SERIES 1700 BURGLARY AND RECEIVING STOLEN PROPERTY
F 1700 NOTES
TABLE OF CONTENTS
F 1700 Note 1 Burglary—CALCRIM Cross-References And Research Notes
F 1700 Note 2 Burglary: Intended Felony Need Not Be In The Building Which Was Entered (PC 459)
F 1700 Note 3 Burglary: Instruction On Misdemeanor Lesser (PC 459)
F 1700 Note 4 Burglary: Entry Of Multiple Rooms (PC 459)
F 1700 Note 5 Burglary Felony Murder: Timing Of Intent (PC 459)
F 1700 Note 6 Separate Enumeration Of “Locked” Requirement
F 1700 Note 7 Burglary: Unlocked Trailer Coach (PC 459)
F 1700 Note 8 “Open Pole Barn” Without Walls Not A Building (PC 459)
F 1700 Note 9 Burglary: Minor Not Liable As Aider And Abettor When Intended Offense Is Statutory Rape
F 1700 Note 10 Burglary: Due Process Challenge When Specific Felony Is Not Charged
F 1700 Note 11 Burglary: Contingent Intent Is Sufficient
F 1700 Note 12 Burglary: Whether Removal Of Window Screen Is Burglary
F 1700 Note 13 Burglary: Intent To Facilitate Commission Of A Crime Somewhere Else Is Sufficient
F 1700 Note 14 Burglary: Entry Of Interior Room Is Burglary (PC 459 & PC 460)
F 1700 Note 15 Burglary: Taking Property With Even Slight Intrinsic Value Constitutes Larceny
F 1700 Note 16 Burglary: After Acquired Intent (PC 459)
F 1700 Note 17 Burglary: After Acquired Intent — Repeated Entries (PC 459)
F 1700 Note 18 Burglary: Theft Or Specific Intended Felony Must Be Charged (PC 459)
F 1700 Note 19 Burglary: Intended Offense May be Theft-Related
F 1700 Note 20 Burglary: Intent Formed After Entry Of Structure But Before Entry Of Inner Room (PC 459 & PC 460)
F 1700 Note 21 Defendant May Be Convicted Of Burglary And Receiving Or Concealing Stolen Property
F 1700 Note 22 Argument Rejected That Auto Burglary Is Inapplicable When The Only Intent Is To Steal The Car (PC 459)
Return to Series 1700 Table of Contents.
F 1700 Note 1 Burglary—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
CALCRIM 1701 [Burglary: Degrees]
CALCRIM 1702 [Burglary: Intent Of Aider And Abettor]
Research Notes:
See CLARAWEB Forum, Burglary And Receiving Stolen Property—Series 1700.
F 1700 Note 2 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 (1962) 206 CA2d 184, 191; see also People v. Ortega (1992) 11 CA4th 691, 696.)
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.]
CALJIC NOTE: See FORECITE F 14.50 n2.
F 1700 Note 3 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].) [See Opinion Bank # O-110 for the Peters opinion.]
[Research Note: See FORECITE BIBLIO 14.50.]
CALJIC NOTE: See FORECITE F 14.50 n3.
F 1700 Note 4 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. Sparks (2002) 28 CA4th 71, 87, fn 21; 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]; People v. Elsey (2000) 81 CA4th 948, 959; People v. Thomas (1991) 235 CA3d 899, 906, fn 2; see also People v. Church (1989) 215 CA3d 1151, 1158.)
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.
CALJIC NOTE: See FORECITE F 14.50 n4.
F 1700 Note 5 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 (1990) 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.]
CALJIC NOTE: See FORECITE F 14.50 n5.
F 1700 Note 6 Separate Enumeration Of “Locked” Requirement
PC 459 defines burglary of an automobile as entry of a “vehicle … when the doors are locked…” Therefore the locking element should be separately enumerated.
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 (1980) 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 (1952) 114 CA2d 566 [broken window insufficient to prove the car was locked] with People v. Rivera (2003) 109 CA4th 1241 [broken window sufficient].
CALJIC NOTE: See FORECITE F 14.50 n18.
F 1700 Note 7 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 (1993) 16 CA4th 1255, 1258-60.)
[Research Note: See FORECITE BIBLIO 14.50.]
CALJIC NOTE: See FORECITE F 14.50 n6.
F 1700 Note 8 “Open Pole Barn” Without Walls Not A Building (PC 459)
In re Amber S. (1995) 33 CA4th 185, 186-87, 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.
CALJIC NOTE: See FORECITE F 14.50 n9.
F 1700 Note 9 Burglary: Minor Not Liable As Aider And Abettor 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 abettor 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. (1996) 42 CA4th 17.)
CALJIC NOTE: See FORECITE F 14.50 n10.
F 1700 Note 10 Burglary: Due Process Challenge When Specific Felony Is Not Charged
People v. Holt (1997) 15 C4th 619, 671-72, 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.)
CALJIC NOTE: See FORECITE F 14.50 n12.
F 1700 Note 11 Burglary: Contingent Intent Is Sufficient
(See People v. Fond (1999) 71 CA4th 127 [intent sufficient for burglary where defendant intended that sex be consensual or forcible if necessary].)
CALJIC NOTE: See FORECITE F 14.50 n14.
F 1700 Note 12 Burglary: Whether Removal Of Window Screen Is Burglary
See FORECITE F 1700.5 Inst 5.
CALJIC NOTE: See FORECITE F 14.50 n19.
F 1700 Note 13 Burglary: Intent To Facilitate Commission Of A Crime Somewhere Else Is Sufficient
(See People v. Griffin (2001) 90 CA4th 741, 748-49 [defendant may be found guilty of burglary if entry was made to facilitate subsequent crime not sharing attributes of proximity in time and place].)
CALJIC NOTE: See FORECITE F 14.50 n20.
F 1700 Note 14 Burglary: Entry Of Interior Room Is Burglary (PC 459 & PC 460)
People v. Sparks (2002) 28 C4th 71, 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.
CALJIC NOTE: See FORECITE F 14.50 n21.
F 1700 Note 15 Burglary: 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 (1945) 68 CA2d 674, 678; People v. Leyvas (1946) 73 CA2d 863, 866 [ration stamps]; People v. Franco (1970) 4 CA3d 535, 542 [cigarette carton item of some value, even if empty]; People v. Martinez (2002) 95 CA4th 581 [intent to take shower and use soap and shampoo constituted intent to commit larceny].)
CALJIC NOTE: See FORECITE F 14.50 n22.
F 1700 Note 16 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.
CALJIC NOTE: See FORECITE F 14.59 n1.
F 1700 Note 17 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 (1992) 7 CA4th 1430, 1434-38.)
CALJIC NOTE: See FORECITE F 14.59 n2.
F 1700 Note 18 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 (1966) 64 C2d 560, 567-69.) 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 (1948) 333 US 257, 273 [92 LEd 682; 68 SCt 499]; Cooke v. U.S. (1925) 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 (1955) 45 C2d 171, 174-75.) 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 (1990) 222 CA3d 517; but see People v. Jones (1990) 51 C3d 294, 317 [preliminary hearing is sufficient to provide the defendant practical notice].) [See Brief Bank # B-568 and Opinion Bank # O-151 foradditional briefing on this issue and a copy of the O’Keefe opinion.]
CALJIC NOTE: See FORECITE F 14.59 n3.
F 1700 Note 19 Burglary: Intended Offense May be Theft-Related
People v. Nguyen (1995) 40 CA4th 28, 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.
CALJIC NOTE: See FORECITE F 14.59 n4.
F 1700 Note 20 Burglary: Intent Formed After Entry Of Structure But Before Entry Of Inner Room (PC 459 & PC 460)
(See FORECITE F 14.50 n21.)
CALJIC NOTE: See FORECITE F 14.59 n5.
F 1700 Note 21 Defendant May Be Convicted Of Burglary And Receiving Or Concealing Stolen Property
In People v. Allen (1999) 21 C4th 846, 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.)
CALJIC NOTE: See FORECITE F 14.50 n16.
F 1700 Note 22 Argument Rejected That Auto Burglary Is Inapplicable When The Only Intent Is To Steal The Car (PC 459)
In People v. Teamer (1993) 20 CA4th 1454, 1458-61, 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.]
CALJIC NOTE: See FORECITE F 14.50 n8.
