AB 1333, as introduced, by Assemblyman Rick Zbur. Crimes: homicide.
Existing law defines homicide as the unlawful killing of a human being, or a fetus, with or without malice aforethought, as specified. Existing law establishes certain circumstances in which homicide is justifiable, as specified.
This bill would eliminate circumstances of apprehension under which homicide is justifiable, including, among others, in defense of a habitation or property. The bill would additionally clarify circumstances in which homicide is not justifiable, including, among others, when a person theoretically uses more force than necessary to defend against a danger.
By expanding the scope of the crime of homicide, this bill would create a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Rick Chavez Zbur is an American attorney currently serving in the California State Assembly. He is also a former United States House of Representatives candidate. He is active in the environmental movement. Zbur is also notable as the first openly gay non-incumbent U.S. congressional primary candidate to win an election.
“AB 1333 was never intended to limit a crime victim’s right to defend yourself, your family, or home. The goal is to prevent wannabe vigilantes like Kyle Rittenhouse from provoking violence & claiming self defense after the fact. We will amend the bill to make this crystal clear,” according to Zbur’s post on X.
Rittenhouse fatally shot two men and wounded a third in Kenosha, Wisconsin, in 2020 in an altercation during a police protest. He was charged with homicide but pleaded self-defense and was acquitted.
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.
(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.
(3) When committed in the lawful defense of such person, or of a spouse, 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 or she 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.
(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.
Examples of forcible and atrocious crimes are murder, mayhem, rape, and robbery. Burglary has been included in the list of such crimes, but in view of the wide scope of burglary under the California Penal Code, it cannot be said that under all circumstances burglary constitutes a forcible and atrocious crime. Where the character and manner of the burglary do not reasonably create a fear of great bodily harm, there is no cause for exaction of human life or for the use of deadly force.
SECTION 197 of the Penal Code will be amended to read:
(a) Homicide is also justifiable when committed by any person in any all of the following cases:
(1) When resisting any attempt to murder any person, person or to commit a felony, or to do some great bodily injury upon any person.
(2) When committed in defense of habitation, property, or a person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony, or against one who manifestly intends and endeavors, endeavors in a violent, riotous, or tumultuous manner, to enter the habitation of another for the purpose of offering violence to any person therein.
(3) When committed in the lawful defense of such person, or of a spouse, 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 or she 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. accomplished.
(b) Homicide is not justifiable when committed by a person in all of the following cases:
(1) When the person was outside of their residence and knew that using force likely to cause death or great bodily injury could have been avoided with complete safety by retreating.
(2) When the person used more force than was reasonably necessary to defend against a danger.
(3) When the person was the assailant, engaged in mutual combat, or knowingly engaged in conduct reasonably likely to provoke a person to commit a felony or do some great bodily injury, except if either of the following circumstances apply:
(A) The person reasonably believed that they were in imminent danger of death or great bodily injury, and had exhausted every reasonable means to escape such danger other than the use of force likely to cause death or great bodily injury.
(B) 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. In good faith, the person withdrew from the encounter with the other assailant or assailants and indicated clearly to the other assailant or assailants that the person desired to withdraw and terminated the use of any force, but the other assailant or assailants continued or resumed the use of force.
No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.
Defendant was charged with involuntary manslaughter based upon shooting and killing of apparently unarmed participant in nighttime burglary of defendant's son's temporarily unoccupied residence while victim was fleeing from scene of burglary. The Superior Court, Kern County, Gary T. Friedman, J., set aside information charging defendant, and People appealed. The Court of Appeal, Hamlin, J., held that statute which provides homicide is justifiable when necessarily committed in attempting, by lawful ways and means, to apprehend any person for commission of any felony required that information charging defendant with involuntary manslaughter be set aside.
- Homicide is justifiable when necessarily committed in attempting, by lawful ways and means, to apprehend any person for commission of any felony required that information charging defendant with involuntary manslaughter be set aside, where defendant shot and killed apparently unarmed participant in nighttime burglary of his son's temporarily unoccupied residence while that participant was fleeing from scene of burglary.
- Evidence at murder trial did not show that defendant was attempting to arrest victim at time he used deadly force and thus did not warrant jury instruction on justifiable homicide while making an arrest, although defendant interrupted a common law burglary in progress; evidence showed that defendant chased victim about a quarter mile with an axe and killed him, there was no evidence defendant was attempting to arrest victim, and defendant stated he killed victim because, as he put it, “just the way he looked to me, dude, he wasn't a good person,” and “these people are the type of people that are gonna threaten my life, dude.”
- The fact there was a common law burglary does not, in and of itself, justify the use of deadly force in apprehending the perpetrator.
- As a matter of law, unless the felony threatens death or great bodily harm, the use of deadly force in apprehending the perpetrator is an unnecessary and unjustified use of force.
- An alteration of CPC §197 might not be necessary as more recent cases such as People v. Zinda show the legal interpretation has changed from 1985's People v. Martin that fully backed the apprehension part of the justifiable homicide law.
- The issue of withdrawal from conflict or further conflict is already discussed in CPC §197(3). Deadly force is not excused if combat is withdrawn from.
- Taking a stance of releasing a dangerous person who has committed a felony and allowing him/her to flee leaves a dangerous person free to offend again. This acts against the interest of public safety.
- The law is murky as it contradicts itself with the (b) section of CPC §197.
- The language is too vague CPC (b)(2) where "using more force than necessary" is concerned. It would be unclear as it is still a situational and subjective matter. This makes this part moot.