Reset A A Font size: Print

Court of Appeal, Second District, Division 6, California.

The PEOPLE, Plaintiff and Respondent, v. David Charles BIRT, Defendant and Appellant.

No. B055938.

Decided: November 17, 1992

California Appellate Project, under appointment by the Court of Appeal, Jonathan B. Steiner, Executive Director, Jennifer T. Meyer and Edward H. Schulman, Staff Attys., Los Angeles, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Sr. Asst. Atty. Gen., Donald E. de Nicola, Supervising Deputy Atty. Gen., Carolyn D. Fuson, Deputy Atty. Gen., for plaintiff and respondent.

David Charles Birt was convicted by jury of second degree murder and found to have personally used a firearm in its commission.  (Pen.Code, §§ 187, 12022.5.) 1  He was sentenced to prison for 19 years to life (§§ 190, subd. (a) 12022.5).

He appeals contending, inter alia, that “the court's failure to instruct sua sponte on (the Home Protection Bill of Rights, i.e.) Penal Code section 198.5's presumption that appellant had a reasonable fear of death or great bodily injury was reversible error.”   We agree and reverse.

Duane Vince, George Grafft and appellant were neighbors in a rural area of Paso Robles.   On April 26, 1990, Vince discovered one of his dogs had been seriously injured.   He and Grafft took the dog to the veterinarian who found a one-inch hole in the dog's mouth, a severe jaw injury, and several missing teeth.   Vince was advised the dog would live.

Vince went home and told Mrs. Vince he was going to see appellant about the dog's injuries.   He refused Grafft's offer to accompany him.   Grafft said to Mrs. Vince:  “I hope David's [appellant] not home.”   Mrs. Vince testified Vince was not angry or upset when he left.   She admitted earlier telling the police he was angry when he left.   Grafft testified that Vince was angry when he left.   Vince went to appellant's property, confronted him, and was shot to death by appellant.

Appellant was arrested, advised of, and waived his constitutional rights.   (Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.)   An edited version of an audio video tape of appellant's interrogation by the police was played for the jury.   Appellant explained that he was walking his dog on the hill behind his mobile home when Vince swerved his pickup truck to a stop in appellant's driveway.   Vince went into appellant's trailer and then came back out.   When Vince saw appellant coming down the hill, Vince charged up to appellant and threatened to kill him.   Vince accused appellant of injuring his dog.   Appellant said he had been home all morning and knew nothing about Vince's dog.   Vince attempted to strike him with his fist but appellant evaded the blow and ran to his trailer.   Vince told appellant not to bother getting his gun because Vince was going to kill him.   Appellant retrieved his loaded rifle from a closet and walked to the trailer's closed door.   He told Vince to go home.   Vince was at the door yelling and hit or kicked the door.   As Vince was opening the door, appellant twice shot through the door.   He claimed the second shot was not intentional.   Vince then said he was going to get a gun to shoot appellant and walked toward his truck.   Appellant did not know he had hit Vince with the first shots.   Appellant followed Vince and as he reached toward the driver's side door, appellant shot him.   Vince fell to the ground.   Vince had previously threatened appellant on two occasions.   The first time, Vince accused appellant of reporting to the county that Vince was building an illegal reservoir.   Vince threatened to kill appellant on this occasion.   The other time, Vince was upset at appellant for shooting a dog who killed one of appellant's turkeys.   Vince told appellant he would “kick his butt” if Vince was not on probation.2

Witnesses testified they had seen Vince outside the trailer, angry and upset, pointing at the trailer door yelling.   They were worried about the occupant's safety.   They then saw Vince walk away from the trailer holding his chest.   They saw appellant follow, raise the rifle to his shoulder, aim, and shoot at Vince.

Carpenters in the area testified that appellant ran to their work sites seeking an ambulance for Vince.   Appellant told them he had shot someone who was attacking him.   They all testified appellant seemed distraught.

There was conflicting evidence on whether the trailer door was partly open or fully closed when appellant shot Vince through it, whether Vince hit the door, whether the second shot was accidental and whether the pickup door was opened or closed as Vince approached it and shot appellant the third time.   There was no conflict as to the cause of death—the first two shots through the door killed Vince.

Evidence of Vince's acts of violence toward others was admitted.   This included pushing a pregnant woman down to the ground and ramming a police car.

Section 198.5, 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 the residence and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred.”

“The legislative history of section 198.5 indicates the statute was enacted to permit residential occupants to defend themselves from intruders without fear of legal repercussions, to give ‘the benefit of the doubt in such cases to the resident, establishing a presumption that the very act of forcible entry entails a threat to the life and limb of the homeowner.’  (Press Release from the office of Sen. H.L. Richardson (the bill's author) Oct. 1, 1984.)   Thus, the presumption in section 198.5 was implemented to promote a public policy and affects the burden of proof.”  (People v. Owen (1991) 226 Cal.App.3d 996, 1005, 277 Cal.Rptr. 341.)   In essence, section 198.5 establishes a variant of traditional self-defense, i.e. self-defense inside one's residence.

 The trial court is required to instruct sua sponte “․ on particular defenses and their relevance to the charged offense ․ 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.”  (People v. Wickersham (1982) 32 Cal.3d 307, 326, 185 Cal.Rptr. 436, 650 P.2d 311;  see also People v. Stewart (1976) 16 Cal.3d 133, 140, 127 Cal.Rptr. 117, 544 P.2d 1317;  People v. Sedeno (1974) 10 Cal.3d 703, 715–716, 112 Cal.Rptr. 1, 518 P.2d 913, disproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 160 Cal.Rptr. 84, 603 P.2d 1.)   Here appellant was relying on perfect or imperfect self-defense and the trial court correctly instructed thereon.   However, there was also substantial evidence supportive of the section 198.5 presumption, and the trial court had a sua sponte duty to instruct on the principle encompassed therein.

We reject respondent's argument that People v. Owen, supra, 226 Cal.App.3d 996, 1005, 277 Cal.Rptr. 341, requires that we hold there was no sua sponte duty to give a section 198.5 instruction.   We need not determine whether Owen is factually distinguishable.   It may well be.   It is sufficient to observe that to the extent that it holds that there is no sua sponte duty to instruct on the principle embodied in section 198.5, we respectfully disagree.

Appellant saw Vince enter his trailer and then come back out to look for him when he first arrived on appellant's property.   Thus, Vince had already invaded the sanctity of appellant's home.   He threatened to kill appellant on the hill.   Appellant said that Vince attempted to enter his trailer again after appellant sought refuge therein.   Appellant was in his own trailer, i.e. his residence, when he shot Vince after Vince had partially opened the door.   This is a sufficient factual foundation for the giving of an instruction based upon section 198.5.  (People v. King (1978) 22 Cal.3d 12, 15–16, 148 Cal.Rptr. 409, 582 P.2d 1000.)

Where, as here, there is a factual predicate for section 198.5, the jury should be told by the trial court not only that the defendant is presumed to be innocent (CALJIC 2.90), but that he is presumed to have held a reasonable fear of imminent peril of death or great bodily injury.   Such an instruction is tantamount to telling the jury that the defendant acted in self-defense.   This is a significant arrow in the quiver of self-defense instructions.

 A trial court may refuse to instruct on a legal principle where it is covered by other instructions.  (People v. Slocum (1975) 52 Cal.App.3d 867, 893, 125 Cal.Rptr. 442;  People v. Quinlan (1970) 8 Cal.App.3d 1063, 1068, 88 Cal.Rptr. 125.)   Contrary to the Attorney General's position, an instruction based upon section 198.5 is not repetitive to standard CALJIC self-defense instructions.   Other instructions dealing with self-defense (see CALJIC 5.50 et seq.) pale by comparison to a trial court telling the jury that the defendant is presumed to have acted in self-defense.   Instruction thereon by the trial court would weigh more than a thousand words from the most eloquent of defense counsel.   In our opinion, based upon the extraordinary language of section 198.5 chosen by the Legislature, the trial court has the duty to instruct sua sponte on the principle encompassed therein.

 Defense counsel's decision not to have the jury instructed with CALJIC 5.40 (defense of property—ejection of trespasser), CALJIC 5.42 (resisting an intruder upon one's property), and CALJIC 5.43 (force that may be used in defense of property) does not relieve the trial court from sua sponte instructing on the principle of section 198.5.   Again, these pedestrian instructions pale by comparison to the section 198.5 presumption.

 This instructional failure struck at the heart of the one critical issue at trial—whether the killing was malicious, mitigated or justifiable.   Properly instructed, the jury may find an absence of “malice,” a requisite for second degree murder (see e.g. CALJIC 8.50) or even justifiable homicide.   It is reasonably probable the result would have differed had the trial court given an instruction based on section 198.5.  (People v. Stewart, supra, 16 Cal.3d 133, 142, 127 Cal.Rptr. 117, 544 P.2d 1317.)

It is unnecessary to discuss appellant's other contentions.   They may not recur on retrial.

The judgment is reversed.


1.   All further statutory references are to this code unless otherwise specified.

2.   Appellant's statements to the police were edited in a way that permitted the jury to erroneously infer that the dog appellant shot in the past was Vince's.   It was not.

YEGAN, Associate Justice.

STEVEN J. STONE, P.J., and GILBERT, J., concur.