Greg Hill & Associates Home
Award Recipient
Top 100 Trial Attorneys in the United States
Contact Us for a Free Consultation
What’s the Home Protection Bill of Rights Presumption?
Penal Code § 198.5, also known as the Home Protection Bill of Rights, provides: “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 and the person using the force knew or had reason to believe than an unlawful and forcible entry occurred.” This presumption, it should be noted, only applies to force being used within the house, not outside the house.
The Gist of this Article: The Home Protection Bill of Rights does not give a homeowner or someone living in a home the unlimited right to use force intended to cause death or great bodily injury within the house (not outside it) if with a presumed fear of imminent peril of death or great bodily injury, as the following summary explains.
The following summary of a recent Third Appellate District Court case, People v. Gregory Michael Wilson (2021 DJDAR 8280) exemplifies the limits of the Home Protection Bill of Rights.
An Amador County jury found Mr. Wilson guilty of second-degree murder and he was sentenced to 17 years to life. On appeal, he contended several errors, but this article’s scope will only cover his argument that the trial court judge erred in failing to instruct the jury sua sponte on the Home Protection Bill of Rights presumption.
The facts of this case are important toward understanding that the Third Appellate District found the trial court made no error.
The victim was stabbed to death after an argument erupted at a home gathering. At the house that night were three couples: the husband and wife who lived in the house; defendant Wilson and his girlfriend, who were staying at the house; and the victim and his girlfriend. Also, there as a teenager, who had come over to smoke marijuana, and four young children.
Court of Appeal Third Appellate District SacramentoAccording to witnesses who testified at trial, methamphetamine was being used by many and a fight broke out. Wilson decided to talk to one of people involved in the fight and confronted him outside the house at a gate between the porch and stairs to the porch. There, Wilson fatally stabbed the victim.
The porch had stairs leading up to it from a walkway connected to the driveway. A wooden gate was at the top of the stairs and was secured by a latch, but no lock on the latch. It was not meant to me a controlled entrance to the home like a front door.
The residence’s front door had a black metal security screen door with a dead bolt.
After the killing, police found no damage to the porch gate nor the front door’s security screen, suggesting there was no struggle by Wilson and the victim over re-entry to the home.
The Third Appellate District found no error in the trial court’s failure to sua sponte (on its own) instruct the jury on the Home Protection Bill of Rights presumption because the killing took place outside the residence. The front door was closed, as was the front door security screen. The killing was not even on the front porch, but on the stairs leading up to the front porch. Moreover, a porch is not a residence.
Second, there was no forcible entry to the residence. Neither the gate toward the top of the stairs nor the front door’s security screen showed any evidence of a forced entry. The gate had no lock anyways, so it was not being used to prevent access to the porch or reach the front door.
Interestingly, the opinion did not address the fact that Wilson was only a weekend guest at the home, which suggests to us that a weekend guest might otherwise invoke the Home Protection Bill of Rights presumption as a defense.
We bring this summary to the readers’ attention because there has been a lot of recent media attention to the “Stand Your Ground” defense and California’s Home Protection Bill of Rights presumption seems likely to be challenged, particularly under facts similar to the “Stand Your Ground” cases that have made the news.
The citation for the Third Appellate District Court ruling discussed above is People v. Gregory Michael Wilson (3d App. Dist., 2021) 67 Cal. App. 5th 819, 282 Cal. Rptr. 3d 541.
For more information about self-defense and defense of property issues, please click on the following articles:
