It was the noise outside that woke Richard Lozzio.
"At about 3 a.m., I heard someone trying to get in our front door," he said.
It was a man outside rattling his door knob and Lozzio ran to the locked door and called 911.
"I saw a young man in distress, seemed to me intoxicated and trying to get in our house," he said.
The man left wandered to a curb and then took off. About an hour later and a few doors down, there were more problems and gun fire.
"He fired his firearm from inside the residence outside at the individuals and then fled out the front door," San Jose Police Department Sgt. Ronnie Lopez said.
The homeowner fired multiple shots through a window into his backyard at whoever was pounding and banging. He tells police someone was trying to break-in.
"He was able to see two individuals and one had a silver hand gun," Lopez said.
A 24-year-old intruder was injured and the second person disappeared. Now, police must decide if the home owner was justified in using deadly force.
"Unless there is actual forcible unlawful entry, the homeowner can be in legal jeopardy," ABC7 Legal Analyst Dean Johnson said.
Johnson says it's a tough call. In California, you can't just shoot someone that comes into your backyard.
"Deadly force can only be used if someone is in eminent danger or fear of death or great bodily injury," he said.
San Jose district attorney must decide if that home owner was justified for shooting an intruder or will face charges.