Section 3477 | CALCRIM (Jury Instructions)

burden, you must find the defendant not guilty of [attempted] (murder/
[or] manslaughter).
New January 2006; Revised September 2022
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give defense instructions supported by
substantial evidence and not inconsistent with the defendant’s theory of the case.
(See People v. Baker (1999) 74 Cal.App.4th 243, 252 [87 Cal.Rptr.2d 803]; People
v. Barton (1995) 12 Cal.4th 186, 195 [47 Cal.Rtpr.2d 569, 906 P.2d 531]; People v.
Slater (1943) 60 Cal.App.2d 358, 367–368 [140 P.2d 846] [error to refuse
instruction based on Pen. Code, § 197, subd. 2 when substantial evidence supported
inference that victim intended to enter the habitation].)
Penal Code section 197, subdivision 2 provides that “defense of habitation” may be
used to resist someone who “intends or endeavors, by violence or surprise, to
commit a felony . . . .” (Pen. Code, § 197, subd. 2.) However, in People v. Ceballos
(1974) 12 Cal.3d 470, 477–479 [116 Cal.Rptr. 233, 526 P.2d 241], the court held
that the felony feared must be “some atrocious crime attempted to be committed by
force.” (Id. at p. 478.) Forcible and atrocious crimes are those crimes whose
character and manner reasonably create a fear of death or serious bodily harm. (Id.)
Ceballos specifically held that burglaries which “do not reasonably create a fear of
great bodily harm” are not sufficient “cause for exaction of human life.” (Ibid.)
Thus, although the statute refers to “defense of habitation,” Ceballos requires that a
person be at risk of great bodily harm or an atrocious felony in order to justify
homicide. (Ibid.) The instruction has been drafted accordingly.
If the defendant is asserting that he or she was resisting the commission of a
forcible and atrocious crime, give the first option in element 1 and insert the name
of the crime. If there is substantial evidence that the defendant was resisting a
violent entry into a residence for the general purpose of committing violence against
someone inside, give the second option in element 1. (See Pen. Code, § 197, subd.
2.) The court may give the bracketed words “riotously” and “tumultuously” at its
discretion.
Related Instructions
CALCRIM No. 3477, Presumption That Resident Was Reasonably Afraid of Death
or Great Bodily Injury.
AUTHORITY
•
Instructional Requirements. Pen. Code, § 197, subd. 2.
•
Actual and Reasonable Fear. See Pen. Code, § 198; see People v. Curtis (1994)
30 Cal.App.4th 1337, 1361 [37 Cal.Rptr.2d 304].
•
Burden of Proof. Pen. Code, § 189.5.
•
Fear of Imminent Harm. People v. Humphrey (1996) 13 Cal.4th 1073, 1082 [56
CALCRIM No. 506
HOMICIDE
230

prosecution improperly argues great bodily injury may be shown by greater than
minor injury alone. (Compare People v. Medellin (2020) 45 Cal.App.5th 519,
533–535 [258 Cal.Rptr.3d 867] [the definition was reasonably susceptible to
prosecutor’s erroneous argument that the injury need only be greater than minor]
with People v. Quinonez (2020) 46 Cal.App.5th 457, 466 [