Trial court erred when it refused to instruct the jury that a person using force within his residence against a person who forcibly enters shall be presumed to have held a reasonable fear of injury to self or another member of the household (Pen. Code, § 198.5). Grays was convicted of second degree murder and being a felon in possession of a gun; a firearm use enhancement was found true. At trial, Grays requested that the court instruct on the section 198.5 presumption that he was in reasonable fear of imminent danger to self or another member of the household when he used deadly force inside his residence against an intruder. The court refused, finding the presumption does not apply to a person who is not a lawful resident of the home. He appealed. Held: Affirmed. When a legally correct instruction is requested, it should be given if supported by substantial evidence. Section 198.5 was intended to give residential occupants additional protection where they are confronted by unlawful intruders in their home. In determining the scope of the term “residence,” courts have focused on the protection the inhabitant of a structure reasonably expects. The court here determined that the Legislature did not intend to restrict the application of section 198.5 to those who actually own their homes. If the jury believed Grays’ testimony that he was living in the residence, it could have found he had a reasonable expectation of protection against unwanted intruders. Although the trial court found that Grays was not legally subletting the unit, the evidence showed he had been living in the home for months, paid rent, kept his belongings there, and had access to a key to the home. The trial court therefore erred in refusing to instruct pursuant to section 198.5. [Editor’s Note: In an unpublished portion of the opinion, the Court of Appeal concluded that the error was harmless based on the remaining evidence.]

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/A139538.PDF