People v. Gleghorn

In People v. Gleghorn (1987) 193 Cal. App. 3d 196, the defendant entered the room of the victim, started beating the victim's bed with a stick and set fire to some clothes. ( Id. at pp. 199-200.) At that point, the victim shot an arrow at the defendant. ( Id. at p. 200.) After he was convicted of assault, defendant argued on appeal he was legally justified in defending himself from the victim's deadly counterattack, because he initially committed only a simple assault. ( Id. at p. 201.) The appellate court rejected this claim and concluded that, because the victim was justified in reasonably fearing for his life by the defendant's initial lethal actions and acted lawfully to defend himself, the defendant did not have the right of self-defense. ( Id. at p. 202.) The Gleghorn court also rejected defendant's claim the trial court erred in giving CALJIC No. 5.42. ( People v. Gleghorn, supra, 193 Cal. App. 3d at pp. 202-203.) The defendant argued that CALJIC No. 5.42 is inconsistent with Penal Code section 198.5. ( People v. Gleghorn, supra, at pp. 203-204.) Section 198.5 provides in pertinent part: "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." The court concluded that, just because the presumption in section 198.5 did not apply to the victim, "that does not mean that the victim did not have the right to defend himself against a violent attack in his own house . . . ." ( People v. Gleghorn, supra, at pp. 203-204.) The court held that the trial court properly instructed the jury on the victim's right to defend himself. (Ibid.)