It looks like he may not face charges since California law allows the use of deadly force against an intruder. It is commonly known as the "Make My Day" rule.
Sara Navon lives below the victim's bedroom where the confrontation between the victim and the suspect took place.
"Jay's bedroom is up there and that's where the whole incident happened and so I immediately looked up at the ceiling," said Navon.
That's when she discovered a bullet had gone through her ceiling. Pieces of tile and insulation were all over her desk and on the floor. Navon was in her unit during the home invasion and climbed the stairs when she heard the confrontation.
"And I heard him say, 'Oh no, oh no, oh no,'" said Navon.
She ran back downstairs to call police.
The victim, 90-year-old Leone, shot the intruder three times. The suspect then shot Leone in the face and drove off.
Police found the suspect, a 30-year-old in this car. He was rushed to the hospital.
ABC7's legal consultant Dean Johnson says under California law, Leone was acting in self defense.
"If someone forcefully, unlawfully enters your residence, it's presumed that they're there to use deadly force and therefore as a homeowner you are presumed the right to respond," said Johnson.
A similar incident happened to an 18-year-old mother in Oklahoma on New Year's Eve when an intruder tried to break in. The woman asked the 911 dispatcher if she could shoot the suspect.
Thursday Leone's sister, Ann Cognato, told us he was recovering.
"He's dizzy, nauseous. I guess if we had a bullet go through our head, I guess anyone would be a little nauseous. Overall, he's fine. He's doing very well," said Cognato.
"He was saying, 'Too bad I didn't kill him, too bad I didn't kill him' and he kept saying that," said Navon.
Leone will be transferred to another hospital in the next few days. The suspect will remain at Marin General Hospital for the time being.