FYI- Use of Deadly Force in CA Law

iVillage Member
Registered: 06-17-2007
FYI- Use of Deadly Force in CA Law
36
Tue, 03-18-2008 - 4:13pm

This is a paste from California Penal Code, Section 197-199, which deal with the instances in which homicide is legally acceptable. I know that all states look at it differently but Kathleen pointed out that no actual laws have been posted on this issue so I decided to take it on. Sorry it's so long. See my comments within. The last part is hugely important. Link posted at the top:

http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=86922924698+0+0+0&WAISaction=retrieve

"197. Homicide is also justifiable when committed by any person in
any of the following cases:
1. When resisting any attempt to murder any person, or to commit a
felony, or to do some great bodily injury upon any person; or,"

I think we can say rape, being a felony and likely causing great bodily injury, falls into this category clearly.

"2. When committed in defense of habitation, property, or person,
against one who manifestly intends or endeavors, by violence or
surprise, to commit a felony, or against one who manifestly intends
and endeavors, in a violent, riotous or tumultuous manner, to enter
the habitation of another for the purpose of offering violence to any
person therein; or,

This is a little stickier, but we're not really discussing killing someone who enters the house with the intent of raping someone. That's more of a side issue, but I wanted to post the law in its entirety.

"3. When committed in the lawful defense of such person, or of a
wife or husband, parent, child, master, mistress, or servant of such
person, when there is reasonable ground to apprehend a design to
commit a felony or to do some great bodily injury, and imminent
danger of such design being accomplished; but such person, or the
person in whose behalf the defense was made, if he was the assailant
or engaged in mutual combat, must really and in good faith have
endeavored to decline any further struggle before the homicide was
committed; or,"

So if you're trying to protect someone else engaged in the struggle, they must have made some effort to decline the struggle before you killed their assailant. Lots stickier and harder to prove.

"4. When necessarily committed in attempting, by lawful ways and
means, to apprehend any person for any felony committed, or in
lawfully suppressing any riot, or in lawfully keeping and preserving
the peace."

Pretty clear. Read on:

"198. A bare fear of the commission of any of the offenses mentioned
in subdivisions 2 and 3 of Section 197, to prevent which homicide
may be lawfully committed, is not sufficient to justify it. But the
circumstances must be sufficient to excite the fears of a reasonable
person, and the party killing must have acted under the influence of
such fears alone."

Boy, this changes things somewhat. So now you have to prove that the person came in/attacked someone else with the express intent of committing a felony or causing great bodily injury. Very hard to prove.

"198.5. 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."

Okay, so it's different when it's your own residence. That makes sense.

"As used in this section, great bodily injury means a significant
or substantial physical injury."

Do you think pregnancy resulting from rape is included in this definition? I doubt it.

"199. The homicide appearing to be justifiable or excusable, the
person indicted must, upon his trial, be fully acquitted and
discharged."

So, this part is very important. A woman who kills her attacker who has attempted/succeeded in raping her must be arrested, charged, indicted, placed into custody, held until bail is set and paid or the trial, at which point her lawyer will attempt to prove that, per California PC 197.1, she committed homicide in self-defense. It doesn't seem cut-and-dried at all to me. Look at the phrase "appearing to be justifiable or excusable." I assume that means "appearing" to the jury, since most criminal cases have juries. I have served as a jury foreperson on a criminal case and I can tell you that these people are not always in favor of following the court process. We had a mistrial, partially because there was one juror who said, before we entered deliberation, that he would make it a mistrial no matter what. You'd cringe if you heard some of the arguments I heard in the deliberation room.




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iVillage Member
Registered: 02-04-2008
Tue, 03-18-2008 - 8:49pm



Stand Your Ground in Ohio
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Written by Daniel White

iVillage Member
Registered: 06-17-2007
Tue, 03-18-2008 - 9:11pm
And all of these would have to be established by a jury during a trial, in a court of law. Like I said, it doesn't seem so cut-and-dried. Besides, I don't see the continuation of pregnancy as fitting any of these criteria.




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iVillage Member
Registered: 02-04-2008
Tue, 03-18-2008 - 9:34pm
Nope, I don't see the continuancy of pregnacy there either - but I do see to stop a rape .... and I do honestly believe that a pregnancy resulting from rape is the continuation of rape.

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iVillage Member
Registered: 06-17-2007
Tue, 03-18-2008 - 9:43pm
Yeah, but it doesn't seem like the law agrees with you. Besides, I really doubt that the woman in question would even have time to have an abortion, what with all the time she'd be spending in prison awaiting trial.




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iVillage Member
Registered: 02-04-2008
Wed, 03-19-2008 - 7:41am

What???


WE don't await trial in prison - prison is for those who have been convicted.

iVillage Member
Registered: 02-15-2005
Wed, 03-19-2008 - 9:55am

<<>>


That depends entirely on remand. So yes, people very often do await trial in prison.


Overheard:


Cube rat exiting front door: I'm going out. Can I bring back anything for anybody?
Voice from back of room: Johnny Depp.
Cube rat, disgustedly: Oh, nice, but I meant bring back anything to eat.
Different voice from back of room: Johnny Depp on a cracker.


iVillage Member
Registered: 03-26-2003
Wed, 03-19-2008 - 10:13am
Slight correction--prison is long term incarceration. Jail is usually used to hold prisoners awaiting trial. There is actually a difference. (MIL worked for the prison system in her home state.)

The 3 Day

Sandy
iVillage Member
Registered: 02-15-2005
Wed, 03-19-2008 - 10:37am
Yes - you are right - I was thinking along the lines of "in custody" as opposed to prison vs. jail.


Overheard:


Cube rat exiting front door: I'm going out. Can I bring back anything for anybody?
Voice from back of room: Johnny Depp.
Cube rat, disgustedly: Oh, nice, but I meant bring back anything to eat.
Different voice from back of room: Johnny Depp on a cracker.


iVillage Member
Registered: 08-31-2004
Wed, 03-19-2008 - 10:38am

<I do honestly believe that a pregnancy resulting from rape is the continuation of rape>


What about a woman who doesn't feel that way and doesn't want to abort the fetus she's carrying that was conceived in rape?


baby siggy
iVillage Member
Registered: 06-17-2007
Wed, 03-19-2008 - 10:45am

"WE don't await trial in prison - prison is for those who have been convicted."

I beg your pardon. She could very well be spending it in jail (thanks Sandy).

"And depending on the prosecutor and judge in the case - odds are that the woman would be free awaiting trial."

Do you have evidence to prove that those charged with homicide are often released without bail or given bail requirements of a reasonable sum? It has been my experience that low bail sums (for example, $5,000) are usually reserved for those accused of non-violent crimes.

"And with the law on her side"

The law is supposed to be objective. I would be very worried about a court system that had decided on someone's fate without examining the facts.

"- unless the jury is a bunch of ex rapists or anti gun advocates - she will be absolved."

Have you ever served on a jury? I had a woman on mine who insisted that the defendant must have done it because she would have done it if in the same situation. Two people on the jury agreed with her. I had a man say (before we went into deliberation) that he would make sure it was a mistrial no matter what.

The jury system is the best we have, but the U.S. court system does not require you to be a scholar of jurisprudence to serve on one. You could go in there thinking your job is to convict the person no matter what and no one would stop you, unless your opinion actually came out.




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