The Related Issues to CC 1700 state that “consent by the owner or occupant of property may constitute a defense to burglary.” However, no instruction is provided for this purpose. The Court of Appeal in People v. Sherow (2011) 196 Cal. App. 4th 1296, disapproved a consent instruction put together by a trial judge because the judge incorrectly stated that the defendant had the burden of proving consent by a preponderance of the evidence. Sherow held that the burden was on the defendant to only raise a reasonable doubt regarding consent, but did not otherwise disapprove of the judge’s instruction. (Id. at 1309.) The judge’s instruction given in Sherow, modified to correctly allocate the burden of proof, may be used to instruct on consent in this context:
The defendant is not guilty of burglary if the occupant of the building consented to the defendant’s entry into the building.
In order to establish this defense, the defendant must raise a reasonable doubt regarding all of the following:
1. Prior to the defendant’s entry into the building, the occupant expressly gave to the defendant the occupant’s permission for the defendant to enter the building:
2. At the time that the occupant gave his or her permission, the occupant knew that the defendant intended to enter the building for the purpose either of committing a theft or selling stolen property; and
3. Prior to the defendant’s entry into the building, the defendant knew that the occupant was aware of the defendant’s illegal intention. (Id. at 1303.)