Return to CALJIC Part 14-17 – Contents
F 14.59 n1 Burglary: After Acquired Intent (PC 459).
See FORECITE F 14.50 n21.
As to the timing of intent for an aider and abettor see FORECITE F 14.54a.
F 14.59 n2 Burglary: After Acquired Intent — Repeated Entries (PC 459).
The accused must form the intent to aid and abet before or during any one of multiple entries by the perpetrator during a brief time period. (People v. Escobar (92) 7 CA4th 1430, 1434-38 [9 CR2d 770].)
F 14.59 n3 Burglary: Theft Or Specific Intended Felony Must Be Charged (PC 459).
The general rule is that the jury need not agree upon what particular intent the defendant had when entering the building for purposes of burglary. (See, People v. Failla (66) 64 C2d 560, 567-69 [51 CR 103].) However, this rule does not relieve the prosecution of its responsibility to provide notice of which intent it seeks to prove. Due process requires that an accused be advised of the charges against him so he may have a reasonable opportunity to prepare and present his defense. (In re Oliver (48) 333 US 257, 273 [92 LEd 682; 68 SCt 499]; Cooke v. U.S. (25) 267 US 517, 536-37 [69 LEd 767; 45 SCt 390].) “A person cannot be convicted of an offense (other than a necessarily included offense) not charged against him by indictment or information, whether or not there was evidence at trial to show that he had committed that offense. [Citations.]” (In re Hess (55) 45 C2d 171, 174-75 [288 P2d 5].) Therefore, instruction upon an intent predicate to burglary which was not charged in the information (e.g., rape when theft was charged) violates the due process principles of the 14th Amendment. (See FORECITE F 8.21 n5; People v. O’Keefe UNPUBLISHED PORTION (90) 222 CA3d 517 [271 CR 769]; but see People v. Jones (90) 51 C3d 294, 317 [270 CR 611] [preliminary hearing is sufficient to provide the defendant practical notice].) [Additional briefing on this issue and a copy of the O’Keefe opinion are available to FORECITE subscribers. Ask for Brief Bank # B-568 and Opinion Bank # O-151.]
F 14.59 n4 Burglary: Intended Offense May be Theft-Related.
People v. Nguyen (95) 40 CA4th 28 [46 CR2d 840] held that entry into a house with intent to give the victim a worthless check in exchange for various items constitutes burglary in violation of PC 459.
F 14.59 n5 Burglary: Intent Formed After Entry Of Structure But Before Entry Of Inner Room (PC 459 & PC 460).
(See FORECITE F 14.50 n21.)
F 14.59a
Burglary-Agreement As To Theft Or Felony Intended Not Necessary:
Guilt Limited To Burglary
*Modify first sentence of CJ 14.59 to provide as follows [added language is underlined and capitalized]:
If you are satisfied beyond a reasonable doubt and agree unanimously that defendant made an entry with the specific intent to steal or to commit ___, a felony, you should find the defendant guilty OF BURGLARY.
Points and Authorities
In People v. Holt (97) 15 C4th 619, 680 [63 CR2d 782] the California Supreme Court concluded that CJ 14.59 was not erroneous as a matter of law. However, there is no reason why the instruction should not be clarified at trial, upon request, as set forth above, to avoid any possibility of confusion.
F 14.59b
Burglary — Agreement As To Theft Or Felony Intended Not Necessary:
Deletion Of Unnecessary Language
*Modify CJ 14.59 as follows:
[Delete first sentence.]
Points and Authorities
The first sentence of CJ 14.59 is not necessary because it duplicates the other burglary instructions which specifically require a finding as to the requisite elements of burglary. The sole purpose of CJ 14.59 is to inform the jury that it does not need to unanimously agree as to what particular crime the defendant intended to commit during the entry period. This can be accomplished by use of the second sentence of CJ 14.59. Furthermore, the language of the first sentence of CJ 14.59 may conflict with other instructions advancing specific defenses or elemental requirements such as consent or after acquired intent.
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).]
