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Law School Case Brief

People v. Quesada - 113 Cal. App. 3d 533, 169 Cal. Rptr. 881 (1980)

Rule:

The use of deadly force to prevent the burglary of an unoccupied premises is not justified under Cal. Penal Code § 197. Because a burglary committed when no one is on the premises is not a crime which threatens death or serious bodily harm so as to justify the use of deadly force in preventing its occurrence, it follows that it 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.

Facts:

Defendant's house was burglarized during the night while no one was at home. Two days later, defendant shot and killed the burglar. Defendant contended that the killing was justified under Pen. Code, § 197, subd. 4, providing that homicide wass justifiable when necessarily committed in attempting to apprehend a person for committing a felony. The trial judge refused defendant's request that the jury be instructed that homicide was justifiable "when necessarily committed in attempting, by lawful ways and means, to apprehend any person who has committed burglary of the first degree." A jury convicted defendant of involuntary manslaughter. Defendant sought appellate review.

Issue:

Was a defendant justified under Pen. Code, § 197, subd. 4 in killing the burglar?

Answer:

No.

Conclusion:

The appellate court affirmed the trial court’s judgment, holding that defendant's use of deadly force in apprehending the burglar was not justified. Under Cal. Penal Code § 197, a burglary committed when no one was on the premises was not a crime which threatened death or serious bodily harm so as to justify the use of deadly force in preventing its occurrence. Therefore, the use of deadly force was not justified in apprehending the burglar, and the trial court did not err in refusing to give a jury instruction that homicide was justifiable when necessarily committed in attempting to apprehend any person who had committed first degree burglary.

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