Is an 8-year-old’s act of setting up a series of boobytraps to deflect two would-be robbers within the permissible bounds of self-defense if the boobytraps cause the robbers serious injuries?

(a) Except as provided in Chapter 1 (commencing with Section 18710) of Division 5 of Title 2, any person who assembles, maintains, places, or causes to be placed a boobytrap device is guilty of a felony punishable by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or five years.

(b) Possession of any device with the intent to use the device as a boobytrap is punishable by imprisonment pursuant to subdivision (h) of Section 1170, or in a county jail not exceeding one year, or by a fine not exceeding five thousand dollars ($5,000), or by both that fine and imprisonment.

As used in this part, "boobytrap" means any concealed or camouflaged device designed to cause great bodily injury when triggered by an action of any unsuspecting person coming across the device. Boobytraps may include, but are not limited to, guns, ammunition, or explosive devices attached to trip wires or other triggering mechanisms, sharpened stakes, and lines or wire with hooks attached.

The issue of criminal liability under statutes such as Penal Code section 245 where the instrument employed is a trap gun or other deadly mechanical device appears to be one of first impression in this state,¹ but in other jurisdictions courts have considered

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[526 P.2d 244] the question of criminal and civil liability for death or injuries inflicted by such a device.

At common law in England it was held that a trespasser, having knowledge that there are spring guns in a wood, cannot maintain an action for an injury received in consequence of his accidentally stepping on the wire of such gun. (Ilott v. Wilkes (1820) 3 B. & Ald. 304.) That case aroused such a protest in England that it was abrogated seven years later by a statute, which made it a misdemeanor to set spring guns with intent to inflict grievous bodily injury but excluded from its operation a spring gun set between sunset and sunrise in a dwelling house for the protection thereof. (7 & 8 Geo. IV, ch. 18; see Bohlen & Burns, The Privilege to Protect Property by Dangerous Barriers and Mechanical Devices, 35 Yale L.J. 525, 538, 539.)

In the United States, courts have concluded that a person may be held criminally liable under statutes proscribing homicides and shooting with intent to injure, or civilly liable, if he sets upon his premises a deadly mechanical device and that device kills or injures another. (Katko v. Briney (Iowa), 183 N.W.2d 657, 660; State v. Plumlee, 177 La. 687, 149 So. 425, 429; State v. Beckham, 306 Mo. 566, 267 S.W. 817, 819 (disapproved on another issue in State v. Tatum, Mo., 414 S.W.2d 566, 568); State v. Childers, 133 Ohio St. 508, 14 N.E.2d 767, 769; Marquis v. Benfer (Ct. of Civ.App., Tex.), 298 S.W.2d 601, 603; Pierce v. Commonwealth, 135 Va. 635, 115 S.E. 686, 687 et seq.) However, an exception to the rule that there may be criminal and civil liability for death or injuries caused by such a device has been recognized where the intrustion is, in fact, such that the person, were he present, would be justified in taking the life or inflicting the bodily harm with his own hands. (See United States v. Gilliam, Supra, 25 Fed.Cas. pp. 1319, 1320--1321, No. 15, 205a; Scheuermann v. Scharfenberg,[12 Cal.3d 477] 163 Ala. 337, 50 So. 335; Katko v. Briney, Supra; Gray v. Combs, 30 Ky. 478, 23 Am.Dec. 431; State v. Plumlee, Supra; State v. Beckham, Supra; State v. Childers, Supra, 14 N.E.2d p. 770; Marquis v. Benfer, Supra; see Defense of Property--Spring Guns or Traps, 47 A.L.R.3d 646, 662; 6 Am.Jur.2d, Assault and Battery, § 89, p. 78; 40 C.J.S. Homicide § 111, pp. 978--979; Perkins on Criminal Law (2d ed.) p. 1030; Rest. 2d Torts, § 85; Prosser on Torts (4th ed.) p. 1116; but see Posner, Killing or Wounding to Protect a Property Interest (1971), 14 J. Law & Econ. 201, 214--215.) The phrase 'were he present' does not hypothesize the actual presence of the person (see Rest. 2d Torts, § 85, coms. (a), (c) & (d)), but is used in setting forth in an indirect manner the principle that a person may do indirectly that which he is privileged to do directly.

Allowing persons, at their own risk, to employ deadly mechanical devices imperils the lives of children, firemen and policemen acting within the scope of their employment, and others. Where the actor is present, there is always the possibility he will realize that deadly force is not necessary, but deadly mechanical devices are without mercy or discretion. Such devices 'are silent instrumentalities of death. They deal death and destruction to the innocent as well as the criminal intruder without the slightest warning. The taking of human life (or infliction of great bodily injury) by such means is brutally savage and inhuman.' (See State v. Plumlee, Supra, 149 So. 425, 430.)

It seems clear that the use of such devices should not be encouraged. Moreover, whatever may be thought in torts, the foregoing rule setting forth an exception to liability for death or injuries inflicted

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[526 P.2d 245] by such devices 'is inappropriate in penal law for it is obvious that it does not prescribe a workable standard of conduct; liability depends upon fortuitous results.' (See Model Penal Code (Tent. Draft No. 8), § 3.06, com. 15.) We therefore decline to adopt that rule in criminal cases.

Furthermore, even if that rule were applied here, as we shall see, defendant was not justified in shooting Stephen. Penal Code section 197 provides: 'Homicide is . . . justifiable . . . 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 . . ..' (See also Pen. Code, § 198.) Since a homicide is justifiable under the circumstances specified in section 197, A fortiori an attempt to commit a violent injury upon another under those circumstances is justifiable.

In the instant case the asserted burglary did not threaten death or serious bodily harm, since no one but Stephen and Robert was then on the premises. A defendant is not protected from liability merely by the fact that the intruder's conduct is such as would justify the defendant, were he present, in believing that the intrusion threatened death or serious bodily injury. (See State v. Green, 118 S.C. 279, 110 S.E. 145, 147--148; Rest. 2d Torts, § 85, com. d; ³ 35 Yale L.J. 525, 544--545.) [12 Cal.3d 480] There is ordinarily the possibility that the defendant, were he present, would realize the true state of affairs and recognize the intruder as one whom he would not be justified in killing or wounding. (See 35 Yale L.J. 525, 545.)

We thus conclude that defendant was not justified under Penal Code section 197, subdivisions 1 or 2, in shooting Stephen to prevent him from committing burglary. Our conclusion is in accord with dictum indicating that there may be no privilege to use a deadly mechanical device to prevent a burglary of a dwelling house in which no one is present. (See State v. Green, Supra, 110 S.E. 145, 147; State v. Barr, 11 Wash. 481, 39 P. 1080, 1082 (criticized in State v. Marfaudille, Supra, 92 P. 939, 940--941, but mentioned with approval in 35 Yale L.J. 525, 540--541); Contra, e.g., State v. Beckham, Supra, 267 S.W. 817, 818--820 (disapproved on another issue in

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[526 P.2d 247] State v. Tatum, Supra, Mo., 414 S.W.2d 566, 568); Scheuermann v. Scharfenberg, Supra, 50 So. 335, 337; State v. Moore, Supra, 31 Conn. 479, 483; see also Prosser on Torts, Supra, p. 116, wherein the rule in cases such as Scheuermann v. Scharfenberg, Supra, is set forth.)

"To justify an act of self-defense for [an assault charge under Penal Code section 245], the defendant must have an honest and reasonable belief that bodily injury is about to be inflicted on him. [Citation.]" (People v. Goins (1991) 228 Cal.App.3d 511, 516, 279 Cal.Rptr. 42, italics in original.) The threat of bodily injury must be imminent (In re Christian S. (1994) [13 Cal.4th 1065] 7 Cal.4th 768, 783, 30 Cal.Rptr.2d 33, 872 P.2d 574), and "... any right of self-defense is limited to the use of such force as is reasonable under the circumstances. [Citation.]" (People v. Pinholster (1992) 1 Cal.4th 865, 966, 4 Cal.Rptr.2d 765, 824 P.2d 571; see also People v. Clark (1982) 130 Cal.App.3d 371, 380, 181 Cal.Rptr. 682; Civ.Code, § 50 ["Any necessary force may be used to protect from wrongful injury the person ... of oneself ..."]; Pen.Code, §§ 692 ["Lawful resistance to the commission of a public offense may be made: [p] 1. By the party about to be injured ...".], 693 ["Resistance sufficient to prevent the offense may be made by the party about to be injured: [p] 1. To prevent an offense against his person ...".].)

In People v. Humphrey (1996) 13 Cal.4th 1073, 1082-1083, 56 Cal.Rptr.2d 142, 921 P.2d 1, we considered the reasonableness requirement in the context of a murder charge. We concluded that, although the test is objective, reasonableness is determined from the point of view of a reasonable person in the defendant's position. The jury must consider all the facts and circumstances it might " 'expect[ ] to operate on [defendant's] mind....' [Citation.]" (Id. at p. 1083, 56 Cal.Rptr.2d 142, 921 P.2d 1.)

The parties agree that evidence the victim had threatened defendant would be admissible to support a claim of self-defense. (E.g., People v. Moore (1954) 43 Cal.2d 517, 527-529, 275 P.2d 485; People v. Aris (1989) 215

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Cal.App.3d 1178, 1188, 264 Cal.Rptr. 167.) As the Attorney General states, "Common sense and experience tell us that it is reasonable for a person threatened by another to be on heightened alert upon encountering that threatener, and to reasonably take [the threat] into account in deciding the necessity for, and the amount of, defensive action, in response to any act on the part of the threatener reasonably appearing to be calculated to carry out that threat."

The disputed issue is whether, as the Court of Appeal stated, "evidence of threats is ... admissible where the threats have not been made by the victim, but by members of a group who in the defendant's mind are reasonably associated with the victim." The Court of Appeal concluded the evidence is admissible for reasons with which we agree, and which we adopt as our own: "A person claiming self-defense is required to 'prove his own frame of mind,' and in so [920 P.2d 1343] doing is 'entitled to corroborate his testimony that he was in fear for his life by proving the reasonableness of such fear.' (People v. Davis [ (1965) 63 Cal.2d 648, 656, 47 Cal.Rptr. 801, 408 P.2d 129].) The defendant's perceptions are at issue, and threats from a family and its friends may color a person's perceptions of that group no less than threats from an [13 Cal.4th 1066] individual may color a person's perceptions of that individual. A defendant who testifies that he acted from fear of a clan united against him is entitled to corroborate that testimony with evidence 'tend[ing] in reason to prove' that the fear was reasonable. (Evid.Code, § 210 [defining relevant evidence].) Threats from the group on the defendant's life would certainly tend in reason to make the defendant fearful. This is especially true where the group has a reputation for violence, and that reputation is known to the defendant. Such threats are relevant to the defendant's state of mind--a matter 'of consequence to the determination of the action' (ibid.)--and the trier of fact is entitled to consider those threats along with other relevant circumstances in deciding whether the defendant's actions were justified.

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.

As used in this section, great bodily injury means a significant or substantial physical injury.

Like traditional self-defense, however, defense of habitation applies only if the defendant's belief that a trespass is occurring or about to occur is reasonable. (People v. Corlett, supra, 67 Cal.App.2d at pp. 51-53, 153 P.2d 595; see also CALJIC Nos. 5.42, 5.43 (5th ed. 1988).) As we held in part IV.B, ante, the trial court correctly found no substantial evidence that defendant's belief that Bernardo was about to break in was reasonable. As the trial court put it, "No one was coming in. No one was breaking in the door." Penal Code section 198.5, entitled the "Home Protection Bill of Rights," "creates a rebuttable presumption that a residential occupant has a reasonable fear of death or great bodily injury when he or she uses deadly force against an unlawful and forcible intruder into the residence. [Citations.] For section 198.5 to apply, four elements must be met. There must be an unlawful and forcible entry into a residence; the entry must be by someone who is not a member of the family or the household; the residential occupant must have used 'deadly' force (as defined in § 198.5) against the victim within the residence; and finally, the residential occupant must have had knowledge of the unlawful and forcible entry." (People v. Brown (1992) 6 Cal.App.4th 1489, 1494-1495, 8 Cal.Rptr.2d 513; see generally People v. Owen (1991) 226 Cal.App.3d 996, 1004-1007, 277 Cal.Rptr. 341.) Defendant, however, is not entitled to the benefit of this presumption because there was no actual entry. Because there was no evidence that a reasonable person in defendant's position would have believed Bernardo was about to break in, the trial court had no duty to instruct on defense of habitation.

Section 198.5, enacted in 1984 and entitled the "Home Protection Bill of Rights," creates a rebuttable presumption that a residential occupant has a reasonable fear of death or great bodily injury when he or she uses deadly force against

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an unlawful and forcible intruder into the residence. (See fn. 1, ante; see also People v. Owen (1991) 226 Cal.App.3d 996, 1003, 1005, 277 Cal.Rptr. 341.) For section 198.5 to apply, four elements must be met. There must be an unlawful and forcible entry into a residence; the entry must be by someone who is not a member of the family or the household; the residential occupant must have used "deadly" force (as defined in § 198.5) [6 Cal.App.4th 1495] against the victim within the residence; and finally, the residential occupant must have had knowledge of the unlawful and forcible entry.

These four elements would comprise the heart of any instruction based on section 198.5. (See Owen, supra, 226 Cal.App.3d at p. 1007, 277 Cal.Rptr. 341.) The trial court refused defendant's request to instruct under section 198.5 because the court found no evidence of "entry" into the "residence."

It is undisputed there was evidence showing that Neal's entry onto the porch was unlawful and forcible; that Neal was not a member of defendant's family or household; that defendant's firing of the gun constituted use of deadly force under section 198.5; and that defendant knew of Neal's unlawful and forcible entry, since he testified he ordered Neal off the property and then saw Neal approach menacingly with a hammer and told him to stop. 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? We conclude there was no residential entry here.

[...]

We conclude the reasonable expectation test this court formulated in Nible is the appropriate one to employ here. Since one of the purposes of the burglary statute is to protect against unauthorized entry and the attendant danger that the occupant will react violently to the intrusion, the reasonable expectation test focuses on the protection the inhabitants of a structure reasonably expect. (200 Cal.App.3d at p. 844, 247 Cal.Rptr. 396; People v. Wilson (1989) 208 Cal.App.3d 611, 615, 256 Cal.Rptr. 422.) In situations implicating this particular purpose, the proper question is whether the nature of a structure's composition is such that a reasonable person would expect some protection from unauthorized intrusions. In Nible, this court held that a reasonable person would believe a window screen provides some protection against unauthorized intrusions, noting that even an open door or window affords some expectation of such protection because reasonable persons understand the social convention that portals may not be crossed without permission from the structure's owner. (Id. at pp. 844-845, 247 Cal.Rptr. 396.)

This safety-based reasonable expectation test is appropriate for the issue presented here involving section 198.5. This is because section 198.5 gives a defendant a rebuttable presumption that he was in reasonable fear of imminent danger when he used deadly force within his residence against an intruder (most likely a burglar) who unlawfully and forcibly entered the residence. As noted in Owen, section 198.5 establishes a presumption " 'that [6 Cal.App.4th 1497] the very act of forcible entry entails a threat to the life and limb of the homeowner.' " (Owen, supra, 226 Cal.App.3d at p. 1005, 277 Cal.Rptr. 341.)⁴

Applying this reasonable expectation test to the ordinary, unenclosed front porch at issue here, we conclude that Neal's entry onto the porch cannot constitute entry into defendant's residence for purposes of section 198.5.⁵ A reasonable person would not

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expect protection from unauthorized intrusion onto this kind of porch. Quite the contrary. Social convention dictates that anyone wishing to summon the occupant's presence or gain entry into the home must first enter the porch. The porch is not a portal. Absent "no soliciting" signs or a gate or some other barrier, girl scouts [6 Cal.App.4th 1498] selling cookies, the person delivering the newspaper, the door-to-door salesperson or any stranger will likely come onto a front porch of this nature, without permission. The reasonable residential occupant would not react violently to this entry. We find that a residential occupant does not have a reasonable expectation of protection from unauthorized intrusion onto a front porch like the one involved in this case.

Defendant argues that a reasonable person would have an expectation of protection because of the threat of immediate access to the home. It is true that once on the porch, particularly if the front door is open (as it was in this case), an intruder would have ready access to the home. It is nonetheless a qualitatively lesser expectation of protection than that recognized in section 198.5, and a situation which is adequately covered by the self-defense doctrine. If a residential occupant reasonably believes that bodily injury is about to be inflicted upon him or her by the intruder's presence on the porch, then the occupant can use reasonable force to repel the intruder, and the occupant, if tried, would be entitled to self-defense instructions.⁶ (See People v. Gleghorn (1987) 193 Cal.App.3d 196, 202-204, 238 Cal.Rptr. 82.)

The section 198.5 presumption requires that a resident's use of force must be within the residence, and thus an unlawful and forcible entry into a residence is a predicate to application of the presumption. (People v. Brown (1992) 6 Cal.App.4th 1489, 1494-1495 (Brown); see also 1 Witkin & Epstein, Cal. Criminal Law (4th ed. 2020) Defenses, § 76 [“Entry into the residence is required before the presumption applies”].) Here the victim had not forced entry into the residence; he was on the steps to the porch when he was stabbed.

This court held that a porch is not a residence for purposes of section 198.5 in Brown, supra, 6 Cal.App.4th at p. 1491. There, the defendant resident, while standing in his front doorway, shot the victim, who was standing on the defendant's porch at the time. (Ibid.) The Brown court held: “Although there was evidence that the victim's entry onto defendant's front porch was unlawful and forcible, an entry onto a front porch like defendant's does not constitute entry into a residence as required under section 198.5.” (Ibid., italics added.) The porch in Brown was “an unenclosed front porch, without any signs, gates or other indications that would tend to show the residential occupant did not expect intrusion into that area.” (Ibid.) In holding the porch was not the “residence” for purpose of section 198.5, the Brown court explained: “A reasonable person would not expect protection from unauthorized intrusion onto this kind of porch. Quite the contrary. Social convention dictates that anyone wishing to summon the occupant's presence or gain entry into the home must first enter the porch.” (Id. at p. 1497.)

Similarly, here, nothing about the residence indicates the married couple expected protection from unauthorized intrusion onto the porch. The porch gate had no lock. And as is apparent from photos of the porch and gated stairs in the record, anyone wishing to summon the occupants inside the home would have to first enter the porch through the gate.

Defendant attempts to distinguish Brown, pointing to its language that: “Absent ‘no soliciting' signs or a gate or some other barrier, Girl Scouts selling cookies, the person delivering the newspaper, the door-to-door salesperson or any stranger will likely come onto a front porch of this nature, without permission. The reasonable residential occupant would not react violently to this entry.” (Brown, supra, 6 Cal.App.4th at pp. 1497-1498.) He argues that here, by contrast, the porch was elevated with a latching gate, and to reach the porch one had to walk from the sidewalk, up the L-shaped driveway, and up a set of stairs. He maintains that with the porch stair gate latched, “a resident could rightly expect to be free from intrusion onto the porch.” We disagree.

While the Brown court noted the absence of a gate, its absence was not dispositive. Rather the holding turned on the absence of anything in the “nature of structure's composition... such that a reasonable person would expect some protection from unauthorized intrusions.” (Brown, supra, 6 Cal.App.4th at p. 1496.) While here the porch had a gate, nothing indicates it was there to protect from unauthorized intrusions. Indeed, the wife told an officer the gate was put in to keep the kids from falling off the stairs. Nobody testified it was installed for security or keeping people off the porch. The gate was no taller than the porch railings, it had no visible lock, and nothing on it would indicate to someone delivering a package or selling cookies that entering the porch to knock on the door was not permitted. And while there was a metal security gate on the house, it was attached to the front door, not the stairs leading to the porch.

Defendant also argues that we should consider how the gate was used prior to the stabbing. He notes that at the time of the stabbing, the residents were using it to keep the victim out, and any permission previously given to the victim had been effectively rescinded. Thus, according to defendant, the gate marked the boundary of their residence “in their minds and in fact.” Defendant also argues that a general consent to enter spaces can be restricted to certain purposes or certain times. At oral argument, counsel for defendant argued that in addition to the gate, there was a trio of people trying to keep the victim from entering onto the porch and based on that testimony an instruction on the section 198.5 presumption should have been given.

Defendant cites no authority supporting an expansion or contraction of what would be considered within the residence based on the residents' conduct at the time force was used against an intruder. And in our view, this elastic approach to defining what is within a residence is untenable. It would allow the presumption to be applied wherever a resident takes a stand against an intruder, effectively rendering the requirement that the force be used within the residence a nullity.

As we have noted, the Brown holding turned on the absence of anything in the “nature of a structure's composition... such that a reasonable person would expect some protection from unauthorized intrusions.” (Brown, supra, 6 Cal.App.4th at p. 1496.) In reaching that conclusion, the Brown court looked to the decisional law on burglary to determine what constitutes an entry into a residence. (Id. at pp.1495-1496.) All of those cases focused on the physical part of the structure where the entry was made and none considered conduct by the residents. (Ibid.) Consistent with that analysis, we look to the physical character of the residence to determine whether an area is within the residence for purposes of section 198.5. The activities of the residents outside a residence does not expand the area defined by the “structure's composition” beyond that which would otherwise be considered within the residence.

Accordingly, we conclude that the porch here was not a residence for purposes of section 198.5. The trial court, therefore, had no duty to instruct on the Home Protection Bill of Rights.