The PEOPLE, Plaintiff and Respondent, v. Gerald Robert GILMORE, Defendant and Appellant.
In this appeal, we shall find that defendant's conviction for involuntary manslaughter is not supported by substantial evidence because the undisputed facts establish the homicide was justifiable as a matter of law. Accordingly, we shall reverse and order entry of judgment of acquittal.
A jury convicted defendant of involuntary manslaughter (Pen.Code, § 192, subd. (b)) and found true an allegation he personally used a firearm in the commission of the offense. (Pen.Code, § 12022.5; further statutory references to sections of an undesignated code are to the Penal Code.) Defendant was placed on three years' probation.
On the evening of July 4, 1986, defendant fell asleep in his residence while watching television. Defendant lived in a second floor apartment above the business office of his construction company. His residence and office comprised one unit of a four-unit, warehouse-style building which he owned.
At about 2 a.m., defendant awoke to the noise of scraping outside his apartment. He went to his open living room window and parted the curtains. There he encountered a burglar, Ronald Schmidt, standing on an extension ladder at window level approximately 18 inches from defendant. Schmidt was trying to open the window screen. Startled, defendant rushed to his bedroom and obtained a loaded handgun. Wearing only boots and underwear, defendant ran down the stairs and out the front door. Schmidt was still on the ladder and defendant pulled it out from under him, knocking him to the ground.
Schmidt leapt to his feet, facing defendant. Defendant screamed “freeze” two or three times as Schmidt backed away. Defendant then fired twice into the ground in front of Schmidt and Schmidt turned and ran away on a zig-zag course. Defendant fired four bullets in the direction of Schmidt, each of which struck the asphalt pavement behind the fleeing burglar. The bullet from the last shot ricocheted off the asphalt and a fragment of it struck Schmidt in the back of the neck, killing him instantly. Defendant testified he aimed his shots at the ground and to the side of Schmidt. The bullet which hit closest to Schmidt struck the pavement approximately 71 feet behind the spot where Schmidt fell after he was hit.1
At the moment defendant fired the last shot, an automobile drove into the parking area. Fearing the car might belong to an accomplice of the burglar, defendant ran back into his apartment and reloaded his gun. The car was driven by Bill Gari, a tenant of defendant who rented one of the warehouse units.
Gari parked and checked Schmidt's body for signs of life. Gari then discovered that his own office had been burglarized and over $4,300 worth of property stolen. The only property recovered was a roll of stamps and a calculator found in Schmidt's pockets, a pair of white cotton gloves on Schmidt's hands, and the ladder used by Schmidt to reach defendant's second story window. Defendant did not learn Schmidt had burglarized Gari's office until after the shooting.
At defendant's direction, Gari called the sheriff. That night defendant told a sheriff's detective he had intended to arrest Schmidt, not to kill him.
Defendant was charged with involuntary manslaughter with use of a firearm. His motion to dismiss the information was denied (§ 995). He did not seek writ review of that ruling (§ 999a).2 Prior to sentencing, defendant moved for a new trial on grounds the trial court misdirected the jury in a matter of law and the jury's verdict was contrary to the law and the evidence. (§ 1181, subds. 5, 6.) This motion was denied.
A killing is involuntary manslaughter when done in “․ the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.” (§ 192, subd. (b).) The theory of the prosecution was that although it was lawful for defendant to apprehend Schmidt, he did so in an unlawful or grossly negligent manner by firing at him or in his direction.
Homicide is justifiable “[w]hen necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed․” (§ 197, subd. 4.) 3 Private citizens are expressly authorized to make felony arrests (§ 837) and may lawfully use firearms while doing so (§ 12031, subd. (k)).
Section 197 was codified with the adoption of the Penal Code in 1872 (Stats.1872, ch. 350, § 2, p. 481) and has not been amended substantively since that time. (See Stats.1931, ch. 697, § 1, p. 1439; Stats.1963, ch. 372, § 2, pp. 1159–1160.) The code commissioners took what became section 197 from provisions of the Crimes and Punishments Act of 1850 relating to excusable and justifiable homicide (Stats.1850, ch. 99, §§ 29–32, p. 232). These latter provisions in turn originated in the common law. (People v. Herbert (1882) 61 Cal. 544, 546–547.) Although the code commissioners modified the language to conform it to Field's Draft of the New York Penal Code, they did not intend to change its legal effect. (Id., at p. 547; see also code comrs. note, Deering's Ann.Pen.Code (1985 ed.), § 197, p. 163.)
At common law, a private citizen could use deadly force to apprehend a fleeing felon if necessary to capture him and if certain the person had actually committed a felony. (Perkins, Criminal Law (2d ed. 1969) pp. 981–982; see also 2 Wharton's Criminal Law (14th ed. 1974) § 120–123, pp. 103–113.) “The privilege of using deadly force had its common-law development primarily in the areas of law enforcement and crime prevention, and the extent of the development is not surprising since all felonies were punishable by death in those early days.” (Perkins, op. cit. supra, at p. 985.) “Elimination of most felonies from the category of capital crimes, coupled with the inclusion in the felony list of many misdeeds never punishable by death, has caused some to doubt the propriety of continuing the ancient rule which permitted any fleeing felon to be killed if he could not otherwise be overtaken. Limitation of such force for this purpose to arrests for capital crimes would be too restrictive and has seldom been suggested; the question has been whether it should be limited to the so-called ‘dangerous felonies' such as murder, manslaughter, arson, rape, robbery, burglary, mayhem, kidnaping and various types of felonious assault.” (Id., at p. 983; fns. omitted.)
Blackstone considered this question, at least in the context of self-defense and defense of others and of property. He described the English common law as limiting the use of deadly force to defend against the commission or attempt to commit the “forcible and atrocious” crimes of murder, nighttime burglary of a dwelling, arson, robbery, forcible rape and sodomy. (4 Blackstone's, Commentaries, at pp. 180–181.)
The first California decision to apply the common law rule limiting justifiable homicide to cases of forcible and atrocious crimes is People v. Jones (1961) 191 Cal.App.2d 478, 12 Cal.Rptr. 777. In Jones, defendant killed her husband as he advanced upon her with a knife. She was convicted of manslaughter. (Id., at p. 479, 12 Cal.Rptr. 777.) The trial court instructed the jury in the language of subdivision 1 of section 197 (see ante, fn. 3) that homicide is justifiable if committed “[W]hen resisting any attempt to murder any person, or to commit a felony or to do some great bodily injury upon any person.” The court added an instruction that homicide is justifiable only if the actor reasonably fears imminent death or serious bodily harm. Defendant proposed and the trial court rejected an instruction that wife-beating is a felony as a matter of law. (Supra, 191 Cal.App.2d at pp. 480–481, 12 Cal.Rptr. 777.) The appellate court affirmed, explaining:
“It is true that Penal Code, section 197, subdivision 1, does provide that homicide is justifiable when resisting an attempt to commit a felony. But the section does no more than codify the common law and should be read in the light of it. Taken at face value, and without qualification, it represents an oversimplification of the law today.
“Perhaps the leading American case on the point is Storey v. State, 71 Ala. 329, 336–341, where the early law is reviewed and rejected, and the application of the rule limited to the commission of felonies that involve a danger of great personal harm, or ‘some atrocious crime attempted to be committed by force.’ This limitation is today generally recognized. [Citations.] Any civilized system of law recognizes the supreme value of human life, and excuses or justifies its taking only in cases of apparent absolute necessity. [Citation.]” (People v. Jones, supra, 191 Cal.App.2d at pp. 481–482, 12 Cal.Rptr. 777.)
In light of the evidence the Jones court concluded the jury could find defendant did not reasonably apprehend she was in imminent danger of death or great bodily injury and was not therefore justified in using deadly force to defend herself. (Id., at p. 482, 12 Cal.Rptr. 777.) While Jones rejected the proposition that “the statutory felony of wife-beating” (ibid.) is a forcible and atrocious crime as a matter of law, its holding is not inconsistent with the principle that certain other crimes are forcible and atrocious as a matter of law.
Moreover, as noted in People v. Martin (1985) 168 Cal.App.3d 1111, 214 Cal.Rptr. 873, “․ there are several important reasons why [Jones ] is of limited assistance in resolving the issue presented here. First, it dealt with a felony (wife-beating) not recognized at the time section 197 was enacted. Second, it interpreted subdivision 1 and not subdivision 4 of section 197. There are important differences between subdivisions 1 and 4 of section 197. Under subdivision 1, homicide is justifiable in resisting an attempt to murder, or to commit a felony, or to do some great bodily injury. The language before and after ‘to commit a felony’ implies that the felony contemplated by that statute is one more dangerous than a personal assault. Additionally, at common law there was a broader privilege to use deadly force in arresting a felon than in preventing his criminal act. (See Note, Justification for the Use of Force in the Criminal Law [ (1961) 13 Stan.L.Rev. 566, 580].)” (At p. 1118.)
In People v. Ceballos (1974) 12 Cal.3d 470, 116 Cal.Rptr. 233, 526 P.2d 241, the Supreme Court considered the applicability of the forcible and atrocious crime limitation in the context of the defense of property. The defendant was convicted of assault with a deadly weapon based on his installation of a trap gun in his garage which injured a daytime burglar. (Id., at pp. 474–475, 116 Cal.Rptr. 233, 526 P.2d 241.) Affirming the conviction, the court declined to adopt an exception to the rule of criminal liability for the use of trap guns to apply in circumstances where the defendant would have been privileged to use deadly force had he been present. (Id., at p. 477, 116 Cal.Rptr. 233, 526 P.2d 241.)
Citing People v. Jones with approval, the Ceballos court explained that subdivision 2 of section 197 (see ante, fn. 3) was likewise limited by its common law provenance: “Examples of forcible and atrocious crimes are murder, mayhem, rape and robbery. [Citations.] 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’ [citations]. [¶] Burglary has been included in the list of such crimes. [Citations.] However, in view of the wide scope of burglary under Penal Code section 459, as compared with the common law definition of that offense, in our opinion it cannot be said that under all circumstances burglary under section 459 constitutes a forcible and atrocious crime.” (Id., at pp. 478–479, 116 Cal.Rptr. 233, 526 P.2d 241; fn. omitted.) The court concluded that the particular daytime burglary in that case did not threaten death or serious bodily harm because no one but the burglars were on the premises when they were burglarized. (Id., at p. 479, 116 Cal.Rptr. 233, 526 P.2d 241.)
Ceballos does not rule out the proposition that, under subdivision 4 of section 197, certain crimes are forcible and atrocious as a matter of law. Ceballos did not construe subdivision 4 and did not involve a common law burglary, i.e., “․ the breaking and entering of a mansion house in the night with the intent to commit a felony.” (People v. Ceballos, supra, 12 Cal.3d at p. 479, 116 Cal.Rptr. 233, 526 P.2d 241, fn. 2.) Moreover, the discussion of forcible and atrocious crimes in Ceballos is dicta.
The only decision which directly confronts the question whether, under subdivision 4 of section 197, common law burglary is a forcible and atrocious crime as a matter of law is People v. Martin, supra, 168 Cal.App.3d 1111, 214 Cal.Rptr. 873. In Martin, the defendant, an off-duty deputy sheriff, surprised two unarmed intruders who had broken into his son's house at night. The son's residence was unoccupied at the time. When one of the fleeing intruders disregarded the defendant's order to stop, the defendant shot and killed him as he climbed a fence and was about to get away. Defendant was charged with involuntary manslaughter. The trial court dismissed the information under section 995 and the People appealed. (Id., at p. 1114, 214 Cal.Rptr. 873.)
Since section 197, subdivision 4, has not been amended since its enactment, the Martin court focused on legislative intent at that time. (Id., at p. 1116, 214 Cal.Rptr. 873.) The court explained:
“In adopting the words ‘any felony’ to define justifiable homicide under section 197, subdivision 4, the Legislature necessarily intended to include all the common law crimes then recognized, including nighttime burglary of a dwelling house. Admittedly, the crimes classified as felonies have been substantially enlarged since 1872 and there are other unanticipated meanings of the words ‘any felony’ which we have considered above. However, none of the cases reviewed justifies disregarding the presumed intent of the Legislature to include in the definition of ‘any felony’ those crimes which were felonies at common law.
“In the circumstances of this case it is appropriate that we follow ‘the policy of this state to construe a penal statute as favorably to the defendant as its language and the circumstances of its application may reasonably permit; just as in the case of a question of fact, the defendant is entitled to the benefit of every reasonable doubt as to the true interpretation of words or the construction of language used in a statute. [Citation omitted.]’ (Keeler v. Superior Court,  2 Cal.3d  at p. 631 [87 Cal.Rptr. 481, 470 P.2d 617.] ) Stated another way, ‘when the language used in a penal law is reasonably susceptible of two constructions, ordinarily that construction which is more favorable to the defendant will be adopted.’ (People v. Moreland (1978) 81 Cal.App.3d 11, 17, 146 Cal.Rptr. 118․)
“The approach we adopt to the construction of section 197, subdivision 4, is dictated not only as a matter of fairness in restricting the meaning of a statute to that which should have been foreseen but also to avoid a violation of the first essential of due process of law. (See Jeffries, Legality, Vagueness, and the Construction of Penal Statutes (1985) 71 U.Va.L.Rev. 189, 205.) As Justice Holmes pointed out in McBoyle v. United States (1931) 283 U.S. 25, 27 [75 L.Ed. 816, 818, 51 S.Ct. 340 ]: ‘Although it is not likely that a criminal will carefully consider the text of the law before he murders or steals, it is reasonable that a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear.’ ” (People v. Martin, supra, 168 Cal.App.3d at pp. 1123–1124, 214 Cal.Rptr. 873.)
The Martin court affirmed the dismissal of the information, stating: “The undisputed facts establish that defendant necessarily committed the homicide in attempting by lawful ways and means to apprehend the victim while fleeing from the scene of his nighttime residential burglary. We specifically limit our holding to felons fleeing after commission of a crime which was a felony at common law.” (168 Cal.App.3d at p. 1125, 214 Cal.Rptr. 873.)
Martin stands for the proposition that crimes which were felonies at common law are forcible and atrocious as a matter of law; therefore the use of deadly force by private citizens to apprehend felons fleeing from the commission of common law felonies is justified under subdivision 4 of section 197.
The Martin analysis finds support in earlier case authority. (People v. Lillard (1912) 18 Cal.App. 343, 344–346, 123 P. 221, distinguished in People v. Ceballos, supra, 12 Cal.3d at p. 482, 116 Cal.Rptr. 233, 526 P.2d 241; see also People v. Walker (1973) 32 Cal.App.3d 897, 902–905, 108 Cal.Rptr. 548, People v. Piorkowski (1974) 41 Cal.App.3d 324, 330, 115 Cal.Rptr. 830 [dictum].)
People v. Quesada (1980) 113 Cal.App.3d 533, 169 Cal.Rptr. 881 suggests the question whether a nighttime residential burglary is forcible and atrocious is one of fact. There the defendant's house was burglarized at night when he was not at home. Two days later, the defendant lured the suspected burglar to the home of a mutual acquaintance and then shot and killed him as he attempted to flee. (Id., at pp. 536–537, 169 Cal.Rptr. 881.) The appellate court affirmed the defendant's conviction of involuntary manslaughter, rejecting his contention he was justified as a matter of law in using deadly force to apprehend the burglar. (Id., at pp. 537–539, 169 Cal.Rptr. 889.)
Quesada is readily distinguishable. As explained in People v. Martin: “Although Quesada involved a nighttime burglary recognized as a felony at common law, the specific issue before the court was the defendant's right to have the jury instructed to the effect that homicide is justifiable ‘ “when necessarily committed in attempting, by lawful ways and means, to apprehend any person who has committed burglary of the first degree.” ’ (People v. Quesada, supra, 113 Cal.App.3d at p. 537, 169 Cal.Rptr. 889.) Such an instruction made no distinction between apprehension of the person who had committed the burglary while fleeing from the scene and apprehension after the felon had completed his escape. The social need for justification of a homicide committed in the latter circumstance, as in Quesada, is virtually nonexistent. In sharp contrast, failure to apprehend when the felon is fleeing the scene of the crime frequently means that the felon remains at large. Later investigation cannot represent a substitute for immediate apprehension. [Citation.] Accordingly, a person may reasonably expect that he is justified in using deadly force to apprehend a felon fleeing the scene of the crime. No such reasonable expectation could exist in attempting apprehension after escape. Other safer and less drastic procedures for apprehension after escape are well known.” (People v. Martin, supra, 168 Cal.App.3d at pp. 1122–1123, 214 Cal.Rptr. 873.)
Here, the evidence is undisputed that Schmidt attempted to burglarize an occupied dwelling in the nighttime and that defendant fired at or in the direction of Schmidt in an attempt to apprehend him as he fled from the scene of the crime. We hold as a matter of law that defendant was justified in using deadly force to apprehend Schmidt.4
The Attorney General properly concedes that Tennessee v. Garner (1985) 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 does not directly apply here because the Fourth Amendment does not restrain the conduct of private citizens. (See Coolidge v. New Hampshire (1971) 403 U.S. 443, 488, 91 S.Ct. 2022, 2049, 29 L.Ed.2d 564, 595.)
In Garner, a police officer shot and killed a suspect fleeing a nighttime residential burglary although reasonably sure he was unarmed. (Id., at pp. 3–4, 105 S.Ct. at pp. 1697, 85 L.Ed.2d at pp. 4–5.) The officer acted under a Tennessee statute which provided that if, after a police officer has given notice of intent to arrest a criminal suspect, the suspect flees or forcibly resists, “․ the officer may use all the necessary means to effect the arrest.” (Id., at p. 4, 105 S.Ct. at 1698, 85 L.Ed.2d at p. 5.) The deceased's father brought a civil action in federal district court seeking damages under 42 U.S.C. section 1983, asserting a violation of the deceased's constitutional rights. The district court concluded the officer's actions were authorized by the Tennessee statute and that the statute was constitutional. The Supreme Court reversed, holding use of deadly force under these circumstances as authorized by the Tennessee statute constituted an unreasonable seizure of the person of the deceased in violation of his rights under the Fourth Amendment. The court did not reject deadly force in all cases: “Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.” (Id., at pp. 11–12, 105 S.Ct. 1701, 85 L.Ed.2d at p. 10.) The court concluded that nighttime residential burglary is not automatically a crime involving or threatening serious physical harm. (Id., at p. 21, 105 S.Ct. at 1706, 85 L.Ed.2d at p. 16.) Thus, in the context of a federal civil rights action it is a factual question whether deadly force is justifiable to apprehend a common law burglar.
The Attorney General argues, however, that the principle of Garner applies because subdivision 4 of section 197 permits the use of deadly force only if by “lawful ways and means”; since Garner holds that “the use of deadly force to arrest by a police officer, if excessive under the circumstances, is constitutionally unreasonable, such an arrest by a private citizen, a fortiori, would not be ‘by lawful ways and means.’ ”
Assuming that the Legislature intended the phrase “by lawful ways and means” to incorporate relevant judicial decisions subsequently rendered, we are not cited to any decision which holds unlawful the use of deadly force by a private individual in circumstances such as these. In People v. Martin, supra, the court refused to apply Garner retroactively to one accused of crime (168 Cal.App.3d at p. 1124, 214 Cal.Rptr. 817) stating, in dictum, that Garner was applicable only to offenses alleged to have occurred before it was decided. (168 Cal.App.3d at p. 1125, 214 Cal.Rptr. 817.) It bears repetition that the defendant in Martin was a peace officer and the Martin court thus had no occasion authoritatively to descant on the applicability of Garner to private individuals. Thus even were we to conclude, as the Attorney General urges, that defendant's conduct by analogy to Garner was unreasonable and thus not within the realm of “lawful ways and means,” section 197, subdivision 4 as so interpreted would operate prospectively only and could not be applied to defendant. (Keeler v. Superior Court, supra, 2 Cal.3d 619, 633, 87 Cal.Rptr. 481, 470 P.2d 617.)
“The first essential of due process is fair warning of the act which is made punishable as a crime. ‘That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties, is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law.’ (Connally v. General Constr. Co. (1926) 269 U.S. 385, 391 [70 L.Ed. 322, 328, 46 S.Ct. 126 ].) ‘No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids.’ (Lanzetta v. New Jersey (1939) 306 U.S. 451, 453 [83 L.Ed. 888, 890, 59 S.Ct. 618 ].) The law of California is in full accord. (In re Newbern  53 Cal.2d 786, 792, 3 Cal.Rptr. 364, 350 P.2d 116; In re Davis  242 Cal.App.2d 645, 660–651, 51 Cal.Rptr. 702.) [¶] This requirement of fair warning is reflected in the constitutional prohibition against the enactment of ex post facto laws (U.S. Const., art. I, §§ 9, 10; Cal. Const., art. I, § 16). When a new penal statute is applied retrospectively to make punishable an act which was not criminal at the time it was performed, the defendant has been given no advance notice consistent with due process. And precisely the same effect occurs when such an act is made punishable under a preexisting statute but by means of an unforeseeable judicial enlargement thereof. (Bouie v. City of Columbia (1964) 378 U.S. 347 [12 L.Ed.2d 894, 84 S.Ct. 1697].)” (Original emphasis; Keeler v. Superior Court, supra, 2 Cal.3d at pp. 633, 634, 87 Cal.Rptr. 481, 470 P.2d 617.)
Under the undisputed facts, defendant shot and killed Ronald Schmidt as Schmidt fled from his attempt to burglarize defendant's residence at night. As a matter of law the felony was a forcible and atrocious crime within the meaning of subdivision 4 of section 197 and the homicide was justifiable under that same provision.5 As the prosecution has failed to present sufficient evidence to support a conviction, defendant is entitled to a judgment of acquittal. (See Pen.Code, § 199; People v. Belton (1979) 23 Cal.3d 516, 527, 153 Cal.Rptr. 195, 591 P.2d 485.) Because of our resolution of this issue, we need not consider additional contentions by or in behalf of defendant.
The judgment (order of probation) is reversed and the trial court is directed to enter a judgment of acquittal.
I concur with the majority that defendant's conviction, given the conflicting state of the law of justifiable homicide at the time he acted, cannot be upheld.
In my view, it is a close question whether a private citizen under California law is justified in using fatal force to apprehend a fleeing suspect for the crime of attempted burglary of a residence in the nighttime when the offense itself did not involve the infliction or threatened infliction of death or great bodily injury and the fleeing suspect did not pose an immediate threat of death or serious bodily injury to the arresting person or others. The jury was instructed in this case that a homicide is justifiable and not unlawful when necessarily committed in attempting, by lawful ways and means, to apprehend any person who has committed a forcible or atrocious crime. A forcible or atrocious crime, the jury was further instructed, was “any felony, the character and manner of the commission of which threatens, or is reasonably believed by the defendant to threaten, life or great bodily injury so as to cause in him a reasonable fear of death or great bodily injury.” Accordingly, the jury was told that “[d]eadly force may not be used to apprehend a fleeing suspect unless: [¶] (1) The arresting person has reasonable cause to believe that the fleeing suspect has committed a crime involving the infliction or which is reasonably believed by the arresting person to have threatened infliction of death or great bodily injury; or [¶] (2) The arresting person has reasonable cause to believe that the fleeing suspect poses an immediate threat of death or serious bodily injury to the arresting person or others.” Since the jury returned a verdict of involuntary manslaughter under these instructions, it necessarily found that neither the crime nor the perpetrator exposed defendant or others to a risk of death or serious bodily injury. The question then is whether a citizen is authorized by law to use fatal force to apprehend a felon when no such threat appears. As I read the cases, the answer is far from clear.
The statutes themselves are a model of legal opacity. The principal provision, the justifiable homicide statute, declares that homicide by any person is justifiable “[w]hen necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed, ․” (Pen.Code, § 197, subd. 4.) 1 Thus, under its terms, the killing must be “necessarily committed.” As I read it, this phrase connotes that only force which is necessary, or which reasonably appears to be necessary, to apprehend the felon may be employed. (Cf. People v. Bates (1967) 256 Cal.App.2d 935, 939, 64 Cal.Rptr. 575; People v. Young (1963) 214 Cal.App.2d 641, 646, 29 Cal.Rptr. 595.)
In addition to being necessary, the “ways and means” of the apprehension must also be “lawful.” What constitutes a lawful manner of apprehension cannot be found in this statute. It simply says that a killing is justified if (1) it was necessarily committed to apprehend a felon and (2) the manner of that apprehension was lawful under some other law. The cases dealing with which felonies are included in the phrase “any felony,” some of which are recounted in the majority's opinion, consider only half the equation. To answer the other half of the question, we must look elsewhere.
The Penal Code authorizes a private party to arrest another “[w]hen the person arrested has committed a felony, although not in his presence,” and “[w]hen a felony has been in fact committed, and he has reasonable cause for believing the person arrested to have committed it.” (Pen.Code, § 837, subds. 2 and 3.) The code is silent, however, on the amount of force a private person may use to accomplish the arrest. It does, however, provide that a peace officer may “use reasonable force to effect the arrest, to prevent escape or to overcome resistance.” (Pen.Code, § 835a.) But even this statute does not explicitly state when a peace officer may use fatal force. Since no statute sets forth the amount of force a citizen may lawfully use to arrest a fleeing felon, the answer must be sought in the common law of California.2
As the California Supreme Court explained in People v. Ceballos (1974) 12 Cal.3d 470, 478, 116 Cal.Rptr. 233, 526 P.2d 241, a case construing the portion of the justifiable homicide statute dealing with resisting an attempt to commit a felony, “the rule developed at common law that killing or use of deadly force to prevent a felony was justified only if the offense was a forcible and atrocious crime.” “Examples of forcible and atrocious crimes,” the court recounted, “are murder, mayhem, rape and robbery.” (Ibid.) Although burglary has sometimes been included in the list of such crimes, “in view of the wide scope of burglary under Penal Code section 459, as compared with the common law definition of that offense,” the high court went on, “in our opinion it cannot be said that under all circumstances burglary under section 459 constitutes a forcible and atrocious crime. [¶] Where the character and manner of the burglary do not reasonably create a fear of great bodily harm, there is no cause for exaction of human life, or for the use of deadly force. The character and manner of the burglary could not reasonably create such a fear unless the burglary threatened, or was reasonably believed to threaten, death or serious bodily harm.” (Id., at p. 479, 116 Cal.Rptr. 233, 526 P.2d 241, citations and fn. omitted.)
That same construction requiring an examination of the “character and manner of the burglary” was placed upon subdivision 4 of Penal Code section 197 in People v. Quesada (1980) 113 Cal.App.3d 533, 169 Cal.Rptr. 881. As that court saw it, burglary “is not, or at least not per se, the sort of crime which justifies the use of deadly force by a citizen in apprehending the criminal.” (Id., at p. 539, 169 Cal.Rptr. 881.) Consequently, the defendant was not entitled to an instruction “that homicide is justifiable ‘when necessarily committed in attempting, by lawful ways and means, to apprehend any person who has committed burglary of the first degree.’ ” (Id., at p. 537, 169 Cal.Rptr. 881, fn. omitted.)
Two civil cases involving peace officer rules and regulations echo the Ceballos and Quesada decisions. The first, Long Beach Police Officers Assn. v. City of Long Beach (1976) 61 Cal.App.3d 364, 132 Cal.Rptr. 348, involved the validity of the police department's manual governing the discharge of firearms by officers. One of the provisions permitted the discharge of firearms in the course of an arrest or recapture of an adult felony suspect only if the officer had reasonable cause to believe that the crime involved the use or threatened use of deadly force and that there was a substantial risk that the suspect would cause death or serious bodily harm if his apprehension were delayed. The city police officers' association sought to invalidate this restriction on the ground, among others, that the rule was inconsistent with state law. Denying relief, the court concluded that “[w]ith regard to arrest, prevention of escape or recapture of adult felony suspects, the regulations are not substantially inconsistent with the Penal Code as interpreted by the courts. Plaintiff concedes that in this day and age neither an officer nor a private person may rely on the literal language of the 1872 code provisions which appear to justify the use of deadly force to effect an arrest for, or to prevent the commission of, any felony. In view of the great expansion of crimes which have been made felonies, the courts have held that deadly force may be used against felony suspects only if the felony is a ‘forcible and atrocious' one, which threatens death or great bodily harm. (People v. Ceballos, 12 Cal.3d 470, 477–484 [116 Cal.Rptr. 233, 526 P.2d 241]; People v. Piorkowski, 41 Cal.App.3d 324, 328–332 [115 Cal.Rptr. 830]; People v. Jones, 191 Cal.App.2d 478, 481–482 [12 Cal.Rptr. 777].)” (Id., 61 Cal.App.3d at pp. 373–374, 132 Cal.Rptr. 348; parallel citations omitted.)
The second case, Kortum v. Alkire (1977) 69 Cal.App.3d 325, 138 Cal.Rptr. 26, involved an action by city taxpayers seeking to invalidate police department regulations authorizing the use of deadly force in the apprehension of suspects. The trial court denied relief and taxpayers appealed. Construing the regulation to apply only to “forcible and atrocious” felonies, the Court of Appeal affirmed. Distilling the holdings of Ceballos, Long Beach Police Officers Assn. and other cases, the court said: “Thus, it appears, from the foregoing authorities, that the applicable sections of the California Penal Code [sections 196, 197, 835a and 837], as construed by the courts of this state, prohibit the use of deadly force by anyone, including a police officer, against a fleeing felony suspect unless the felony is of the violent variety, i.e., a forcible and atrocious one which threatens death or serious bodily harm, or there are other circumstances which reasonably create a fear of death or serious bodily harm to the officer or another.” (Kortum v. Alkire, supra, 69 Cal.App.3d at p. 333, 138 Cal.Rptr. 26.)
The Attorney General argues that these cases, when read together, collectively hold that neither a peace officer nor a private citizen may use deadly force in arresting a fleeing felon when neither the felony committed nor the fleeing felon threatens death or bodily harm. The argument has much force. Indeed, that is precisely how the Committee on Standard Jury Instructions, Criminal, reads the law. A forcible and atrocious crime, as the committee defined it, “is any felony, the character and manner of the commission of which threatens, or is reasonably believed by the defendant to threaten, life or great bodily injury so as to cause in him a reasonable fear of death or great bodily injury.” (CALJIC No. 5.16 (4th ed. 1979).)
But crisscrossing this line of authority are those cases which hold or suggest that burglary of an inhabited dwelling in the nighttime is a forcible and atrocious crime as a matter of law justifying the use of fatal force to apprehend the fleeing burglar. The majority has analyzed some of those cases and I need not repeat that analysis here. As the majority notes, the forcible and atrocious limitation was first applied to the justifiable homicide statute in People v. Jones (1961) 191 Cal.App.2d 478, 12 Cal.Rptr. 777, a case dealing with killing to resist the commission of a felony under subdivision 1 of Penal Code section 197. The reasoning of the Jones case was applied to subdivision 4 of that section some thirteen years later in People v. Piorkowski (1974) 41 Cal.App.3d 324, 115 Cal.Rptr. 830. Piorkowski involved a daytime burglary of a cleaning business. The defendant, who worked near the cleaners and happened to be armed, gave chase and in a struggle with one of the burglars shot and killed him. Convicted of involuntary manslaughter, defendant argued on appeal that the killing was justified. Rejecting that contention, the court held that “[t]he reasoning of the court in Jones applies with like force and effect in construing subdivision 4 of section 197.” (Id., at p. 329, 115 Cal.Rptr. 830.) It noted that many nonviolent crimes are now classified as felonies in California, such as the theft of $50 worth of avocados. “Needless to say, modern rationale must preclude the holding that a private citizen may use deadly force in attempting to arrest a person for such offenses.” (Id., at pp. 329–330, 115 Cal.Rptr. 830.) But the Piorkowski court took pains to emphasize that “[w]e do not have here a burglary of a dwelling at night (common law burglary), such as was the case in People v. Walker, 32 Cal.App.3d 897 [108 Cal.Rptr. 548]. Rather, the crime was committed during daylight hours and in a business establishment which was open to the public at the time. No confrontation aided by force was involved. While this factual pattern may constitute ‘statutory burglary,’ which is a felony (Pen.Code, § 459), clearly there is not the attendant risk to human life which accompanies common law burglary.” (Id., at p. 330, 115 Cal.Rptr. 830.) The clear implication of Piorkowski is that fatal force may be used when necessary to apprehend a common law burglar.
The most recent of this line of cases is People v. Martin (1985) 168 Cal.App.3d 1111, 214 Cal.Rptr. 873. There an off-duty deputy sheriff caught two unarmed youths burglarizing his son's next door residence at night at a time when the son and his family were not at home. Grabbing his shotgun, the officer ordered the two fleeing burglars to stop. One did but the other kept running, climbed a fence and was about to get away. The officer shot and killed the escaping burglar. The Martin court held that “[t]he undisputed facts establish that defendant necessarily committed the homicide in attempting by lawful means and ways to apprehend the victim while fleeing from the scene of his nighttime residential burglary.” (Id., at p. 1125, 214 Cal.Rptr. 873.)
For the reasons which follow, I would construe the statute to limit the use of deadly force to those felonies actually involving the infliction or threatened infliction of death or serious bodily harm. But given the dichotomy of authority construing the justifiable homicide statute and thus its inherent uncertainty, I agree with the majority that such an adverse construction cannot be retroactively applied to this defendant. “The due process considerations are the same whether the statutory crime is enlarged or justification for conduct otherwise criminal is restricted by judicial interpretation.” (Ibid.; see also Bouie v. City of Columbia (1964) 378 U.S. 347, 353–354, 84 S.Ct. 1697, 1702–03, 12 L.Ed.2d 894.) Under those due process principles, defendant cannot constitutionally be required, at pain of punishment, to guess which line of authority correctly leads to justification and which to conviction.
The Attorney General counters that at the time defendant acted our justifiable homicide statute had already been changed by the United States Supreme Court's decision in Tennessee v. Garner (1985) 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1. “[T]he Supreme Court's holding that the use of excessive force by the police in the arrest of a nonviolent felon fleeing from a nonviolent crime is expressly forbidden,” he argues, “should likewise hold true for the private citizen.” In his view, “Tennessee v. Garner teaches that the use of deadly force, if excessive under the facts, is unreasonable, and the attempt to make the arrest will not be ‘by lawful ways and means.’ ”
The Martin court agreed with that analysis in the context of a police officer. “Tennessee v. Garner necessarily limits the scope of justification for homicide under section 197, subdivision 4,” the Martin court concluded. (Id., at p. 1124, 214 Cal.Rptr. 873.) But both Garner and Martin involved police officers and the restrictions placed upon them by the Fourth Amendment. As the majority points out, no such Fourth Amendment constraints apply to private citizens. At the time this defendant acted, no California court had ever explicitly held that the limitations of Garner applied to private citizens or that our justifiable homicide statute had been changed by that decision when the actor was not a police officer or an agent of the state.
An unforeseeable judicial enlargement of a criminal statute, applied retroactively, is barred by the due process clause. (Keeler v. Superior Court (1970) 2 Cal.3d 619, 635, 87 Cal.Rptr. 481, 470 P.2d 617.) Since the Garner decision involved a police officer and was explicitly based upon the Fourth Amendment, this defendant cannot be charged with the duty of divining that a California reviewing court would apply its rationale to private citizens not as a matter of constitutional compulsion but rather as a matter of its own common law policy. Given these due process constraints, I agree with the majority that defendant's conviction cannot stand.
But as a matter of prospective application, I agree with the Attorney General that our statute ought to be construed in a manner consistent with the constitutional law of the land. First of all, there is a recurrent body of California law which holds or states in dictum that not all burglaries are forcible and atrocious crimes as a matter of law and that the manner and character of that crime must be examined to determine whether it posed a risk of harm to the occupant or others before fatal force may lawfully be used. Since this branch of the law of arrest and justifiable homicide represents the better reasoned view, I would adopt it prospectively as the law of California. It seems to me to be indefensible to adopt a rule which condones the intentional killing of a fleeing suspect who poses no threat of physical harm to anyone simply because the common law of England permitted it. Where the crime and its perpetrator do not pose a threat of serious bodily harm, “there is no cause for exaction of human life, or for the use of deadly force.” (People v. Ceballos, supra, 12 Cal.3d 470, 479, 116 Cal.Rptr. 233, 526 P.2d 241, citations omitted.)
Secondly, and quite apart from earlier judicial constructions of the statute, we ought to adopt the Garner rule as a matter of public policy. The controlling statute, it must be recalled, simply declares that the apprehension of the felon must be “by lawful ways and means” but the Legislature has not undertaken to declare what ways and means are lawful. The task then devolves upon the courts, in the exercise of their common law function, to fill in this legislative gap, to act “interstitially” as Justice Holmes expressed it. (Southern P. Co. v. Jensen (1917) 244 U.S. 205, 221, 37 S.Ct. 524, 531, 61 L.Ed. 1086 (dis. opn. of Holmes, J.)
In exercising this common law function, we ought to be informed by the constitutional law of the land, even if we are not strictly bound by it. If it is constitutionally unreasonable for police officers to use fatal force against offenders who have committed felonies which did not in fact threaten anyone with serious bodily injury, it is hard to understand how it would be reasonable for a citizen to use deadly force in the same circumstance. The Martin court was surely correct in stating that the Garner decision necessarily limits the justifiable homicide statute when the actor is a peace officer. After noting that apprehension by the use of deadly force by a police officer is a seizure subject to the reasonableness requirement of the Fourth Amendment, the high court held that “[t]he use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspect die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so․ A police officer may not seize an unarmed, nondangerous suspect by shooting him dead.” (Garner, 471 U.S. at p. 11, 105 S.Ct. at p. 1701.)
On the other hand, “[w]here the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.” (Id., at pp. 11–12, 105 S.Ct. at pp. 1701.)
As a result of the Garner decision, it is now illegal for California peace officers to use deadly force to apprehend a fleeing felon when there has not been any infliction of serious physical harm or threat of such harm. Because it is unlawful, the killing by a peace officer in those circumstances would not be justified under our statute because it would not be “by lawful ways and means.” Instead, it would be by unconstitutional means.
It seems to me to be extremely ill advised to construe our common law to permit a private citizen to kill a nondangerous felon when our peace officers may not. In the words of the Garner court, to follow the common law rule allowing the use of whatever force was necessary to effect the arrest of a fleeing felon “would be a mistaken literalism that ignores the purposes of a historical inquiry.” (Id., at p. 13, 105 S.Ct. at 1702.) Since the common law rule arose when virtually all felonies were punishable by death, it was then thought that “ ‘the killing of a ․ fleeing felon resulted in no greater consequences than those authorized for punishment of the felony․’ ” (Id., at pp. 13–14, 105 S.Ct. at pp. 1702; quoting American Law Institute, Model Penal Code § 3.07, Comment 3, p. 56 (Tentative Draft No. 8, 1958).) The rule was also justified by emphasizing the relative dangerousness of felons. “Neither of these justifications makes sense today. Almost all crimes formerly punishable by death no longer are or can be․ Many crimes classified as misdemeanors, or nonexistent, at common law are now felonies. These changes have undermined the concept, which was questionable to begin with, that use of deadly force against a fleeing felon is merely a speedier execution of someone who has already forfeited his life. They have also made the assumption that a ‘felon’ is more dangerous that a misdemeanant untenable.” (Id., at p. 14, 105 S.Ct. at p. 1703; citations omitted.)
Moreover, “[t]he common-law rule developed at a time when weapons were rudimentary. Deadly force could be inflicted almost solely in a hand-to-hand struggle during which, necessarily, the safety of the arresting officer was at risk. Handguns were not carried by police officers until the latter half of the last century. Only then did it become possible to use deadly force from a distance as a means of apprehension. As a practical matter, the use of deadly force under the standard articulation of the common-law rule has an altogether different meaning—and harsher consequences—now than in past centuries.” (Id., at pp. 14–15, 105 S.Ct. at pp. 1703, citation omitted.) In short, “changes in the legal and technological context mean the rule is distorted almost beyond recognition when literally applied.” (Id., at p. 15, 105 S.Ct. at pp. 1703.)
This, in my view, is a powerful and ultimately persuasive argument for construing the statutory phrase “by lawful ways and means” to mean by methods consistent with the Fourth Amendment rather than by means authorized by an anachronistic rule of common law. Indeed, it was precisely on account of these kinds of reasons that our courts rejected a literal meaning of the phrase “any felony.” Before the Jones case and its progeny restricted the justifiable homicide statute to forcible and atrocious crimes, any fleeing felon could be killed if necessary to apprehend him. In the words of the Court of Appeal in People v. Lillard (1912) 18 Cal.App. 343, 123 P. 221, “[s]ection 197 of our Penal Code provides that homicide is justifiable when necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed. Wharton on Homicide declares the rule, and quotes abundant authority in its support: ‘Even a private person is justified in killing a fleeing felon who cannot otherwise be taken, if he can prove that the person is actually guilty of the felony.’ ” (Id., at p. 346, 123 P. 221.) That mechanical rule, once subjected to a historical analysis, was rightly rejected on the grounds that “[a]ny civilized system of law recognizes the supreme value of human life, and excuses or justifies its taking only in cases of apparent absolute necessity.” (People v. Jones, supra, 191 Cal.App.2d 478, 482, 12 Cal.Rptr. 777, citation omitted.) Once the “forcible and atrocious” classification of felonies is subjected to the same probing analysis, it too can no longer command our judicial allegiance.
Under the Fourth Amendment as interpreted by the Garner court, the common law rule cannot be mechanically applied even for common law felonies, such as nighttime burglary of an inhabited dwelling. Although “burglary is a serious crime, we cannot agree that it is so dangerous as automatically to justify the use of deadly force.” (Id., 471 U.S. at p. 21, 105 S.Ct. at 1706.) For the same reasons, we should not prospectively approve a rule which authorizes the use of fatal force as a matter of law in all first degree burglary cases no matter what the circumstances. It is true that most common law crimes, by their very definition, necessarily involve a risk or threat of great bodily harm or death. Murder is an obvious example. It is hard to think of an instance where the crime of murder does not involve the infliction or threatened infliction of serious physical harm or death. But the same is not true of the crime of first degree burglary. Under our burglary statute, first degree burglary is committed whenever an inhabited dwelling house is burglarized. (Pen.Code, § 460, subd. 1.) But for purposes of this statute, “ ‘inhabited’ means currently being used for dwelling purposes, whether occupied or not.” (Pen.Code, § 459.) Thus the burglary of an inhabited dwelling, even if properly classified as a “forcible or atrocious” crime, does not necessarily involve a threat of personal harm to anyone. This is vividly illustrated by the facts of the Martin case itself where the owners were not home and the armed officer was never threatened himself. No reason has been advanced which persuades me that we should prospectively construe the phrase “by lawful ways and means” to permit the use of fatal force in these nonthreatening circumstances. I would therefore hold that henceforth a private citizen may use fatal force to apprehend a fleeing burglar only “if the suspect threatens the [citizen] with a weapon or there is probable cause to believe he has committed a crime involving the infliction or threatened infliction of serious physical harm,” and even then only “if necessary to prevent escape, and if, where feasible, some warning has been given.” (Garner, 471 U.S. at pp. 11–12, 105 S.Ct. at pp. 1701.) The use of fatal force when no such threat appears can no longer be deemed lawful in California.
1. Soon after the shooting, defendant told the police he shot “at” Schmidt. Whether the jury found defendant aimed directly at Schmidt or, as he testified, at the ground and to the side of Schmidt was not crucial. Schmidt was struck by a ricochet bullet fragment and the jury, under the instructions given, could have convicted defendant on the theory that the act of shooting not directly at but in Schmidt's direction was done without due caution and circumspection.
2. Neither did defendant move for acquittal at the close of the prosecution's case-in-chief. (§ 1118.1.)
3. Section 197 provides in full: “Homicide is also justifiable when committed by any person in any of the following cases: [¶] 1. When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person; or, [¶] 2. When committed in defense of habitation, property, or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony, or against one who manifestly intends and endeavors, in a violent, riotous or tumultuous manner, to enter the habitation of another for the purpose of offering violence to any person therein; or, [¶] 3. When committed in the lawful defense of such person, or of a wife or husband, parent, child, master, mistress, or servant of such person, when there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury, and imminent danger of such design being accomplished; but such person, or the person in whose behalf the defense was made, if he was the assailant or engaged in mutual combat, must really and in good faith have endeavored to decline any further struggle before the homicide was committed; or, [¶] 4. When necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed, or in lawfully suppressing any riot, or in lawfully keeping and preserving the peace.”
4. Although our holding renders unnecessary extended discussion of the point, we agree with Amicus Criminal Justice Legal Foundation that the trial court erred in submitting to the jury the question whether attempted nighttime burglary of an occupied dwelling is a forcible and atrocious crime.
5. The concurring opinion implies that we are announcing a rule which would prospectively “permit the use of fatal force in ․ non-threatening circumstances” (conc. opn. p. 928). Our responsibility is to decide this case. Accordingly, we have distilled from the governing statute and applied to the undisputed facts the legal principles which we (and, it appears, our concurring colleague) believe to be controlling. If it is thought desirable to change the statute for future cases, that is the responsibility of the Legislature.
1. A second justifiable homicide statute is found in Penal Code section 196. This statute governs killings in the performance of official duty. It provides, in relevant part: “Homicide is justifiable when committed by public officers and those acting by their command in their aid and assistance, ․ [¶] 3. When necessarily committed in retaking felons who have been rescued or have escaped, or when necessarily committed in arresting persons charged with felony, and who are fleeing from justice or resisting such arrest.”Since the defendant in this case was neither a public officer nor a person acting under the command of such an officer, this statute has no application here.
2. Neither party contends that some provision of the California Constitution limits the amount of force a private citizen can use to effect an arrest for a felony. Nor is there any contention that the state statute, construed to authorize the use of fatal force, constitutes state action sufficient to impose the restrictions of the Fourth Amendment upon persons acting under its auspices. I therefore have no occasion to examine those contentions.
PUGLIA, Presiding Justice.
DEEGAN *, J., concurs.