Return to CALJIC Part 14-17 – Contents
F 14.50 n1 Burglary: Improper Comment On Character Of Structure (PC 459).
In 1990, FORECITE proposed modification of CJ 14.50 to avoid removing from the jury the decision of whether or not the defendant entered a “structure” within the meaning of PC 459. (Per People v. Douglas DEPUBLISHED (90) 219 CA3d 1301, 1306 [269 CR 40].)
In its January 1991 pocket part, CALJIC adopted FORECITE’S proposed modification of CJ 14.50.
[Research Note: See FORECITE BIBLIO 14.50]
F 14.50 n2 Burglary: Intended Felony Need Not Be In The Building Which Was Entered (PC 459).
The intent to commit larceny or any felony per PC 459 is not confined to an intent to commit the crime in the building which is entered. Burglary liability accrues if at the time of entry the defendant intended to commit the offense in the “immediate vicinity” of the place entered by defendant, if the entry was made as a means of facilitating the commission of the theft or felony, and if the two places were so closely connected that intent and consummation of the crime would constitute a “single and practically continuous action.” (People v. Wright (62) 206 CA2d 184, 191 [23 CR 734]; see also People v. Ortega (92) 11 CA4th 691, 696 [14 CR2d 246].)
However, in Ortega the court held that the “immediate vicinity” requirement is inapplicable to an entry with the intent to commit extortion. Upon such unlawful entry, “an extortionist need only intend that the entry be linked to the extortion so as to constitute a part of continuous transaction.” (Ortega 11 CA4th at 696.)
[Research Note: See FORECITE BIBLIO 14.50]
F 14.50 n3 Burglary: Instruction On Misdemeanor Lesser (PC 459).
When burglary is predicated upon an intent to commit an offense for which there is a lesser included misdemeanor, failure to instruct upon the misdemeanor (except theft) may be reversible error because burglary requires an intent to commit a felony or theft. (PC 459; e.g., People v. Peters UNPUBLISHED (C008103) [burglary conviction reversed for failure to instruct on misdemeanor false imprisonment as a lesser included of felony false imprisonment].) [The Peters opinion is available to FORECITE subscribers. Ask for Opinion Bank # O-110.]
[Research Note: See FORECITE BIBLIO 14.50]
F 14.50 n4 Burglary: Entry Of Multiple Rooms (PC 459).
Where a burglar enters several rooms in a single structure, each with felonious intent, and steals something from each, multiple conviction and punishment is precluded unless each room constituted a separate, individual dwelling place within the meaning of PC 459 and PC 460. (See People v. Richardson (2004) 117 CA4th 570 [where the victims were unrelated roommates sharing a single apartment, the simultaneous burglary of both their unlocked bedrooms did not constitute two separate offenses]; see also People v. Thomas (91) 235 CA3d 899, 906, fn 2 [1 CR2d 434]; see also People v. Church (89) 215 CA3d 1151, 1158 [264 CR 49].)
Compare FORECITE F 14.50 n21.
RESEARCH NOTES: See Annotation, Breaking and entering of inner door of building as burglary, 43 ALR3d 1147 and Later Case Service; see also, FORECITE BIBLIO 14.50.
F 14.50 n5 Burglary Felony Murder: Timing of Intent (PC 459).
“A murder is of the first degree if ‘committed in the perpetration of, or attempt to perpetrate’ any of certain enumerated felonies, one of which is burglary. Under this provision, a killing is committed in the perpetration of an enumerated felony if the killing and the felony are parts of one continuous transaction.” (People v. Hayes (90) 52 C3d 577, 631, internal citation and quotation marks omitted.) Accordingly, a defendant is guilty of murder in the perpetration of burglary if (1) defendant intended to commit the burglary when he killed the victim, and (2) the killing and the burglary of the victim’s house were “part of one continuous transaction.” (Id. at p. 632.) Thus, even if the jury finds that the defendant approached the victim’s house with intent to commit burglary but killed the victim outside before consummating that burglary, it could still find him guilty of burglary felony murder. (People v. Horning (2004) 34 C4th 871, 903.)
[See FORECITE F 14.54 n1]
[Research Note: See FORECITE BIBLIO 14.50]
F 14.50 n6 Burglary: Unlocked Trailer Coach (PC 459).
It is not necessary to show that a trailer coach was locked in order to prove burglary. (People v. Trimble (93) 16 CA4th 1255, 1258-60 [20 CR2d 495].)
[Research Note: See FORECITE BIBLIO 14.50]
F 14.50 n7 Inhabited Floating Home Added To Burglary Statute (PC 459).
Effective 1/1/94, entry of an inhabited floating home as defined by HS 18075.55(d) is burglary.
[Research Note: See FORECITE BIBLIO 14.50]
F 14.50 n8 Argument Rejected That Auto Burglary Is Inapplicable When The Only Intent Is To Steal The Car (PC 459).
In People v. Teamer (93) 20 CA4th 1454, 1458-61 [25 CR2d 296], the court rejected an argument that auto burglary is precluded when the defendant’s only intent is to steal the car itself.
[Research Note: See FORECITE BIBLIO 14.50]
F 14.50 n9 “Open Pole Barn” Without Walls Not A Building (PC 459).
In re Amber S. (95) 33 CA4th 185, 186-87 [39 CR2d 672], held that an “open pole barn” is not a building within the meaning of PC 459 because the reference to a “barn” in the statute refers to a “building” and a building must have walls.
F 14.50 n10 Burglary: Minor Not Liable As Aider And Abetter When Intended Offense Is Statutory Rape.
When an adult has unlawful sexual intercourse with a minor, in violation of PC 261.5, the minor is not criminally liable as an aider and abetter in the offense. Thus, the minor may not be charged with burglary, based on his or her intent to unlawfully enter a building with the intent to have sexual intercourse with an adult. (In re Meagan R. (96) 42 CA4th 17 [49 CR2d 325].)
F 14.50 n11 Vehicular Burglary: Removing Exterior Parts Doesn’t Constitute Entry Into Vehicle.
In re Young (96) 49 CA4th 861, 864 [57 CR2d 12] the court viewed the theft of headlights from their housings the same as the theft of windshield wipers or hubcaps: they are thefts (or attempted thefts), auto tampering or acts of vandalism, but not burglaries.
F 14.50 n12 Burglary: Due Process Challenge Where Specific Felony Is Not Charged.
People v. Holt (97) 15 C4th 619, 671-72 [63 CR2d 782] recognized that the failure to charge the specific intended felony in a burglary prosecution per PC 459 could implicate the notice, due process and fair trial guarantees of the 6th and 14th Amendments of the United States Constitution and Article 1, Section 7 and 16 of the California Constitution. However, to preserve such an error the defendant will normally be expected to demur on the ground that the charging allegation is not sufficiently definite. Additionally, waiver of the error may occur if the defendant does not object to the jury instructions. (Holt, 15 C4th at 672.)
F 14.50 n13 Burglary Based On Theft Requires Intent To Permanently Deprive.
Temporary removal of property from the premises cannot provide the basis for the crime of theft or burglary based on theft. (People v. Kwok (98) 63 CA4th 1236, 1248 [75 CR2d 40].) This is so because theft requires an intent to permanently deprive the owner of his or her property. (Ibid; see also People v. Dingle (85) 174 CA3d 21, 29-30 [219 CR 707].)
F 14.50 n14 Burglary: Contingent Intent Is Sufficient.
(See People v. Fond (99) 71 CA4th 127 [83 CR2d 660] [intent sufficient for burglary where defendant intended that sex be consensual or forcible if necessary].)
F 14.50 n15 Burglary: Applicability Of Claim Of Right.
(See generally FORECITE F 9.40a, F 9.40b, and F 9.40c.)
F 14.50 n16 Defendant May Be Convicted Of Burglary And Receiving Or Concealing Stolen Property.
In People v. Allen (99) 21 C4th 846 [89 CR2d 279] the Supreme Court held that a burglar may be convicted both of burglary (PC 459) and of receiving the goods taken in the burglary. (PC 496.)
F 14.50 n17 Burglary: Claim Of Right As Defense Theory.
[See Brief Bank # B-862 for briefing on this issue.]
F 14.50 n18 First Degree Burglary Of Vehicle Requires That Vehicle Be Locked.
PC 459 defines burglary of an automobile as entry of a “vehicle … when the doors are locked…” The locking element has raised a number of issues including the following:
Whether Opening Trunk Of Unlocked Vehicle Is Auto Burglary. (See People v. Allen (2001) 86 CA4th 909 [use of trunk latch in passenger compartment to open trunk in otherwise unlocked car did not constitute auto burglary].
Whether Reaching Through Open Window Of Locked Car is Auto Burglary. Compare People v. Woods (80) 112 CA3d 226 [reaching in rolled-down window of locked car is not burglary] with In re James B. (2003) 109 CA4th 862 [reaching through partially rolled down window to take cell phone is auto burglary].
Whether Breaking A Window To Gain Entry Is Sufficient To Prove That The Auto Was Locked. Compare People v. Burns (52) 114 CA2d 566 [broken window insufficient to prove the car was locked] with People v. Rivera (2003) 109 CA4th 1241 [broken window sufficient].
F 14.50 n19 Burglary: Whether Removal Of Window Screen Is Burglary.
See FORECITE F 14.50d.
F 14.50 n20 Burglary: Intent To Facilitate Commission Of A Crime Somewhere Else Is Sufficient.
(See People v. Griffin (2001) 90 CA4th 741, 748-49 [109 CR2d 273] [defendant may be found guilty of burglary if entry was made to facilitate subsequent crime not sharing attributes of proximity in time and place].)
F 14.50 n21 Burglary: Entry Of Interior Room Is Burglary (PC 459 & PC 460).
People v. Sparks (2002) 28 C4th 71 [120 CR2d 508] held that burglary can be committed by entry into a room within a single-family residence with felonious intent even if the felonious intent was not formed until after entry into the residence.
F 14.50 n22Burglary: Taking Property With Even Slight Intrinsic Value Constitutes Larceny.
In California, the taking of any item of personal property of even slight intrinsic value can constitute larceny. (See People v. Quiel (45) 68 CA2d 674, 678 [157 P2d 446]; People v. Leyvas (46) 73 CA2d 863, 866 [167 P2d 770] [ration stamps]; People v. Franco (70) 4 CA3d 535, 542 [84 CR 513] [cigarette carton item of some value, even if empty]; People v. Martinez (2002) 95 CA4th 581 [115 CR2d 574] [intent to take shower and use soap and shampoo constituted intent to commit larceny].)
F 14.50a
Burglary: Actions After Entry Relevant To Intent
(PC 454)
*Modify ¶ 3 of CJ 14.50 to provide as follows [added language is capitalized; deleted language is between <<>>]:
<<It is immaterial>> THERE IS NO REQUIREMENT THAT the intent with which the entry was made was thereafter carried out SO LONG AS THE DEFENDANT HAD THE NECESSARY INTENT AT THE TIME OF ENTRY. HOWEVER, IN DETERMINING WHETHER OR NOT THE ENTRY WAS ACCOMPANIED BY THE NECESSARY INTENT, YOU SHOULD CONSIDER WHETHER OR NOT THE INTENT ASSERTED BY THE PROSECUTION WAS CARRIED OUT BY THE DEFENDANT ONCE [HE] [SHE] MADE ENTRY.
Points and Authorities
It is well-established that in a burglary prosecution the people must prove that the entry was made with the intent to commit theft or some other felony. (See, e.g., People v. Markus (78) 82 CA3d 477, 481 [147 CR 151].) Because direct evidence of intent is seldom available, however, burglary prosecutions must often rest upon circumstantial evidence to show intent. (See, e.g., People v. Earl (73) 29 CA3d 894, 896 [105 CR 831].) Circumstances surrounding the entry — such as possession of burglary tools — are viewed as the type of circumstantial evidence which can give rise to an inference that the defendant intended to commit theft when he entered the premises. (See, e.g., People v. Nichols (61) 196 CA2d 223, 226-27 [16 CR 328].)
In this context, one fact the courts have long relied upon to support an inference of intent to steal is the fact that the defendant, in fact, did steal. (See, e.g., People v. Wolfe (67) 257 CA2d 420, 425 [64 CR 855] [defendant’s possession of items stolen from burglarized premises is a circumstances “supporting the necessary implied finding that when defendant entered the … residence he did so with the intent to commit theft therein ….”]; People v. Earl 29 CA3d at 897; People v. Holley (61) 194 CA2d 538, 540-41 [15 CR 44].) These cases recognize the practical reality that a defendant’s theft of items from the burglarized premises is strong circumstantial evidence that when that defendant entered the premises, he intended to steal.
The obvious corollary to this principle is that when nothing is stolen from a burglarized premise, a defendant should be able to argue that this constitutes circumstantial evidence that the defendant did not intend to steal when he entered the premise. This does not mean that the lack of a theft precludes a conclusion that the defendant harbored the requisite intent. Rather, it simply means that the fact that a defendant has not carried out a theft is legitimate circumstantial evidence of his intent. It may not be considered persuasive by the jury, but it deserves to be considered.
CJ 14.50, however, tells the jury that it is immaterial whether the intent with which the entry was “made was thereafter carried out.” This may be technically correct, but it is definitely misleading. A proper instruction should tell the jury that the absence of theft may be considered as circumstantial evidence of the absence of intent, but if the jury finds that defendant had the intent to steal when he entered, the fact that nothing was taken does not preclude a burglary conviction.
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
F 14.50b
Burglary: Defense Of Consent
(PC 454)
*Add to CJ 14.50 when appropriate:
A burglary is not committed when:
i. the defendant had an unconditional possessory right to enter the premises, or
ii. A person having an unconditional possessory right to enter the premises expressly invited the defendant to enter, knowing the felonious intention in the mind of the defendant.
If you have a reasonable doubt as to whether [the defendant had an unconditional possessory right to enter the premises] [the owner or lawful occupant of the property consented to the defendant’s entry with knowledge of the defendant’s felonious purpose], you must give the defendant the benefit of that doubt and find [him] [her] not guilt of burglary.
Points and Authorities:
There are occasions when consent given by the owner or occupant of the property will constitute a defense to a burglary charge. One such occasion is when the accused is the owner or lawful occupant of the property. (See People v. Gauze (75) 15 C3d 709, 714 [125 CR 773]; see also People v. Felix (94) 23 CA4th 1385, 1397 [28 CR2d 860]; but see People v. Clayton (98) 65 CA4th 418, 422-23 [76 CR2d 536] [defendant given key by husband for purpose of killing wife constitutes burglary].) People v. Gill (2008) 159 CA4th 149 [defendant waived unconditional right to enter the house by voluntarily leaving, giving up keys and heeding directive to stay out].
Consent is also a defense when the owner or lawful occupant “actively invites the accused to enter, knowing the illegal, felonious intention in the mind of the invitee.” [Citation.] [Emphasis in original.] (Felix 23 CA4th at 1397-98.) However, the occupant’s knowledge is crucial. “The occupant must know the person he is inviting into the home intends to interfere with his possessory rights; and the invitee must be able to show the occupant possess this knowledge.” (Felix 23 CA4th at 1398.)
People v. Frye (98) 18 C4th 894, 954 [77 CR2d 25] concluded that the proper test is whether the defendant had “an unconditional possessory right to enter.” (See also People v. Salemme (92) 2 CA4th 775, 779-81 [3 CR2d 398].) Hence, the jury must determine from the evidence whether, based either on consent or the personal property rights of the accused, there was an unconditional possessory right to enter
(See also FORECITE F 16.320 n2.)
Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See FORECITE PG VII(C).]
F 14.50c
Burglary: Definition Of “Entry”
(PC 454)
*Add to CJ 14.50 when appropriate:
An entry does not occur unless a part of the person’s body or a tool or instrument wielded by the person [crossed the boundary separating the interior airspace of the building] [penetrate the interior space between the window screen and the window from the outdoors] [_____________].
Points and Authorities
People v. Valencia (2002) 28 C4th 1 [120 CR2d 131]; People v. Failla (66) 64 C2d 560, 569 [51 CR 103]; People v. Wise (94) 25 CA4th 339, 345 [30 CR2d 413].
See also FORECITE F 14.50d.
F 14.50d
Burglary: Definition Of “Structural Boundary”
(PC 454)
*Add to CJ 14.50 when appropriate:
To enter a structure, a person must [cross the boundary separating the interior airspace of the building] [penetrate the interior space between the window screen and the window from the outdoors] [____________]. For these purposes any integral part of the structure is considered to be part of the structure.
Points and Authorities
The determination of the boundaries of a structure is dependent upon whether the entry was made into “an integral part of the structure.” (People v. Wise (94) 25 CA4th 339, 346 [30 CR2d 413].) Hence, entry into a carport, garage, breezeway, loading dock or even a gated stairwell may constitute burglary. Nevertheless, it is for the jury to determine whether the area entered was an “integral part of the structure.” (Ibid.; but see People v. Fox (97) 58 CA4th 1041 [68 CR2d 424] [no error in instructing jurors that attached garage is part of inhabited structure].)
NOTES
In some situations the “interior airspace” of the structure definition may not suffice. The test is whether “a reasonable person would believe that the element of the building in question enclosed an area into which a member of the general public could not pass without authorization.” (People v. Valencia (2002) 28 C4th 1, 12 [120 CR2d 131].) (This is a legal question upon which the jury is not to be instructed. (Ibid.).) Hence, penetration of a window screen may constitute a burglary. (Id. at 6099 [“penetration into the area behind a window screen amounts to an entry of a building within the meaning of the burglary statute even when the window itself is closed and is not penetrated…”].)
See also FORECITE F 14.50c.
F 14.50e
Determination Of Whether Entry
Violated Possessory Interest In Building
*Add to CJ 14.50 when appropriate:
In deciding whether the defendant is guilty of the crime of burglary, you must determine whether the defendant used a tool or instrument for the purpose of gaining entry and violating the occupant’s possessory interest in the building. Using a tool or instrument, whether as a prelude to physical entry, or for the purpose of reaching into the building to remove property violates the occupant’s possessory interest in the building.
If you determine that the tool or instrument was not used for any of those purposes, or have a reasonable doubt whether the tool or instrument was used for any of those purposes, you must find the defendant not guilty.
Points and Authorities
People v. Davis (98) 18 C4th 712 [76 CR2d 770] held that inserting a stolen ATM card, mailing a forged check to a bank, or placing a forged check into a chute in the window of a check-cashing facility is not using an instrument to effect an entry within the meaning of the burglary statute as neither act violates the occupant’s possessory interest in the building, as does using a tool to reach into a building and remove property. (Davis, 18 C4th at 722, disapproving People v. Ravenscroft (88) 198 CA3d 639 [243 CR 847].)
Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See FORECITE PG VII(C).]
F 14.50f
Burglary: Entry By Object Or Instrument
Not In Actual Physical Contact With Defendant
Or In His/Her Immediate Control
*Add to CJ 14.50:
An entry of the building requires penetration into the airspace inside the building with any part of the defendant’s body or a tool or instrument under [his] [her] control.
[The above instruction should be supplemented by giving CJ 1.24 to define actual possession.]
Points and Authorities
While People v. Davis (98) 18 C4th 712 [76 CR2d 770] does not contain a succinct definition of entry by instrument it did present examples of what was and what was not an entry. In every example cited by the court, an instrument under the direct and continued control of a person at the moment it entered the air space of the building was deemed to have been an entry under the burglary statute. Under existing case law and the suggested examples in Davis, entry by instrument can only occur if the defendant’s hand was extended into the airspace by touching the instrument or the instrument entered the airspace while under the control of the person outside. The possessory interest protected by the burglary statute is only infringed by another person’s unauthorized entry because the possessory interest arises from the danger posed at the moment of entry by the presence of the defendant or an instrument under his control. (Davis, 18 C4th at 720-21.) CJ 1.24 defines actual possession as “knowingly hav[ing] direct physical control over a thing.” Therefore, in order to interfere with possession the defendant must himself possess some portion of the airspace, either with his own body or through a tool in his actual possession at the instant the entry occurs.
Therefore, an act such as throwing a rock through a window would not constitute a burglary, as the defendant would not have either physical contact or immediate control over the rock at the moment of entry. [Briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-785.]
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
F 14.50g
Burglary: Definition Of “Lock”
*Add to CJ 14.50 as follows:
The word “lock” means to make fast by interlinking or interlacing of parts such that some force is required to break the seal to permit entry.
Points and Authorities
In re Lamont R. (88) 200 CA3d 244, 247 [245 CR 870]; People v. Massie (66) 241 CA2d 812, 817 [51 CR 18].
F 14.50h
Burglary: Entry Requires Crossing Into The
Interior Airspace Of The Structure
*Add to CJ 14.50 when appropriate:
See FORECITE F 14.50d.