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 *1500bodily 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 unlawfully and forcibly enters ... the residence and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred.” (Italics added.)
As emphasized the presumption may be invoked only when a residence has been forcibly entered. That limits what counts as a residence. The majority’s preoccupation with the statutory law of burglary, and its consequent adoption of a reasonable expectations test, ignores the language of section 198.5. It does not say “unauthorized” entry; it requires an “unlawful and forcible entry.” Both the subject of section 198.5 (the protection of habitation and occupancy) and the requirement that the force be used within a residence into which a “forcible entry occurred” signify that the ordinary law of burglary does not define the circumstances of entry and hence does not define the nature of the structure subject to entry. “Forcibly” is used to modify “enters” and not to signify an intended use of force against the occupant.
Section 198.5 has no application to a structure or part thereof that could not be entered by means of force. We are directed to give the words of a statute their ordinary and popular sense unless some technical usage is made apparent. The ordinary meaning of “forcible entry” is that given in Code of Civil Procedure section 1159: “Every person is guilty of a forcible entry who . . . [f] 1. By breaking open doors, windows, or other parts of a house, or by any kind of violence or circumstance of terror enters upon or into any real property . . . .” Applying this definition, section 198.5 applies only to a part of the residence to which entry had been gained “[b]y breaking open doors, windows, or other parts” or “by any kind of violence or circumstance of terror . . . .” An open porch does not qualify because it could not be broken into or entered by violence.
Section 198.5 implies a test similar to the common law of burglary. “In order to constitute a breaking at common law, there had to be the creation of a breach or opening; a mere trespass at law was insufficient.” (2 LaFave & Scott, Substantive Criminal Law, § 8.13, p. 464, fn. omitted.) It is dissimilar in that at the common law “the breaking need not involve force or violence, for once the house was closed the law protected it.” (Ibid.) That, I think, is all the analysis that is needed to resolve this case. Section 198.5 has no *1501application. The bricklayer Neal did not enter any portion of defendant’s residence that could be forcibly entered.
*1502Appendix
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