What is the “Castle Doctrine?” Is it a Defense?

We then explain or at least discuss how this can be done.

We usually do not then explain the “Castle Doctrine,” set forth at Penal Code § 198.5, but we really should so that anyone with a firearm understands the limits of its use in responding to a residential burglary of his or her home.  

This article is presented to plug up this hole in our legal consultation.

Penal Code § 198.5 states, “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.”

In other words, California law provides a presumption that one will have a reasonable fear of imminent death or great bodily injury if another person not in the person’s household unlawfully and forcibly enters the home, one’s “castle.”  One’s subsequent use of a gun, for example, to neutralize this threat is presumed reasonable.  In other words, self defense by using a gun within one’s home (one’s castle) is presumed reasonable if responding to a burglar therein.  

This is similar to the “stand one’s ground” right, but it the “stand one’s ground” right is more narrow.  The “stand one’s ground” right provides one does not have the duty to retreat to avoid danger.  One has the right to use reasonable self defense in response to a danger.  The amount of force used is what is reasonable may include deadly force or force likely to cause great bodily injury, but only if the threat suggests such danger is imminent as viewed objectively by a reasonable person and the immediate use of such force is necessary to prevent that harm to oneself or one’s immediate family. People v. Humphrey (1996) 13 Cal.4th 1073.

In the “Castle Doctrine,” in contrast, the resident does not need to show the court that the intruder had a weapon, attacked anyone, or made any threats. People v. Silvey (1997) 58 Cal. App. 4th 1320; see also Penal Code §§ 195, 196, 197.

It is important to distinguish what exactly counts as a residence.  It does not include one’s front yard, back yard, or side yard areas, although one certainly may feel in danger if an intruder enters such areas of one’s property.

An unenclosed front porch also does not count as part of a “residence” under California’s castle doctrine.  So even if an intruder enters an unenclosed front porch with violent intentions, the castle doctrine would not apply because the intruder had not yet tried to enter the home itself.  If the resident of the home then injured or killed the intruder on the porch, the legal presumption provided by the castle doctrine would not apply.  Instead, the resident would have to rely on more generic self-defense grounds to try to justify using force against the intruder. See People v. Brown (3d App. Dist., 1992) 6 Cal. App. 4th 1489, People v. Chen (4th App. Dist., 2020) 50 Cal. App. 5th 952.

While the “Castle Doctrine” is reassuring and may provide one comfort, we would caution that anyone who uses force to shoot a burglar in one’s home could cause the burglar, if armed, to shoot back.  This then only escalates the problem, often with tragic consequences.  

The wiser response is to try to leave the home and call the police about the burglar once one is outside the home, or if one is in the home and cannot leave, allow the burglar to complete the crime rather than escalating the situation by shooting the person.  Then call the police.