front words, an entry constituted into defendant’s In other is an residence. entry (a onto an unenclosed front no porch that has access barriers residence, sidewalk) from a an into a that a public entry so residential occupant who uses force an intruder deadly unlawful and forcible entitled, becomes upon to a instruction based on section request, jury 198.5? We conclude there was no residential here.
This issue us to examine the requires of the term “residence” scope section it 198.5 аs relates to a porch. language front of section plain 198.5 shows the statute was intended to give residential additional occupants situations where are confronted in their own homes they therefore, unlawful such intruders as It is burglars.2 to look at appropriate, relevant cases to determine whether there residence in this case. we note
Preliminarily, that California’s definition of bur statutory glary law, than broader the common law definition. Under California breaking 709, is no longer (People (1975) required. v. 15 Cal.3d Gauze 773, Nible, 1365]; 712-713 Cal.Rptr. People supra, [125 P.2d 843; at p. v. Mackabee 214 Cal.App.3d Furthermore, 183].) law California case has expanded residence, definition a burglarious into a building or to encom where pass situations be burglary would under the inapplicable common law. *7 The California Courts of formed Appeal have various tests for determining of the terms scope “residence” or “building” (Cf. for burglarious entry. 1, Owen, 2See footnote ante. See also People supra, v. 226 at page 105 wherein Cal.App.3d the court legislative concluded the histоry confirmed this intention. 1496 827], (1988) Cal.Rptr. 639
People Cal.App.3d [243 v. 198 Ravenscroft ATM (ATM) card into automatic teller machine inserting [surreptitiously the exterior wall violated and secured flush with mounted inside bank statute]; People v. burglary of the bank and constituted airspace in wall 25 (1984) Cal.Rptr. 163 Osegueda Cal.App.3d Supp. 182] [hole [210 evidence for an electronics store sufficient adjoining between restaurant and People v. Coutu of store was finding airspace penetrated]; implied connected to (1985) Cal.Rptr. 171 192 Cal.App.3d [217 191] [storeroom аn integral interconnected with functionally a was dwelling by breezeway 73 Zelaya v. dwelling]; People Cal.App.3d [239 of the part storage and tenant hallway, [apartment building’s garage, Cal.Rptr. 289] build- integral part connected with and an rooms were functionally (1984) 158 Cal.App.3d [204 People Moreno ing’s living quarters]; connecting garage without door dwelling, attached to a [garage Cal.Rptr. 17] immediately with and interconnected functionally to interior of house house].) to other of the contiguous portions test this court formulated the reasonable expectation
We conclude purposes Since one of the one to here. appropriate employ Nible is the and the attendant unauthorized entry statute is to protect against intrusion, the reasonable to the violently that the will react danger the inhabitants of a structure on the protection test focuses expectation 844; (1989) 208 (200 at v. Wilson reasonably expect. Cal.App.3d In 422].) implicating situations Cal.App.3d a structure's is whether the nature particular purpose, proper question protection would some composition person expect is such that reasonable Nible, reasonable this court held that a from unauthorized intrusions. against some protection would believe a window screen provides intrusions, affords that even an door or window noting unauthorized understand some of such because reasonable expectation persons without may permission the social convention that not be crossed portals (200 844-845.) from structure’s owner. pp.
This for the issue safety-based reasоnable test is appropriate here gives section 198.5. This is because section 198.5 presented involving immi- defendant a he was in fear of rebuttable reasonable presumption when he nent used force within his residence danger deadly entered the (most intruder likely burglar) unlawfully forcibly “ Owen, As noted establishes a ‘that presumption residence. section 198.5
1497 the act very entry of forcible entails a threat to the life and limb of the ” (Owen, supra, 1005.)3 homeowner.’ 226 at Cal.App.3d p. this reasonable test the unen
Applying
to
expectatiоn
ordinary,
here,
closed front
at
porch
issue
we conclude that Neal’s
onto the
entry
porch
cannot constitute
entry
defendant’s
residence for
of section
purposes
A
198.5.4
reasonable
would not
person
from unauthorized
expect protection
Quite
intrusion onto this kind of porch.
Social
contrary.
convention
dictates that anyone
wishing
summon the occupant’s presence
gain
into the home
entry
must first enter the
is not a
porch.
portal.
barrier,
Absent “no soliciting” signs or a gate or some othеr
Girl Scouts
(1992)
398],
3In
v. Salemme
Cal.App.4th
2
775
court
Cal.Rptr.2d
recently
this
[3
person
held that a
who
a
selling
entered home for the purpose of
fraudulent securities could
Salemme,
be
burglary.
convicted of
In
the victim invited defendent into his home unaware that
defendent intended to sell him the
Relying
language
fraudulent securities.
on the
plain
459,
Gauze,
709,
section
as well as
supra,
(1979)
15 Cal.3d
People v. Pendleton
selling person nature, of this will come onto a front stranger likely porch any or person would not react The residential oсcupant reasonable permission. without a does not have We find that a residential occupant to this violently entry. a unauthorized intrusion onto from reasonable of expectation protection like the involved this case. front one porch of have an expectation that a reasonable would Defendant argues It is true immediate access to the home. of the threat of because protection (as it in this if door is open the the front that once on porch, particularly It nonеtheless a case), have access to the home. ready an intruder would in section recognized than that lesser qualitatively 198.5, the self-defense by which is covered adequately and a situation injury that reasonably bodily If believes occupant doctrine. a residential the porch, him her the intruder’s on presence to be inflicted upon about intruder, the force to the repel then the can use reasonable tried, (See instructions.5 if be entitled to self-defense would occupant, 82].) 202-204 Gleghorn (1987) 193 Cal.App.3d [238 Christopher Cаl.App.3d In re J. Defendant relies on There, held the Fourth District That reliance is misplaced. Cal.Rptr. 147]. burglary theft constituted a a with intent to commit carport into (Id. at pp. the house.” dwelling the was “an carport integral part because house on one attached to the 78-79.) dwelling was roofed and carport side; also, on two sides. in the rear with a half-wall it was enclosed majority’s that under the Christopher argued
The dissent In re J. within the would come overhanging even a with an roof analysis, uses this state- (102 81-82.) Defendant statute. pp. ment tо onto the instant constitutes argue Defendant, however, dissent—namely residence. misses the of the point test. so criticize the use of the majority’s “integral part dwelling” sitting on doing, potted plants the dissent uses an illustration some with the uncovered roof. Some other sit on overhanging potted plants of relevant given along complement 5CALJIC No. which was here with the full instructions, or habitation provides: person may self-defense “A defend home [his] [her] manner, against anyone to enter manifestly intends or endeavors in a violent riotous аppears any person that home or habitation and who to intend violence to in that home. The resisting by what would person may trespass amount of force which the use in such is limited circumstances, appear necessary to a to resist person, reasonable in the same or similar though might safely entry. violent or unlawful is not bound to retreat even a retreat [He] [She] force, may increasing proportion be made. resist force with it to the intruder’s [He] [She] persistence and apparent violence if the circumstances which are to the [homeowner] [lawful occupant] property] are such as would excite similar fears and a similar belief in [of person.” reasonable dissent, steps porch. analysis, to the Under thief majority’s argued is a thief. But when the potted plants steps petty who steals off *10 a miscreant “breaks the arm under the to plane sticking overhang get his (Id. 81.) on the he commits a The dissent felony.” argued plant a that the owner miss his the thief is still although may only petty plants, he them the or covered thief whether steals оff off the steps porch. in Christopher We need not take the In re J. because we controversy sides have concluded this safety-based reasonable test court expectation in formulated Nible is the to here. We hold a test appropriate apply residential does have a not reasonable from in unauthorized intrusion onto the kind of front this porch involved case, and a therefore onto such a does not constitute residence for section 198.5 denied defend- The trial court purposes. сorrectly ant’s request a based section which would have jury instruction on defendant a in given rebuttable that he fear presumption was reasonable imminent danger when used Jason Neal. deadly against force
2., 3*
Disposition We remand for in with in resentencing accord the views expressed opinion. all other respects, judgment is affirmed.
Sims, J., concurred. BLEASE, J., Acting P. Concurring I concurin the Dissenting. judg- ment and opinion except for I part as to which write separately.
The real issue is whether an front be “forcibly entered” may within the Penal mеaning of Code It section 198.5. arises out of alterca- tion which the defendant bricklayer shot his a dispute about brick flower bed. to According defendant’s at the time of testimony, shooting he was standing just inside the screen door of his house with a handgun. “Neal hammer,] bricklayer, had carrying [the over the stepped flower bed had come to the up first level of the [open] porch, approxi- feet five from mately defendant. fired Defendant the screen gun through door, Neal in hitting the leg.”
The defendant invokes the of Penal presumption Code section 198.5 as defense to the that he charge shot Neal with intention of inflicting great footnote, ante,
*See page 1489. intended force “using that a person It injury. provides pertinent part bodily her his or residence within great bodily injury cause death or likely to of death fear of imminent peril have held a reasonable be presumed shall self, is used another . . . when that force great bodily injury the residence and forcibly enters ... unlawfully . . . who person that an unlawful and had reason to believe the force knew or using added.) (Italics entry occurred.” forcible when a residence invoked only bemay
As emphasized presumption a residence. That limits what counts as entered. forcibly has been *11 and its conse- burglary, law of statutory with the majority’s preoccupation test, of language ignores of a reasonable expectations quent adoption an “unlawful it say entry; requires It does not “unauthorized” section 198.5. (the of Both the of section 198.5 entry.” subject and forcible within be used that the force habitation and occupancy) requirement ordinary that signify into which a “forcible occurred” a residence and hence does define the circumstances of entry law of does not is used to “Forcibly” subject entry. define the nature of the structure not force against and not to an intended use of “enters” modify signify occupant. could thereof that no to a structure or part
Section 198.5 has application words of a directed to give entered means of force. We are by not be is made usage unless some technical statute their sense ordinary pоpular Code entry” given of “forcible is ordinary meaning apparent. of a forcible “Every guilty Civil Procedure section 1159: house, doors, windows, or By . . . or other breaking parts 1. [f] into real any kind of violence or circumstance of terror enters or any upon definition, to a only part . . . .” section 198.5 property Applying applies doors, the residence to which had been gained “[b]y breaking open windows, kind or circumstance of or other of violence parts” “by any An it not be broken terror . . . .” does not because could оpen porch qualify entered by violence. “In Section 198.5 a test similar to the common law of burglary. implies law, there be the creation of breaking order to constitute at common had to (2 & a breach or a mere was insufficient.” LaFave law opening; trespass Scott, Law, 8.13, omitted.) It is dissimilar Substantive Criminal fn. § violence, at the “the force or common law need not involve breaking That, think, I (Ibid.) for once house was closed the law it.” protected all the that is needed has no analysis to resolve this case. Section 198.5 application. The bricklayer Neal did not enter any portion of defendant’s residence that could be entered. forcibly
Appendix