Self-defense as a Legal Defense
Under California Criminal Law

Although "self-defense" is a term that is commonly used, its true meaning isn't exactly clear. When properly asserted, it functions as a legal defense in California that excuses conduct which would otherwise be criminal. However, it doesn't apply to all situations, and it doesn't apply to all acts. In fact, California self-defense law is quite specific.

The basic premise of self-defense is that you shouldn't be punished for injuring or killing another while trying to protect yourself...as long as your conduct was reasonable under the circumstances.

In order to understand better when self-defense will and will not excuse your conduct, our Los Angeles criminal defense attorneys will provide a comprehensive guide to California self-defense law by addressing the following topics:

1. What is California Self-defense Law?

2. How Do I Prove that I Acted in
Self-defense?

3. Offenses Commonly Seen in Connection with California Self-defense Law

4. Defense of Others / Defense of Property

If, after reading this article, you have additional questions, we invite you to contact us. You may also find helpful information in our related articles on California domestic violence, Penal Code 242 Battery, Penal Code 243 Battery on a Peace Officer, Penal Code 148 Resisting Arrest, Penal Code 459 burglary, Penal Code 211 Robbery, Penal Code 261 Rape, and Penal Code 187 Murder.

1. What is California Self-defense Law?

According to California law, you act in lawful self-defense if you:

1. reasonably believe that you are in imminent danger of being killed, seriously injured, or unlawfully touched,



2. believe that immediate force is necessary to prevent that danger, and



3. use no more force than necessary to defend against that danger.¹

California self-defense law justifies your injuring (or even killing) another person if these conditions are satisfied. This means that if these requirements are met, self-defense can serve as a complete defense to a California violent crime if you are forced to kill or injure another.

It should be noted that California self-defense law not only protects you against attacks from people, but also from animals. If you defend yourself against imminent danger coming from a dog attack, for example, any reasonable measures you take to protect yourself will be excused.²

If only some of these requirements are met, you may still be able to reduce your criminal liability under the theory of imperfect self-defense (which is discussed in the following section).

2. How Do I Prove that I Acted in Self-defense?

The prosecutor has the burden of proving beyond a reasonable doubt that the killing or other alleged injury that you inflicted on another was unlawful.³ With respect to proving that your actions were only executed in self-defense, there are two options:

1. you may choose to testify or otherwise actively present evidence that you acted in self-defense, or



2. the court will instruct the jury on its own motion (legally known as "sua sponte") if the evidence supports the fact that your acts were performed in self-defense⁴.

The three most important facts that must be proven under California self-defense law are:

1. that the danger or threat was imminent,



2. that you reasonably believed you would be harmed, and



3. that you reasonably responded to that danger.

Imminent danger

As previously stated, before you can prevail under a self-defense theory, you must prove that another was about to kill, seriously injure, or unlawfully touch you.⁵ A threat of future harm (regardless of how significant the harm may be) will not suffice, as the danger must be immediate.⁶

Likewise, prior threats are not sufficient to give rise to this defense if they are not coupled with an overt act demonstrating an immediate intention of executing the threat.⁷ And on that note, the threat must be of an unlawful nature...a threat of a lawful arrest, for example, will not excuse an attack as self-defense.⁸

Example:

Mike regularly beats his wife, Mary. Mike is threatening to burn Mary if she doesn't confess to sleeping with Mike's brother. While Mary denies the accusation, Mike takes his lit cigarette and repeatedly touches it against Mary's skin. To defend herself, Mary grabs a pot and hits Mike over the head with it so that she can escape to call the police.

Under these circumstances, Mary's conduct would likely be excused as self-defense.

But...

Let's assume that instead of threatening to burn Mary with the lit cigarette he was holding in his hand, Mike threatens to burn Mary if he catches her sleeping with his brother...a future threat.

Mary, relying on the fact that Mike is very likely to carry out his threat in the future, decides to hit him with the pot to avoid being burned at a later time. Given these facts, Mary's actions would not be justified as self-defense since there was no immediate threat of harm.

As the California Supreme Court explained, "the peril must appear to the defendant as immediate and present and not prospective or even in the near future."⁹

Reasonable belief

In order to plead self-defense successfully, you must have had an honest and reasonable belief that you faced imminent harm.

Whether or not you acted reasonably is an objective standard, rather than a subjective standard. This means that the judge and/or jury will place themselves in your shoes to determine how a reasonable person would have acted in your situation.¹⁰

Examples:

Stephanie, who lives in Los Angeles, suffers from battered woman's syndrome (a condition attributed to women involved in relationships characterized by domestic violence). Because of the severe abuse she continually receives from her boyfriend, she believed that when he went to sleep and told her he "didn't think he would let her live 'till the morning", he was serious. As a result, she shot and killed him while he was asleep to protect herself against the abuse or death she believed she would face when he awoke.

In order to establish that Stephanie's acted in justifiable self-defense, Stephanie's Los Angeles criminal defense attorney would likely call an expert to testify about battered woman's syndrome and why murdering Stephanie's boyfriend would seem reasonable to a person affected by this syndrome. The judge/jury would then be in a position to evaluate whether a reasonable person in Stephanie's position would have acted in the same manner.¹¹

But...

One's mental illness won't be taken into consideration in judging his/her reasonableness. If, for example, you hear voices that tell you to kill another...and you do...the judge/jury will not place themselves in the shoes of a mentally impaired individual but rather a person of "ordinary mental and physical capacity".¹²

Because of these types of contradictions in the law (permitting evidence of battered woman's syndrome in a California domestic violence case but not evidence of one's mental illness, for example) it is critical to consult with a California defense attorney who understands exactly when self-defense will and will not apply if you plan on asserting it as a legal defense.

Threats by a third person

Third person threats will be introduced into evidence if they are helpful to the judge/jury in determining whether or not you acted reasonably. Since California self-defense law is concerned with your acts...as opposed to the acts of the person whom you attacked or killed...it only makes sense to admit these statements if you associated them with the individual you are accused of injuring.¹³

Example:

You accidentally killed Bob when you were driving under the influence. Bob's family and friends vowed to get revenge by killing you if they ever got you alone. As you were leaving a restaurant, Dave knocked you down, and began hitting and kicking you. Knowing Dave was a friend of Bob's, you shot and wounded him.

Under these circumstances, you would be permitted to argue that you acted in self-defense based on the threats that you received from Bob's friends and family, as those threats...even if not personally threatened by Dave...establish why you acted reasonably when you shot him.

Imperfect self-defense

As previously mentioned, an honest but unreasonable belief won't completely excuse your attack, but it may reduce your culpability under the theory of imperfect self-defense.

Imperfect self-defense applies to murder. Unlike self-defense, imperfect self-defense won't exonerate you from killing another, but it may reduce your charge from Penal Code 187 murder to Penal Code 192 manslaughter...a less serious offense.¹⁴

Like California self-defense, the judge has a duty to instruct the jury that you may be convicted of manslaughter instead of murder if there is sufficient evidence to support an actual (though again, unreasonable) belief that you faced imminent harm.¹⁵

Forcible and atrocious crimes

If you argue that you acted in self-defense because you believed you were about to be killed, maimed, raped, robbed, or the victim of another California violent crime, the judge will instruct the jury that they may presume you had a reasonable belief that you were about to suffer imminent harm.¹⁶

If you acted in response to one of these "forcible and atrocious crimes", the jury will only need to consider whether you responded reasonably.

Reasonable response

The general rule under California self-defense law is that you are only allowed to use enough force to combat the force being used against you.

However, if you have previously been threatened by your attacker, you are entitled to act more quickly and with more force than someone who has not been threatened.¹⁷ Deadly force, however, may only be justified if you are about to suffer great bodily injury or death and if there is no other alternative.

Example:

Dan is punching Steve. Because Dan is only using his fist, Steve can't shoot Dan and subsequently claim self-defense.

Similarly, while you are permitted to defend against force being used against you, you are not permitted to act out of vengeance. However, you are entitled to stand your ground until your safety is no longer threatened.¹⁸ Once you have secured your safety, you must cease fighting or you lose your right to claim this privilege.¹⁹

Example:

If Bill stabs Rick with a knife...and Rick is able to grab and secure the knife to the point where he is no longer threatened...he cannot subsequently stab Bill and plead self-defense. The danger that would justify a self-defensive stabbing had ceased.

And even if you are the aggressor in the fight...which typically precludes you from asserting self-defense... you may plead self-defense if:

1. you make a good faith effort to stop fighting and clearly indicate that you are trying to do so (but the other party doesn't stop fighting), or



2. the other party counters your initial non deadly attack with deadly force.²⁰

No duty to retreat

Although some states require that you retreat before responding to force with force, California self-defense law does not.²¹ In fact, even if you think you may face a deadly attack by, for example, going somewhere you know an enemy frequently hangs out...and are subsequently compelled to act in self-defense...you are still permitted to go to that location.²²

However, you are not permitted to seek a fight with the intent to create a real or illusory necessity to act in self-defense.²³

Example:

Rich is going to his friend's party, suspecting that his enemy John will be there. John has previously threatened harm to Rich, but Rich still goes to the party. John is, in fact there and does attack Rich, who in turn, defends himself. Rich is entitled to prevail under a theory of self-defense, even though he assumed the risk of attack by going to the party.

But...

If Rich goes to the party, knowing John will be there and initiates a confrontation with John, hoping it will entice John to attack him...and it does...he will be prevented from successfully pleading self-defense. California self-defense law does not permit you to participate in acts of contrived self-defense.

3. Offenses Commonly Seen in Connection with California Self-defense Law

There are a variety of criminal charges that commonly invite self-defense claims. These are typically California violent crimes, generally seen in domestic violence situations (which have been addressed in examples above), battery, battery on a peace officer, resisting arrest, burglary, robbery, and, of course, murder.

Penal Code 242 battery

Penal Code 242 battery is simply defined as the unlawful touching of another.²⁴ A battery can therefore range from offensive contact like spitting on someone to violent contact like a punching someone in the face.

As discussed, you are permitted to respond reasonably to a threat of imminent danger causing injury...but what about a simple imminent touching?

If you are in imminent danger of being unlawfully touched, you are permitted to use force that is reasonable to sufficiently protect against the touching, even though you don't fear imminent bodily harm.²⁵

Incidentally, the legal doctrine of "transferred intent" applies to self-defense situations. This means that, if while you are defending yourself, you accidentally injure someone other than the person whom you are defending against, you will not be prosecuted for injuring that individual.²⁶

Penal Code 243 battery on a police officer

Penal Code 243 battery on a police officer prohibits exactly that -- unlawfully touching an officer.²⁷ If an officer uses unreasonable or excessive force against you or unlawfully arrests you, you are entitled reasonably to protect yourself without being punished for this offense.

California self-defense law will even protect you as a prisoner if a correctional officer uses unreasonable or excessive force against you, so long as you only use reasonable force to protect yourself.²⁸

Penal Code 148 resisting arrest

Penal Code 148 resisting arrest prohibits willfully resisting, delaying, or obstructing an officer while he/she is performing his/her duties. Similar to battery on a peace officer, if you physically resist an unlawful procedure or resist against excessive force, you will be acquitted of this charge if you reasonably protected yourself.

That said, if the officer's excessive force was in response to your unjustified resistance, California self-defense law will not protect you.

Penal Code 211 robbery

Penal Code 211 robbery is defined as the taking of another's property from his/her possession or immediate presence accomplished by force or fear.²⁹ As a "forcible and atrocious crime," it will be presumed that you acted reasonably if you defended yourself while you were being robbed.

Using deadly force in self-defense will be excused if a gun or other weapon was used during the commission of the robbery.

Penal Code 261 rape

Penal Code 261 rape is defined as nonconsensual intercourse accomplished by force or fear.³⁰ If you reasonably believe that you are in imminent danger of being raped, your actions in defending yourself will be excused.

Depending on the situation, it is very likely that deadly force will be necessary to defend yourself under these circumstances and will be excused when it is.

Penal Code 187 murder

Penal Code 187 murder is defined as intentionally killing another with a state of mind known as malice aforethought. Malice aforethought is defined as an unlawful intention to kill or acting with a reckless disregard for human life.

If you are in imminent danger of being killed, you may take whatever measures are necessary to prevent that from happening. Deadly force is obviously expected and will be excused so long as the requirements that have been explained throughout this article are satisfied.

Penal Code 459 burglary

Penal Code 459 burglary is defined as entering a structure with the intent of stealing or committing another felony once inside.³¹ If, while someone is burglarizing your home or business, you attempt to defend yourself...and use reasonable force to do so...you will be entitled to an acquittal of any criminal charges (under California self-defense law).

Depending on the circumstances of the break in, burglary may be considered a forcible and atrocious crime, entitling you to a presumption that you acted reasonably when you were confronted by a burglar.³²

Burglary is also a good tie-in to the next section...

4. Defense of Others / Defense of Property

There are times when it may be necessary to defend others or to defend your property. Much like California self-defense law, there are a variety of rules that must be satisfied in order to prevail under this theory.

Defense of others

The requirements for defending others are the same as self-defense. You must honestly and reasonably believe that another is about to suffer serious bodily harm or death. If that is the case...and you use only enough force reasonably to counter the attack...you will be absolved of any criminal liability.³³

Defense of property

Owners or residents of a home (but not their guests³⁴) are entitled reasonably to defend their property against imminent harm. If you are in the home when an intruder enters, California self-defense law presumes that you reasonably fear imminent harm or danger.³⁵

However, this presumption only applies once an intruder actually enters your home. Prior to the entry, you must prove that you acted reasonably if you used force to make him/her leave.³⁶

Similarly, you have a right to use force against someone who is trespassing on your property. If you ask the person who is trespassing to leave...and he/she does not...you are permitted to use reasonable force to make him/her leave your property.³⁷

For more information about self-defense law, please don't hesitate to contact us. Our California criminal defense attorneys practice throughout the state, including the San Francisco Bay area, San Jose, Alameda County, Ventura, Los Angeles, Orange County, San Bernardino, Riverside and many nearby areas.

Also visit our page on Nevada self-defense laws for a discussion of how the rules of self-defense apply to crimes and situations in the state of Nevada.

Legal References:

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¹Judicial Council Of California Criminal Jury Instruction 505 -- Justifiable Homicide: Self-Defense or Defense of Another. ("The defendant acted in lawful (self-defense/ [or] defense of another) if: [1] The defendant reasonably believed that (he/she/ [or] someone else/ [or] <insert name or description of third party<) was in imminent danger of being killed or suffering great bodily injury [or was in imminent danger of being (raped/maimed/robbed/ <insert other forcible and atrocious crime<)]; [2] The defendant reasonably believed that the immediate use of deadly force was necessary to defend against that danger; AND [3] The defendant used no more force than was reasonably necessary to defend against that danger.")

See also Judicial Council Of California Criminal Jury Instruction 3470 -- Right to Self-Defense or Defense of Another (Non-Homicide). ("The defendant acted in lawful (self-defense/ [or] defense of another) if: [1] The defendant reasonably believed that (he/she/ [or] someone else/ [or] <insert name of third party<) was in imminent danger of suffering bodily injury [or was in imminent danger of being touched unlawfully]; [2] The defendant reasonably believed that the immediate use of force was necessary to defend against that danger; AND [3] The defendant used no more force than was reasonably necessary to defend against that danger.")

²People v. Lee, (2005) 131 Cal.App.4th 1413, 1427. ("The focus is on the nature of the threat, rather than its source. It serves no public policy, and is neither logical nor fair, to deprive appellant of the defense of [California] self-defense because the threat of imminent harm came from a dog and not from a person. The use of force in defense of oneself should be legitimate, whether or not the source of the threat is a human being.")

³See endnote 1, above. ("The People have the burden of proving beyond a reasonable doubt that the [attempted] killing was not justified.") See also 3470. ("The People have the burden of proving beyond a reasonable doubt that the defendant did not act in lawful (self-defense/ [or] defense of another).")

⁴People v. Breverman, (1998) 19 Cal.4th 142, 157. ("In the case of defenses, we concluded, a sua sponte instructional duty arises 'only if it appears that the defendant is relying on such a defense [as California self-defense], or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.' Thus, when the trial court believes 'there is substantial evidence that would support a defense inconsistent with that advanced by a defendant, the court should ascertain from the defendant whether he wishes instructions on the alternative theory.'")

⁵See endnote 1.

⁶See CALCRIM 505, endnote 1, above. ("Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be.")

⁷People v. Gonzales, (1917) 33 Cal.App. 340, 342. ("'[I]f A threatens the life of B, this fact will not of itself justify B in killing A [in California self-defense]. There must be some act on the part of the person making the threat, from which it appears that there is real or apparent danger of the execution of the threat.'")

⁸1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Defenses, § 66 - Conditions for exercise. ("The threatened act must be unlawful, e.g., a trespass or assault; the "threat" of a lawful arrest or privileged entry on land does not justify an attack by way of self-defense. (P.C. 197(3).")

⁹People v. Aris, (1989) 215 Cal.App.3d 1178 at 1187.

¹⁰People v. Humphrey, (1996) 13 Cal.4th 1073, 1083. ("Although the belief in the need to defend [that is, the need to assert self-defense] must be objectively reasonable, a jury must consider what "would appear to be necessary to a reasonable person in a similar situation and with similar knowledge ...." (CALJIC No. 5.50.) It judges reasonableness "from the point of view of a reasonable person in the position of defendant ...."")

¹¹See same. ("Although the ultimate test of reasonableness is objective, in determining whether a reasonable person in defendant's position would have believed in the need to defend, the jury must consider all of the relevant circumstances in which defendant found herself. With these principles in mind, we now consider the relevance of evidence of battered women's syndrome to the elements of [California] self-defense [law].")

¹²People v. Jefferson, (2004) 119 Cal.App.4th 508, 519. ("The issue is not whether defendant, or a person like him, had reasonable grounds for believing he was in danger. The issue is whether a "reasonable person" in defendant's situation, seeing and knowing the same facts, would be justified in believing he was in imminent danger of bodily harm. By definition, a reasonable person is not one who hears voices due to severe mental illness. In blunt fashion, our Supreme Court long ago defined a reasonable person as a "normal person." (Katz v. Helbing (1928) 205 Cal. 629, 638, 271 P. 1062.) The reasonable person is an abstract individual of ordinary mental and physical capacity who is as prudent and careful as any situation would require him to be.")

¹³People v. Minifie, (1996) 13 Cal.4th 1055, 1068. ("...[California self-defense] law recognizes the justification of self-defense not because the victim "deserved" what he or she got, but because the defendant acted reasonably under the circumstances. Reasonableness is judged by how the situation appeared to the defendant, not the victim. As the Court of Appeal noted, "Because '[j]ustification does not depend upon the existence of actual danger but rather depends upon appearances' (People v. Clark (1982) 130 Cal.App.3d 371, 377, 181 Cal.Rptr. 682; see also CALJIC No. 5.51), a defendant may be equally justified in killing a 'good' person who brandishes a toy gun in jest as a 'bad' person who brandishes a real gun in anger." If the defendant kills an innocent person, but circumstances made it reasonably appear that the killing was necessary in self-defense, that is tragedy, not murder. The test, therefore, is not whether the victim adopted the third-party threats, but whether the defendant reasonably associated the victim with those threats.")

¹⁴In re Christian S., (1994) 7 Cal.4th 768, 773. ("'An honest but unreasonable belief that it is necessary to defend oneself from imminent peril to life or great bodily injury negates malice aforethought, the mental element necessary for murder, so that the chargeable offense is reduced to Penal Code 192 manslaughter.'")

¹⁵People v. Rodriguez, (1997) 53 Cal.App.4th 1250, 1271. ("In contrast to lesser included offenses, a trial court's duty to instruct, sua sponte, or on its own initiative, on particular defenses [such as California self-defense] is more limited, arising 'only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.'")

¹⁶People v. Ceballos, (1974) 12 Cal.3d 470, 478. ("Examples of forcible and atrocious crimes are murder, mayhem, rape and robbery. (See Storey v. State, supra, 71 Ala. 329, 340; 3 Greenleaf on Evidence (1899) p. 122.) In such crimes "from their atrocity and violence human life [or personal safety from great harm] either is, or is presumed to be, in peril.")

¹⁷People v. Torres, (1949) 94 Cal.App.2d 146, 151. ("One who has received information of threats against his life or person made by another is justified in acting more quickly and taking harsher measures for his own protection [in self-defense] in the event of assault either actual or threatened, than would be a person who had not received such threats....")

¹⁸People v. Hecker, (1895) 109 Cal. 451, 463. ("But rarely do the circumstances give rise to this limited right to pursue and to kill [under the theory of California self-defense], for it must be exercised only to protect, and not to punish an attacker who is attempting to escape. "[T]he pursuit must not be in revenge, nor after the necessity for defense has ceased, but must be prosecuted in good faith to the sole end of winning his safety and securing his life.")

¹⁹Judicial Council Of California Criminal Jury Instruction 3474 -- Danger No Longer Exists or Attacker Disabled. ("The right to use force in (self-defense/[or] defense of another) continues only as long as the danger exists or reasonably appears to exist. [When the attacker (withdraws/[or] no longer appears capable of inflicting any injury), then the right to use force ends.]")

²⁰Judicial Council Of California Criminal Jury Instruction 3471-- Right to Self-Defense: Mutual Combat or Initial Aggressor. ("A person who engages in mutual combat or who is the initial aggressor has a right to self-defense only if: [1] (He/She) actually and in good faith tries to stop fighting; [AND] [2] (He/She) indicates, by word or by conduct, to (his/her) opponent, in a way that a reasonable person would understand, that (he/she) wants to stop fighting and that (he/she) has stopped fighting...If a person meets these requirements, (he/she) then has a right to self-defense if the opponent continues to fight....If you decide that the defendant started the fight using non-deadly force and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight, then the defendant had the right to defend (himself/herself) with deadly force and was not required to try to stop fighting.")

²¹People v. Newcomer, (1897) 118 Cal. 263, 273. ("[W]hen a man without fault himself is suddenly attacked in a way that puts his life or bodily safety at imminent hazard, he is not compelled to fly or to consider the proposition of flying, but may stand his ground and defend himself to the extent of taking the life of the assailant, if that be reasonably necessary [in the name of California self-defense].")

²²People v. Gonzales, (1887) 71 Cal. 569, 577. ("A man who expects to be attacked is not always compelled to employ all the means in his power to avert the necessity of [California] self-defense before he can exercise the right of self-defense. For one may know that if he travels along a certain highway he will be attacked by another with a deadly weapon, and be compelled in self-defense to kill his assailant, and yet he has the right to travel that highway, and is not compelled to turn out of his way to avoid the expected unlawful attack.")

²³California Jury Instructions - Criminal. CALJIC 5.55 Plea of Self-Defense May Not Be Contrived. ("The right of self-defense is not available to a person who seeks a quarrel with the intent to create a real or apparent necessity of exercising self-defense.")

²⁴California Penal Code 242 -- Battery Defined. ("A battery is any willful and unlawful use of force or violence upon the person of another.")

²⁵People v. Myers, (1998) 61 Cal.App.4th 328, 335. ("It follows that an offensive touching, although it inflicts no bodily harm, may nonetheless constitute a battery, which the victim is privileged to resist with such force as is reasonable under the circumstances. The same may be said of an assault insofar as it is an attempt to commit such a battery. To hold otherwise would lead to the ludicrous result of a person not being able to lawfully resist or defend against a continuing assault or battery [under California self-defense], such as the act defendant alleged here.")

²⁶People v. Mathews, (1979) 91 Cal.App.3d 1018, 1024. ("By reason of the foregoing cited authorities and analyses, we conclude that the doctrine of [California] self-defense is available to insulate one from criminal responsibility where his act, justifiably in self-defense, inadvertently results in the injury of an innocent bystander.")

²⁷California Penal Code 243 battery on a peace officer prohibits battering a peace officer who is engaged in the performance of his/her duties when you know or reasonably should have known that the individual is an officer.

²⁸People v. Coleman, (1978) 84 Cal.App.3d 1016, 1022. ("Where such an officer is making a lawful escort, if the inmate being escorted has knowledge, or by the exercise of reasonable care should have knowledge, that he is being escorted by a correctional officer, it is the duty of such inmate to refrain from using force or any weapon to resist such escort unless unreasonable or excessive force is being used to make the escort...If an officer does use unreasonable or excessive force in making an escort, the person being escorted may lawfully use reasonable force to protect himself [in self-defense].")

²⁹California Penal Code 211 -- Robbery defined. ("Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.")

³⁰California Penal Code 261 rape defines a variety of situations where raped may be charged.

³¹California Penal Code 459 burglary lists a variety of structures, buildings, and other enclosed locations that may be the subject of a burglary if they are entered by a person who intends to steal or commit a felony once inside.

³²California Penal Code 198.5 -- Use of deadly force by any person within his or her residence against an intruder; presumption of fear of death or great bodily injury. ("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.") [California self-defense law]

³³See endnote 1, above.

³⁴People v. Silvey, (1997) 58 Cal.App.4th 1320, 1326. ("Therefore, Penal Code section 198.5 creates 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. FN2 By its terms, the presumption [under California self-defense law] benefits only residents defending their homes.")

³⁵Judicial Council Of California Criminal Jury Instruction 3477 -- Presumption That Resident Was Reasonably Afraid of Death or Great Bodily Injury (Pen. Code, § 198.5) [and therefore entitled to exercise self-defense]. ("The law presumes that the defendant reasonably feared imminent death or great bodily injury to (himself/herself)[, or to a member of (his/her) family or household,] if: [1] An intruder unlawfully and forcibly (entered/[or] was entering) the defendant's home; [2] The defendant knew [or reasonably believed] that an intruder unlawfully and forcibly (entered/[or] was entering) the defendant's home; [3] The intruder was not a member of the defendant's household or family; AND [4] The defendant used force intended to or likely to cause death or great bodily injury to the intruder inside the home.")

³⁶People v. Brown, (1992) 6 Cal.App.4th 1489, 1495. ("The issue narrows to whether Neal's entry onto defendant's front porch constituted an entry into defendant's residence. In other words, is an entry onto an unenclosed front porch (a porch that has no access barriers from a public sidewalk) an entry into a residence, so that a residential occupant who uses deadly force against an unlawful and forcible intruder becomes entitled, upon request, to a jury instruction based on section 198.5 [California self-defense law]? We conclude there was no residential entry here.")

³⁷Judicial Council Of California Criminal Jury Instruction 3475 -- Right to Eject Trespasser From Real Property. ("The (owner/lawful occupant) of a (home/property) may request that a trespasser leave the (home/property). If the trespasser does not leave within a reasonable time and it would appear to a reasonable person that the trespasser poses a threat to (the (home/property)/ [or] the (owner/ [or] occupants), the (owner/lawful occupant) may [exercise self-defense and] use reasonable force to make the trespasser leave.")

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