Quesada

Defendant’s house was burglarized during the night while no one was at home. Two days later, under circumstances we shall describe, defendant shot and killed the burglar. In response to charges of murder with use of a firearm, defendant claimed justification under Penal Code section 197, subdivision 4, which provides that “[h]omicide is.. .justifiable. . .When necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed,...” By case law, that justification exists “only where the felony committed is one which threatens death or great bodily harm.” (People v. Piorkowski (1974) 41 Cal.App.3d 324, 329 [ 115 Cal.Rptr. 830 ].) The trial court instructed the jury that it was its duty to determine whether the burglary met that description, taking into account the surrounding facts. The jury, apparently rejecting the asserted justification defense, found defendant guilty of involuntary manslaughter and found also that he used a firearm in the commission of that offense. The trial court suspended imposition of sentence, and defendant was admitted to probation conditioned on confinement in the county jail for one year.

On appeal,…