SERIES 1700 BURGLARY AND RECEIVING STOLEN PROPERTY
F 1700.6 Burglary—Defense Theories
F 1700.8 Burglary—Unanimity/Duplicity/Multiplicity
TABLE OF CONTENTS
F 1700.6 Burglary—Defense Theories
F 1700.6 Inst 1 (a & b) Jurors Should Consider Fact That Predicate Crime Wasn’t Actually Committed
F 1700.6 Inst 2 (a & b) Burglary: Defense Of Consent (PC 454)
F 1700.6 Inst 3 Burglary Based On Theft Requires Intent To Permanently Deprive
F 1700.7 Burglary—Preliminary Fact Issues [Reserved]
F 1700.8 Burglary—Unanimity/Duplicity/Multiplicity
F 1700.8 Inst 1 Unanimity: All Jurors Must “Find” The Required Elements
Return to Series 1700 Table of Contents.
F 1700.6 Burglary—Defense Theories
F 1700.6 Inst 1 (a & b) Jurors Should Consider Fact That Predicate Crime Wasn’t Actually Committed
*If CC 1700, paragraph 4, is not deleted, add to paragraph 4:
Alternative a:
However, whether or not the defendant actually committed the allegedly intended crime is a factor for you to consider in deciding whether the prosecution has proven that the defendant intended to commit such crime at the time of entry.
Alternative b:
However, in determining whether or not the entry was accompanied by the necessary intent, consider whether or not the intent asserted by the prosecution was carried out by the defendant once [he] [she] made entry.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Deletion Of Argumentative Language—See FORECITE F 416.3 Inst 4.
Modification To Balance Argumentative Instruction: Alternatively, the argumentative language should be balanced to avoid giving undue emphasis to an interpretation of the evidence which favors the prosecution. (See Wardius v. Oregon (1973) 412 US 470 [37 LEd2d 82; 93 SCt 2208]; see also FORECITE CG 6.5 [Instructions Must Be Balanced Between Defense and Prosecution].)
For example, 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 (1967) 257 CA2d 420, 425 [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 (1973) 29 CA3d 894, 897; People v. Holley (1961) 194 CA2d 538, 540-41.) 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.
CALCRIM 1700, 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.
[See also FORECITE F 416.3 Inst 7.]
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 4.1 [Right To Instruct The Jurors On Defense Theories
FORECITE CG 6.5 [Instructions Must Be Balanced Between Defense And Prosecution]
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 14.50a.
F 1700.6 Inst 2 (a & b) Burglary: Defense Of Consent (PC 454)
*Add to CC 1700 when appropriate:
Alternative a [CC 3400 adaption]:
The prosecution must prove all the elements of burglary including that the defendant did not have a right to enter the [building] [property]. The defendant contends (he/she) had a right to enter the [premises] [___________ <other>] because (he/she) [had a possessory right to enter] [the [owner] [lawful occupant] of the [building] [property] [___________ <other>] consented to the defendant’s entry with knowledge of the defendant’s felonious purpose]. However the defendant does not need to prove [(he/she) had such a possessory right] [that the [owner] [occupant] consented]. If you have a reasonable doubt about whether the prosecution has proven that the defendant [unlawfully entered] [entered without consent], you must find (him/her) not guilty.
Alternative b:
A burglary is not committed when:
A. The defendant had an unconditional possessory right to enter the premises, or
B. 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:
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Right To Instruction On Defense Theory—See FORECITE F 315.1.2 Inst 2.
Consent As Defense Theory—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 (1975) 15 C3d 709, 714; see also People v. Felix (1994) 23 CA4th 1385, 1397; but see People v. Clayton (1998) 65 CA4th 418, 422-23 [defendant given key by husband for purpose of killing wife constitutes burglary]; see also CALCRIM 1700, Related Issues.)
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 (1998) 18 C4th 894, 954 concluded that the proper test is whether the defendant had “an unconditional possessory right to enter.” (See also People v. Salemme (1992) 2 CA4th 775, 779-81.)
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.)
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 14.50b.
F 1700.6 Inst 3 Burglary Based On Theft Requires Intent To Permanently Deprive
*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) had no intent to permanently deprive the owner of the property. 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) had no intent to permanently deprive the owner of the property. If you have a reasonable doubt about whether the defendant intended to permanently deprive the owner of the property, 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.]
Right To Defense Theory Instruction—See FORECITE F 315.1.2 Inst 2.
Temporary Removal Of Property Insufficient—Temporary removal of property from the premises cannot provide the basis for the crime of theft or burglary based on theft. (People v. Kwok (1998) 63 CA4th 1236, 1248.) This is so because theft requires an intent to permanently deprive the owner of his or her property. (Ibid; see also People v. Dingle (1985) 174 CA3d 21, 29-30.)
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 n13.
F 1700.7 Burglary—Preliminary Fact Issues [Reserved]
F 1700.8 Burglary—Unanimity/Duplicity/Multiplicity
F 1700.8 Inst 1 Unanimity: All Jurors Must “Find” The Required Elements
Re: CALCRIM 1700, paragraph 7, see FORECITE F 415.8 Inst 1.
F 1700.9 Burglary—Lesser Offense Issues [Reserved]