SERIES 1700 BURGLARY AND RECEIVING STOLEN PROPERTY
F 1700.1 Titles And Identification Of Parties
F 1700.2 Burglary—Tailoring To Facts: Persons, Places, Things And Theories
F 1700.3 Burglary—Language That Is Argumentative, Confusing, Etc.
F 1700.4 Burglary—Burden Of Proof Issues
TABLE OF CONTENTS
F 1700.1 Titles And Identification Of Parties
F 1700.1 Inst 1 Burglary—Title
F 1700.1 Inst 2 Identification Of Prosecution And Defendant
F 1700.2 Burglary—Tailoring To Facts: Persons, Places, Things And Theories
F 1700.2 Inst 1 (a-c) Burglary: Tailoring To Facts: Specific Place Or Thing
F 1700.3 Burglary—Language That Is Argumentative, Confusing, Etc.
F 1700.3 Inst 1 Deletion Of Duplicative Language
F 1700.3 Inst 2 Delete Argumentative Language
F 1700.4 Burglary—Burden Of Proof Issues
F 1700.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 1700.4 Inst 2 (a-c) Burglary: Required Intent May Not Be Inferred From Entry Itself
F 1700.4 Inst 3 Vehicular Burglary: Removing Exterior Parts Doesn’t Constitute Entry Into Vehicle
Return to Series 1700 Table of Contents.
F 1700.1 Titles And Identification Of Parties
F 1700.1 Inst 1 Burglary—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 1700.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 1700.2Burglary—Tailoring To Facts: Persons, Places, Things And Theories
F 1700.2 Inst 1 (a-c) Burglary: Tailoring To Facts: Specific Place Or Thing
Alternative a:
*Modify Element 1 [Building], as follows [added language is underlined; deleted language is stricken]:
1. The defendant entered (a/an) (building/room within a building/locked vehicle/ ____________ <insert other statutory target>) _______________ <specify or describe e.g., the house at 123 Anywhere Street, Santa Rosa, California>;
[2. The structure entered had four walls and a roof (if at issue).]
Alternative b:
*Modify Element 1 [Room Within A Building], as follows [added language is underlined; deleted language is stricken]:
1. The defendant entered (a/an) (building/room within a building/locked vehicle/ ____________ <insert other statutory target>) _______________ <specify or describe e.g., a room within the house at 123 Anywhere Street, Santa Rosa, California>;
[2. The area entered within the (house/building/structure) had a designated boundary separating it from the reset of the (house/building/structure) (if at issue).]
Alternative c:
*Modify Element 1 [Locked Vehicle]:
1. The defendant entered (a/an) (building/room within a building/locked vehicle/ ____________ <insert other statutory target>) _______________ <specify or describe vehicle and portion entered e.g., passenger compartment, trunk, etc.>;
[2. When the defendant entered the _______________ <specify or describe vehicle and portion entered e.g., passenger compartment, trunk, etc.> [all the doors were] [it was] locked.]
Points and Authorities
Tailoring To Facts And Prosecution Theory—See FORECITE F 400.2 Inst 1.
Separate Enumeration Of Entry And Locking Elements—See generally FORECITE F 3500.2 Inst 1.
F 1700.3 Burglary—Language That Is Argumentative, Confusing, Etc.
F 1700.3 Inst 1 Deletion Of Duplicative Language
*Modify CC 1700, paragraph 4, sentence 1, as follows [deleted language is stricken]:
A burglary was committed if the defendant entered with the intent to commit (theft/ [or] _______________ <insert one or more felonies>). The defendant does not need to have actually committed (theft/ [or] _______________ <insert one or more felonies>) as long as (he/she) entered with the intent to do so. [The People do not have to prove that the defendant actually committed (theft/[or] _______________ <insert one or more felonies>).]
Points and Authorities
This language is duplicative of the elements and, therefore, is not necessary. Moreover, it is less precise than the element language because it fails to specify what must be “entered.” (See FORECITE F 416.3 Inst 4.)
F 1700.3 Inst 2 Delete Argumentative Language
*Modify CC 1700 as follows:
[Delete paragraph 4.]
Points and Authorities
See FORECITE F 416.3 Inst 4.
STRATEGY NOTE—Alternatively, CALCRIM 1700, paragraph 4, should be balanced. (See FORECITE F 1700.6 Inst 1.)
F 1700.4 Burglary—Burden Of Proof Issues
F 1700.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 1700.4 Inst 2 (a-c) Burglary: Required Intent May Not Be Inferred From Entry Itself
*Add to CC 1700:
Alternative a [CALCRIM 375, 852, 853 Format]:
If you conclude that the defendant entered _______________ <specify building allegedly entered>, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of burglary. The prosecution must still prove each element of every charge beyond a reasonable doubt, including that the defendant had the required intent at the time of the [alleged] entry.
Alternative b [CC 420 Format]:
[An entry is not sufficient alone to prove a burglary.]
Alternative c:
You may not infer the intent required for burglary based solely on the entry itself.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Propriety Of Instruction On Matters Which Alone Are Not Sufficient To Convict—See FORECITE F 370 Inst 8.
Entry Alone Is Insufficient—See In re Leanna W. (2004) 120 CA4th 735, 742 [“intent to use the home’s utilities [must be] proven with evidence other than the entry itself”].
Limitation Of Conviction Based On Speculative Inference Alone Required By Federal Constitution—See FORECITE F 370 Inst 8.
No Reference To “The People”—The defendant objects to use of the term “the People” in this instruction and throughout this trial. [See FORECITE F 100.2 Note 1; CALCRIM Motion Bank # CCM-006.]
Use Of The Term “Defendant”— The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 2.3 [Prosecution’s Burden of Proof: Irrational Permissive Inference]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 14.52d.
F 1700.4 Inst 3 Vehicular Burglary: Removing Exterior Parts Doesn’t Constitute Entry Into Vehicle
*Add to CC 1700 as follows [CC 3400 Format]:
The prosecution must prove that the defendant committed __________ <insert crime[s] charged>. The defendant contends (he/she) did not commit (this/these) crime(s) and that (he/she) only tampered with the vehicle. The prosecution must prove that the defendant committed the crime[s] with which (he/she) is charged. The defendant does not need to prove (he/she) did not burglarize the vehicle. If you have a reasonable doubt about whether the defendant committed the burglary, you must find (him/her) not guilty.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Propriety Of Instruction On Matters Not Alone Sufficient To Convict—See FORECITE F 370 Inst 8.
Theft Of Exterior Part Not Sufficient—In re Young (1996) 49 CA4th 861, 864, 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.
No Reference To “The People”—The defendant objects to use of the term “the People” in this instruction and throughout this trial. [See FORECITE F 100.2 Note 1; CALCRIM Motion Bank # CCM-006.]
Use Of The Term “Defendant”— The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005]. By using the term “defendant” in this instructional request, the defense does not withdraw the request.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 14.50 n11.
