Brown

A jury convicted defendant of assault with a deadly weapon and found he personally used a firearm, but did not personally inflict great bodily injury on the victim. (Pen. Code, §§ 245, subd. (a)(2), 12022.5, subds. (a), (d), 12022.7; all further section references are to the Penal Code, unless otherwise specified.) There was evidence showing the victim entered defendant’s front porch and advanced toward defendant with a hammer raised back at shoulder-height after the two had argued about a contract under which the victim was to perform landscaping work at defendant’s house. At this point, defendant, standing in the doorway of his home, shot the victim in the leg. According to defendant he did so in fear for his life.

In the published portion of this opinion, we hold that defendant was not entitled to a requested instruction based on section 198.5, the “Home Protection Bill of Rights.” 1 Although there was evidence that the victim’s entry onto defendant’s front porch was unlawful and forcible, an entry onto a front porch like defendant’s does not constitute entry into a residence as required under section 198.5. The porch in this case is an unenclosed front porch, without…

I concur in the judgment and opinion except for part 1, as to which I write separately.

The real issue is whether an open front porch may be “forcibly entered” within the meaning of Penal Code section 198.5. It arises out of an altercation in which the defendant shot his bricklayer in a dispute about a brick flower bed. According to defendant’s testimony, at the time of the shooting he was standing just inside the screen door of his house with a handgun. “Neal [the bricklayer, who was carrying a hammer,] had stepped over the flower bed and had come up to the first level of the [open] porch, approximately five feet from defendant. Defendant fired the gun through the screen door, hitting Neal in the leg.”

The defendant invokes the presumption of Penal Code section 198.5 as a defense to the charge that he shot Neal with the intention of inflicting great *1500 bodily injury. It provides in pertinent part that a 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, . . . when that force is used against another person . . . who…

[Opinion certified for partial publication. [*] ]

OPINION

DAVIS, J.

A jury convicted defendant of assault with a deadly weapon and found he personally used a firearm, but did not personally inflict great bodily injury on the victim. (Pen. Code, §§ 245, subd. (a)(2), 12022.5, subds. (a), (d), 12022.7; all further section references are to the Penal Code, unless otherwise specified.) There was evidence showing the victim entered defendant's front porch and advanced toward defendant with a hammer raised back at shoulder-height after the two had argued about a contract under which the victim was to perform landscaping work at defendant's house. At this point, defendant, standing in the doorway of his home, shot the victim in the leg. According to defendant he did so in fear for his life.

In the published portion of this opinion, we hold that defendant was not entitled to a requested instruction based on section 198.5, the "Home Protection Bill of Rights." [1] Although there was evidence that the victim's entry onto defendant's front porch was unlawful and forcible, an entry onto a front porch like defendant's does not constitute entry into a residence as required under section…