SERIES 1700 BURGLARY AND RECEIVING STOLEN PROPERTY
F 1700.5 Burglary—Elements And Definitions
TABLE OF CONTENTS
F 1700.5 Inst 1 Burglary: Definition Of “Lock”
F 1700.5 Inst 2 Include Definition Of “Enter” In Element
F 1700.5 Inst 3 Include Elements Of Predicate Crime
F 1700.5 Inst 4 Incorporation OF Predicate Crime Elements; Separate Enumeration Of Compound Elements
F 1700.5 Inst 5 Burglary: Definition Of “Structural Boundary” (PC 454)
F 1700.5 Inst 6 Determination Of Whether Entry Violated Possessory Interest In Building
Return to Series 1700 Table of Contents.
F 1700.5 Inst 1 Burglary: Definition Of “Lock”
*Add to CC 1700 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
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
“Lock” Defined—In re Lamont R. (1988) 200 CA3d 244, 247; People v. Massie (1966) 241 CA2d 812, 817.
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 14.50g.
F 1700.5 Inst 2 Include Definition Of “Enter” In Element
*Modify CC 1700, Element 1, when appropriate as follows [added language is underlined; deleted language is stricken]:
1. The defendant entered (a/an) [Some part of the defendant’s body] [or] [An object under the defendant’s control] penetrated the area inside the outer boundary of _______________ <specify or describe structure allegedly entered> (building/room within a building/locked vehicle/ ____________ <insert other statutory target>);
Points and Authorities
See FORECITE F 417.5 Inst 2.
F 1700.5 Inst 3 Include Elements Of Predicate Crime
*Add to CC 1700, Element 2, as follows:
To prove the defendant intended to commit _______________ <insert crime(s)>, the prosecution must prove all of the following beyond a reasonable doubt:
[Insert elements of predicate offense.]
[Delete paragraph 3.]
Points and Authorities
See FORECITE F 402.5 Inst 6.
F 1700.5 Inst 4Incorporation OF Predicate Crime Elements; Separate Enumeration Of Compound Elements
*Modify CC 1700, Elements, 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>);
AND
2. When (he/she) entered (a/an) (building/room within thebuilding/locked vehicle/ ____________<insert other statutory target>), (he/she) intended The defendant did so with and intent to commit (theft/ [or] ____________<insert one or more felonies>).
AND
3. At the time of the entry, the defendant intended to commit one of those crimes at the time of the entry.
*Modify paragraph 3, as follows:
To decide whether the defendant To prove the defendant intended to commit (theft/ [or] ____________<insert one or more felonies>), please refer to the separate instructions that I (will give/have given) you on (that/those) crime[s] the prosecution must prove beyond a reasonable doubt that:
[Insert Elements of crime(s).]
Points and Authorities
Incorporation Of Predicate Elements—See FORECITE F 402.5 Inst 6.
Separate Enumeration—See FORECITE F 3500.2 Inst 1.
F 1700.5 Inst 5 Burglary: Definition Of “Structural Boundary” (PC 454)
*Add to CC 1700 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
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Structural Boundaries—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 (1994) 25 CA4th 339, 346.) 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 (1997) 58 CA4th 1041 [no error in instructing jurors that attached garage is part of inhabited structure].)
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.
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.) (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.
CALJIC NOTE: See FORECITE F 14.50d.
F 1700.5 Inst 6 Determination Of Whether Entry Violated Possessory Interest In Building
*Add to CC 1700 when appropriate:
*Alternative to Element 1:
An object under the defendant’s control penetrated the area inside the building’s outer boundary and such penetration was a prelude to physical entry by the defendant, or for the purpose of reaching into the building to remove property.
If you decide that the object was not used for either of the above purposes, or if you have a reasonable doubt whether the object was used for such purposes, you must find the defendant not guilty.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Burglary Requires Violation Of The Owner’s Possessory Interests—People v. Davis (1998) 18 C4th 712, 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 (1988) 198 CA3d 639.)
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 14.50e.
