Burglary
Category > Burglary
Updated 3/7/2024Instruction on possession of burglary tools failed to include the felony intent element and so the conviction was reversed.Evidence supported defendant’s conviction for possession of burglary tools under Penal Code section 466. Despite a drafting error in the statute, section 466 should be interpreted to prohibit a person from having burglary tools “upon him or her or in his or her possession.” Nevertheless, the conviction for possession of burglary tools was reversed because the special instruction on that defense prejudicially omitted the element of felonious intent. id: 26413
Updated 2/4/2024The burglary of an uninhabited outbuilding such as a detached garage is not residential burglary. There was insufficient evidence to support a charge of first degree burglary where the defendant entered a detached, uninhabited garage that was located in front of the house.id: 27362
Updated 2/3/2024The trial court prejudicially erred by modifying the theft instruction to include cases dealing with the consumption of utilities during a residential burglary.Defendant was convicted of residential burglary and attempted residential burglary. He entered a house believing the Archangel Michael had given it to him. While inside the house, he consumed food and used utilities. The trial court erred when it modified the theft instruction to cite cases dealing with the consumption of utilities. By modifying the instruction without reference to the mental state required for theft, the court lightened the prosecution’s burden. The error was prejudicial under the Chapman standard, which applies to the misinstruction on an element of the offense.id: 27704
Attempted burglary is not a violent felony under section 667.5, subd.(c)(21).Defendant is charged with attempted first degree burglary, and it was alleged under Penal Code section 667.5, subd. (c)(21) that a person not an accomplice was present in the residence during the commission of the attempted burglary. However, the allegation had to be stricken where neither perpetrator gained entry into the residence. id: 25930
A foil-lined bag is not a burglary tool within the meaning of section 466. Defendant used a foil-lined bag to shoplift several pairs of jeans from a department store. The evidence was insufficient to support his conviction for possession of burglary tools under Penal Code section 466 because a foil-lined bag is not a tool within the meaning of that provision. id: 25449
Defendant was improperly convicted of two burglaries, rather than one, where he entered a store and then a room within the store with the intent to commit a felony.Defendant was convicted of two counts of burglary where he entered a store intending to commit robbery and then entered the store’s bathroom intending to commit rape. However, the fact that defendant committed two entries with felonious intent into a structure and a room within that structure does not permit two convictions. In this situation, multiple burglaries are valid only if the subsequently entered room provides a separate and objectively reasonable expectation of protection from intrusion relative to the larger structure. id: 24562
Evidence did not support first degree burglary where the house had been vacated, and the owner suggested he might move back in at some undetermined future time.Defendant was convicted of first degree burglary but the evidence was insufficient to show that the burglarized dwelling was inhabited. The owner suggested after the renter had left that he might reoccupy the residence in the future but there was no evidence that he intended to move back in or that the house would be used in the near future.id: 23361
Using a remote control to open a garage door does not constitute an entry into the residence for burglary purposes. A person standing in the driveway of a residence who uses a remote control to open a motorized garage door has not entered the building for purposes of the burglary statute. On these facts the defendant may be charged with attempted burglary, but not a completed burglary. id: 22733
Under Penal Code section 464 (burglary using a torch), a defendant must first be inside a building before using a torch to open a vault, safe, or other secure place. Defendant could not be guilty of violating Penal Code section 464 when he used an acetylene torch to cut a hole in the exterior door of Best Buy to gain access to the store because the statute requires that the defendant first be inside the building and then use the device to open, or attempt to open “any vault, safe, or other secure place.” id: 22605
Defendant was improperly convicted of conspiracy to commit burglary based on the coconspirator’s entry into a fenced wrecking yard to steal gas from a junk car. To be convicted of conspiracy to commit a burglary, a defendant or his coconspirator must take an overt step in furtherance of an agreement. In explaining burglary for that charge, the court instructed that entry into the wrecking yard with intent to commit theft would be a burglary. However, burglary requires entry into a building, and not a fenced year as the court instructed. The conviction for conspiracy to commit burglary was reversed.id: 22709
Latex gloves and a large bag were not burglary tools within the meaning of section 466.The evidence was insufficient to support defendant’s conviction for possession of burglary tools under Penal Code section 466. The latex gloves and large purse could not be considered burglary tools absent evidence showing they were possessed to break into or gain access to a victim’s property, and they do not resemble items the Legislature has specified are burglary tools in section 466.id: 22765
An unenclosed balcony is not part of a building for purposes of the burglary statute.Defendant was convicted of first degree burglary for having entered a second-floor balcony of an apartment with an intent to commit a theft. However, the trial court erroneously instructed the jury that an unenclosed balcony is part of a building for purposes of the burglary statute.id: 22111
A person standing in a driveway who uses a remote control to open a garage door but then flees before going inside has not committed a burglary.A person who uses a remote control to open the garage door from a distance away from the house has not “entered” the house for purposes of burglary. However, the conduct amounts to attempted burglary.id: 22227
First degree burglary and assault with intent to commit rape are lesser included offenses of assault with intent to commit rape during a burglary.Defendant’s convictions for first degree burglary and assault with intent to commit rape were dismissed because, under the statutory elements test, they were lesser included offenses of assault with intent to commit rape during the commission of first degree burglary.id: 22561
The trial court erred by instructing that defendant had the burden to prove a consent defense to burglary, by a preponderance of the evidence. The defendant’s burden of proof on the consent defense to burglary is to raise a reasonable doubt as to the facts underlying the defense. The trial court erred by instructing that defendant had the burden to prove consent to the burglary by a preponderance of the evidence. The error was prejudicial in light of the evidence that defendant was invited into the pawn shop by the owner who knew defendant intended to sell stolen property.id: 22173
Burglary finding could not be sustained on the theory the minor entered the residence with the intent to aid and abet her own statutory rape.The juvenile court found the minor had committed a burglary by entering a residence with the intent of aiding and abetting her own statutory rape. However, the minor was the intended and protected victim of the predicate felony used to support the burglary finding. As such, she could not harbor the culpable state of mind necessary to commit the burglary, because under any theory she could not commit the crime of her own statutory rape.id: 9608
Removal of inhabited dwelling house element from residential burglary instruction was not reversible per se.When instructing on residential burglary, the trial court erred in omitting the element that the structure entered must be an inhabited dwelling house. Contrary to defendant's claim, removal of an element from the jury's consideration was not reversible per se. The error was harmless where the record shows the structure entered was an inhabited dwelling house.id: 10369
Defendant did not commit first degree burglary where the occupant of the house was dead at the time of the entry.The victim died in his home from natural causes. While he lied dead on the floor defendant entered his house and walked out with a VCR. The evidence was insufficient to support the first degree murder conviction because the victim was dead when defendant entered the house and was therefore not temporarily absent from his house. His first degree burglary conviction was reduced to second degree.id: 10349
Court erred in failing to instruct on trespass and/or vandalism as lesser related offenses to the charged residential burglary.The trial court erred in failing to instruct the jury as to vandalism (Penal Code section 594) and trespass into a noncommercial dwelling house (section 602.5) as lesser related offenses to the charged residential burglary. The offenses are closely related. However, the error was harmless. In order to have returned convictions on charges of trespass and/or vandalism but acquittals on the charged burglary the jury would have had to conclude there was no robbery (which served as the felonious intent element of the charged burglary) or that defendants had no intent to rob when they entered the residence. Given the guilty verdict on the charged robbery the jury clearly rejected the first scenario and the evidence did not support the second.id: 10342
An open pole barn without walls is not a building within the scope of California's burglary statute.A minor was found to have committed a burglary where she was caught stealing 30 bales of hay from a structure described by the owner as an open pole barn. The structure was open on all sides, consisting of a roof and an overhang held up by poles. However, an open pole barn without walls is not a building within the scope of California's burglary statute.id: 10336
Montoya case regarding aiding and abetting liability for a burglary could not be applied retroactively, and failure to instruct on pre-Montoya law violated ex post facto provisions.The instant burglary was committed in April of 1992. At the time a person could not be liable for a burglary as an aider and abettor unless he or she formed the intent to aid and abet before or during entry by the actual perpetrator. In June 1994, the Supreme Court filed <i>People v. Montoya</i> (1994) 7 Cal.4th 1027, which held that for purposes of determining liability for aiding and abetting, a burglary is ongoing while the direct perpetrator remains in the burglarized premises. The trial court erred in failing to give the pre-<i>Montoya</i> instruction because that case cannot be applied retroactively. It did not matter that defendant knew his conduct was unlawful under different penal statutes. Moreover, defendant had no reasonable notice of the <i>Montoya</i> holding. The error required reversal where the prosecution presented two themes - defendant as the direct perpetrator, and aider and abettor, and it was unclear on which theory the jury relied.id: 9550
Resident's presence in the hallway outside of an apartment during a burglary was insufficient to support the "occupied burglary" allegation which made the offense a violent felony. Burglary of an inhabited dwelling house is a violent felony when it is charged and proved that a person other than the defendant or an accomplice "was present in the residence during the commission of the burglary." (Penal Code section 667.5, (c)(21).) A resident's presence in the hallway of an apartment unit during the burglary is not sufficient to satisfy the requirement of section 667.5, subd. (c)(21).id: 19892
Court erred in failing to instruct on elements of rape as a target offense of burglary but the error was harmless where the court instructed on other felonies and the evidence of intent to commit a felony was strong.The jury was instructed it could find defendant guilty of burglary if it found he entered the victim's apartment with the specific intent to commit theft and sodomy, but not on rape since that offense was never charged. The court erred by failing to instruct on rape but the error was harmless since defendant was convicted of burglary, not rape, and there was strong evidence that defendant intended to commit a felony.id: 16661
A person who gains access to a vehicle's trunk by opening an unlocked passenger door and lifting the trunk release latch has not committed auto burglary.Defendant entered the victim's car through unlocked doors, pulled the trunk release latch opening the trunk lid, and reached into the trunk. As a matter of law his actions did not constitute auto burglary under Penal code section 459 since that provision requires the entry of a vehicle when the doors and trunk are locked.id: 14869
Defendant did not enter check-cashing business for burglary purposes where he placed a stolen and forged check in the chute in a walk-up window.Defendant presented a stolen and forged check to the teller at a check-cashing business by placing the check in a chute in a walk-up window. Because defendant did not enter the check-cashing facility his burglary conviction was reversed.id: 15469
Headlight theft was not a vehicular burglary under section 459.Defendant was convicted of vehicular burglary within the meaning of Penal Code section 459. However, the conviction was reversed because entry into the headlamp housings of an automobile to steal its headlamps is not an entry into a vehicle within the meaning of section 459.id: 10362
Burglary does not include entry into a room in a house from another room in the house.The trial court erred by instructing that residential burglary can be committed by the formation of the intent to rape after entry in to an inhabited dwelling house but before entry of another room within the same house in which the rape occurred. The only way a burglary can be committed from the entry of another room within the same house is where, by the nature of the room entered there is an expectation of protection from intrusion from the other rooms that is comparable to the expectation of protection from intrusion into the house from outside the home.id: 9889
Court erred in finding probation ineligibility for a conviction of attempted burglary.Penal Code section 462, which mandates a denial of probation for a conviction of burglary does not apply to appellant's crime of attempted burglary. Moreover, the judge's finding of planning and professionalism was unsupported and constituted an insufficient reason to deny him probation.id: 10343
Aider and abettor to burglary must know of perpetrator's intent to commit burglary at the time the perpetrator enters the premises.The trial court committed reversible error in failing to instruct the jury, sua sponte, that defendant could not be found guilty of aiding and abetting a burglary unless he knew of the perpetrator's intent to commit burglary prior to or at the time the perpetrator entered the burgled premises.id: 9597
Updated 2/23/2024The trial court properly redesignated the underlying burglary as first degree after vacating the murder conviction under SB 1437. Defendant was convicted of first degree murder with a felony-murder special circumstance. In 2018, the court vacated his murder conviction under SB 1437, and the parties agreed the underlying felony was a burglary but they disagreed on the degree of the offense. The trial court did not err by designating the offense as first degree burglary given the evidence that it was a residential burglary. Penal Code section 1157 did not require that it be fixed at second degree and there was no Apprendi violation since the redesignation didn’t increase defendant’s sentence. Finally, the court properly designated the offense as a violent felony and imposing the arming enhancement even thought not pled and proven as such.id: 26885
Updated 2/4/2024Consecutive sentences were proper where defendant burglarized five buildings on a single property.Defendant was convicted of five counts of burglary for entering five different buildings on the same property one night. She argued consecutive sentences were improper because the burglaries were part of a singular course of conduct. However, defendant’s intent for each act of theft was distinct, and consecutive sentences were proper.id: 27295
Updated 2/4/2024The guest parking garage was part of the inhabited dwelling for purposes of residential burglary.Defendant argued the evidence did not support his residential burglary conviction because the car he burglarized was parked in the guest parking garage of the condo complex. However, the guest garage was connected to the condos for purposes of residential burglary.id: 27355
Updated 2/3/2024Despite defendant’s delusions, the evidence supported an intent to steal at the time he entered the home.Defendant argued the evidence was insufficient to support the residential burglary conviction, claiming the evidence of his delusions showed he had no intent to steal at the time of the entry. However, the manner in which he unplugged the security system touch screen showed he was aware he was committing an unauthorized entry, and though the subsequent takings of food and use of utilities, although minor, supported an inference that he intended to commit theft at the time of the entry.id: 27705
Possession of burglary tool statute did not apply to a defendant who possessed pliers to remove the anti-security tag from a pair of jeans at Sears. Penal Code section 466 prohibits the possession of certain instruments or tools with the intent to break into a building or vehicle. The minor was found to have violated the offense where he was found in a Sears store with pliers he was using to steal a pair of jeans. However, the statute requires that the tools be intended for use in breaking into the structure. It did not apply here where the minor possessed the pliers with the intent to remove the anti-security tag from the jeans.id: 26124
Evidence supported the burglary conviction for a defendant who entered a hotel room he rented intending to have sex with a minor.Defendant was convicted of various sex offenses and burglary under Penal Code section 459 after he had sex with a 16 year-old girl in a hotel room he rented. The theory of burglary was that he entered a structure intending to commit a felony. He argued there could be no burglary because he had an unconditional possessory interest in the hotel room during the rental period. However, while he had consent to enter and use the room, the hotel also maintained access to the room, and the evidence supported the burglary conviction.id: 25821
The occupied burglary enhancement applies if there is a person other than an accomplice present at any time before the perpetrator’s final departure from the residence.First degree burglary where a nonaccomplice is present is a violent felony within the meaning of Penal Code section 667.5, subd.c. Defendants argued there was insufficient evidence to support the occupied burglary enhancement because the nonaccomplice was not in the residence at the time the defendants entered it, and the burglary was complete upon entry. However, the nonaccomplice was in the residence before the defendants finished the burglary and the evidence therefore supported the enhancement.id: 25046
The burglary special circumstance is irrelevant to the determination under the statutory elements test of whether the burglary charge was a lesser included offense of the murder charge.Defendant argued that under the elements test, burglary is a lesser included offense of murder committed during a burglary because the offense of murder with a burglary special circumstance can’t be committed without also committing the crime of burglary. However, special circumstances like enhancements, are irrelevant to the lesser included offense analysis.id: 24929
The pliers the minor used to remove the anti-theft device on a pair of jeans constituted a burglary tool withing the meaning of section 466.There was sufficient evidence to support the juvenile court’s finding that the minor possessed burglary tools within the meaning of Penal Code section 466. He was found to be in possession of pliers. He entered a store and used the pliers to remove the anti-theft device from the jeans he attempted to steal. The pliers constituted an “other tool or instrument” within the meaning of section 466.id: 24884
The underground apartment garage was a residence for purposes of the provision that makes burglary a violent felony if committed while a person was present.Defendant argued the evidence didn’t support the finding that there was a “person present” during the burglary for purposes of Penal Code section 667.5, subd. (c). The evidence showed the apartment manager was in the garage when the vehicles were broken into. However, the secured garage was an integrated part of the apartment complex and shared the same roof. The burglary qualified as a violent felony due to the potential harm to the manager who was present during the burglary.id: 24836
An invited overnight guest can commit a burglary by entering a bedroom within the house and committing a sex offense.Defendant was convicted of certain sex offenses and receive a life sentence under the one strike law based on a finding that the offenses were committed during a burglary. He argued the burglary finding could not stand because he was an invited overnight guest in the home and bedroom where he forced himself on his young niece. Contrary to defendant’s claim, Penal Code section 459 applies to the entry of any home or a room within a home so long as the person enters with the intent to commit felony and with no authority to do so.id: 25427
The jury properly included sales tax in determining whether defendant entered the property with the intent to steal an item with a value greater than $950.Defendant argued substantial evidence did not support his burglary conviction because the evidence established the price of the stolen phone was less than $950, and the jury could not consider sales tax as part of the phone’s value. However, the jury properly included sales tax in determining whether defendant entered the property with the intent to steal an item with a value greater than $950.id: 25346
The burglary of an inhabited RV constitutes first degree burglary. Defendant was convicted of first degree burglary of an inhabited recreational vehicle. He argued that because RV’s are not specifically included in Penal Code section 460, subd.(c), his conviction cannot stand. However, the absence of the words “recreational vehicle” or “house car” from section 460 is not determinative and the phrase “inhabited dwelling house” includes an inhabited RV.id: 24791
The victim was present during the burglary where she saw defendant attempting to enter through the sliding glass door and then fled. A burglary is a violent felony for purposes of the gang enhancement if a victim was inside the residence during the commission of the crime. The victim was in her living room when defendant began yanking on the sliding glass door, and his hand penetrated the portal of the sliding screen door while she was still there. She then fled. Evidence supports the finding that the victim was present during the burglary.id: 24703
Evidence supported the attempted burglary convictions where defendants drove from southern LA to the San Fernando Valley, knocked on doors and peered over fences. Defendants argued there was insufficient evidence to support the attempted burglary convictions because their acts of driving through neighborhoods and knocking on doors showed only preparation to commit burglary, which falls short if an overt act necessary to establish an intent. However, the jurors could reasonably conclude that the defendants’ acts constituted direct movement towards the commission of burglary even thought they decided not to complete the burglaries of certain homes they targeted.id: 24654
Evidence supported attempted burglary convictions for a burglar who knocked on doors and left when someone answered.Evidence supported the two convictions for attempted burglary where defendant knocked on doors and left when someone answered the door. He committed other burglaries in incidents where he knocked and no one answered. While the jury might have found he didn’t form the intent to burglarize the homes until after he determined the homes were unoccupied, it may also have found he intended to commit the burglaries when he approached the houses and only abandoned the idea when someone answered the door.id: 24603
Evidence supported the burglary conviction where the victim confirmed hearing the storm door open after initially being unsure.Defendant was convicted of burglary for opening a metal storm door on a residence and attempted burglary for jiggling a window on the same residence a few seconds later. Evidence supported the burglary conviction where the victim testified he was not sure at first that he heard the storm door open, but then became sure when he later heard the window jiggling. The jury could reasonablely have inferred that if defendant opened the door, he intended to enter the house to commit a theft.id: 24461
Evidence showed an intent to defraud where defendant entered a Walmart seeking a full price refund for items he bought at a discount.Defendant was convicted of burglary of Walmart. He argued the evidence was insufficient to show that he intended to commit fraud when he entered with the intent to obtain a full price refund for items he purchased at a discount. He intended to injure Walmart’s pecuniary interest by taking more money than he paid for the items and this was fraud.id: 24339
Prying open the hood of a locked car was sufficient to establish a burglary under Penal Code section 459. Defendant’s act of prying open the hood of a locked car constituted an entry for burglary purposes. Moreover, his intent to commit a theft upon entry was established where the car, a Toyota Camry, was the same model as defendant owned, and he was seen measuring something in the engine suggesting an intent to extract a replacement part. id: 20898
The house being prepared for the new owner to move into was an inhabited dwelling for purposes of first degree burglary. A new owner of a house was preparing to move in. She installed locks, painted the garage, and came and went during daytime hours, just missing defendant’s two intrusions. The house was an inhabited dwelling for purposes of first degree burglary.id: 24260
For purposes of burglary, the minor did not consent to defendant’s entry of her parents home as he climbed through her bedroom window intending to have sex. Defendant met a 13 year-old girl on the internet and began a sexual relationship that involved sneaking into her mother’s house through the bedroom window. He was convicted of several offenses. He argued the trial court erred in denying his acquittal motion as to the burglary counts because the victim consented to his entry of the home knowing of his sexual intent. However, a defense of consent requires a showing that the minor had a possessory interest in the residence equal to that of her parents and that she invited defendant in, or the parent gave defendant permission to enter so that he could have sex with the minor, or that the minor had been given permission by her parent to the entry. None of those alternatives were met here.id: 24188
Defendant was properly convicted of a second burglary when, after entering the store intending to commit a robbery, he formed the intent to commit a sexual assault in the bathroom of the store. Defendant was properly convicted of burglary in count one for entering a store intending to commit a robbery. He was thereafter also properly convicted of a second robbery (count four) when he entered the bathroom of the store with a victim intending to commit a sexual assault.id: 23532
Defendant was properly found to have committed a burglary with a person present even though he entered an unoccupied guest area that did not provide access to the occupied main residence.Defendant was convicted of first degree burglary along with an allegation that a person other than an accomplice was present in the house (Penal Code section 667.5, subd.(c)(21) which renders the burglary a violent felony). The enhancement applied even though the unoccupied guest area defendant entered did not provide access to the occupied main residence.id: 23502
The open house did not transform the burglary victim’s home from an inhabited dwelling to a commercial building.Defendant argued the evidence was insufficient to support his conviction for residential burglary Because the victim’s house was for sale, was being shown during an open house, and was therefore not an “inhabited” dwelling. However, the open house did not transform the victim’s home from an inhabited dwelling to a commercial building.id: 23490
The judge’s slip of the tongue regarding a legally incorrect theory did not reflect his actual conclusion or reasoning regarding the commercial burglary conviction. Defendant argued the commercial burglary conviction was improper because the court (in a bench trial) may have relied on a legally incorrect theory of guilt. Because the trial court plainly determined defendant stole from the victim (and another) the record shows the judge found the defendant knew the jewelry was stolen when she walked into the pawn shop. The court’s reference to what she “should have known” was just a secondary slip of the tongue that did not reflect his actual conclusion or reasoning.id: 23491
Minor who acted as a lookout was properly found to have committed a burglary as an aider and abettor.The evidence was sufficient to support the minor’s burglary conviction on an aiding and abetting theory. The record showed that he acted as a lookout for the boy who entered the house, whistling to alert him as the victim approached. He was not merely present as he claimed. id: 23613
Evidence that the minor’s palm print was on the victim’s window was sufficient to support the burglary finding. There was no plausible explanation for why the minor’s fingerprints were on the victim’s window other than that he participated in a burglary. The evidence was sufficient to support the burglary conviction.id: 23395
Burglary conviction was supported by evidence where defendant entered the electronics store intending to steal as he placed expensive computer in a less expensive printer box.Defendant was convicted of burglary after he was found by an electronics store security guard to have placed an expensive laptop computer in a less expensive printer box. He argued the evidence didn’t support a burglary conviction based on intent to commit larceny, the theory on which the jury was instructed, and that if anything, the crime was theft by false pretenses. However, the evidence supported the conviction where the jury found he entered the store with the intent to commit theft.id: 23421
Evidence supported the burglary conviction based on theft by larceny where defendant put laptop computers in a cheaper printer box and paid the listed price for the printer.Defendant was convicted of burglary after he was found by an electronics store security guard to have exchanged expensive laptop computers for a less expensive printer in the printer’s box. He argued the evidence did not support a burglary conviction based on intent to commit larceny, the theory on which the jury was instructed. Instead, he claimed the evidence only supported theft by false pretenses. However, the evidence supported the finding that he entered the store intending to commit theft. That his conduct also established an attempt to commit theft by false pretenses was immaterial. And any error in failing to instruct on the latter theory was harmless. id: 23220
Defendant’s DNA on a rock near the crime scene was insufficient, by itself, to support the burglary conviction.Standing alone, the defendant’s DNA on a rock at the crime scene was insufficient to support the burglary conviction absent any facts showing his contact with the rock could only have occurred during the burglary. id: 23556
Entry into a closet in a residence constitutes entry into a room for burglary purposes.Defendant who had entered a house without intending to steal, opened a closet door with the intent to steal guns. Entry into the closet constituted the entry into a room for burglary purposes. Moreover, a burglary committed by an unlawful entry into a closet located in a residence constitutes burglary of an inhabited dwelling. id: 22895
The evidence supported the burglary conviction as it showed defendant did not innocently leave his fingerprints on a vase found in the victim’s house. Defendant was convicted of burglary. He argued the presence of his fingerprint on a vase in the burglarized house was insufficient to support a conviction absent a showing the fingerprint could not have been placed on the vase at some earlier time. However, the house was regularly cleaned and defendant admitted he had not been in the residence before. The evidence showed he did not innocently leave a fingerprint on the vase.id: 22616
That a realtor was on the property conducting an open house did not turn the residence into an uninhabited commercial property for purposes of first degree burglary.Defendant was convicted of first degree residential burglary for stealing credit cards from a realtor who was conducting an open house. He argued the burglary was not first degree, as a matter of law. However, for purposes of Penal Code sections 459 and 460, a residence does not become an uninhabited dwelling just because the owners leave the premises while a realtor conducts an open house on their behalves.id: 22747
The unenclosed balcony was within the apartment building’s outer boundary for purposes of residential burglary.Defendant was charged with residential burglary after climbing onto a second-story apartment’s private balcony, which was surrounded by a metal railing some four feet in height and accessible only through the single bedroom’s sliding glass door. A second floor apartment’s balcony is part of the apartment where, as here, it is designed to be entered from and offers an extension of the apartment’s living space.id: 22797
The burglary instructions did not erroneously impose a presumption that the apartment balcony qualified as a building for purposes of Penal Code section 459. Defendant argued the jury instructions on the elements of burglary erroneously imposed the presumption that the apartment balcony constituted a building for purposes of burglary. However the balcony was not accessible to the public, and whether the balcony was part of the structure was not a jury question. Even if the court erred by including the term “balcony” in the definition of burglary, any error was harmless where the evidence showed defendant was halfway inside the apartment and halfway on the balcony when he was seen.id: 21926
Evidence supported the first degree burglary conviction where there was no evidence the victim intended to abandon the fire damaged apartment defendant burglarized.Residents of the victim’s apartment building were temporarily relocated to a hotel because a fire had damaged the building. When the tenants were escorted back to retrieve personal belongings, the victim found defendant inside his apartment using his things, and preparing to remove other belongings. Defendant was later convicted of first degree burglary but argued the evidence was insufficient to show the apartment was inhabited within the meaning of Penal Code section 459. However, the issue of habitability is viewed through the eyes of the victim and there was no evidence showing the victim had permanently moved out or abandoned the apartment. Moreover, the court did not err by excluding evidence from the city building inspector suggesting the building was uninhabitable because that evidence was not relevant to the issue of whether the victim intended to return.id: 21392
Burglary-by-instrument doctrine is not restricted to larceny.Defendant used a paint sprayer filled with gasoline and a 20-foot long torch to set fire to his neighbor’s house while he remained on his own property. This evidence supported his conviction for attempted burglary under the burglary-by-instrument doctrine.id: 21700
The felony-murder escape rule applies to flight during the commission of a burglary.Contrary to defendant’s claim, the felony-murder escape rule applies to flight during the commission of a burglary. Moreover, the evidence in the present case established that the homicide occurred as part of a continuos transaction from the commission of the burglary before defendant was able to obtain a position of temporary safety. It did not matter that no one was home when the burglary was committed. id: 21779
A defendant who was a cotenant in an apartment could commit a burglary of the apartment after moving out.Defendant argued he did not commit burglary as a matter of law because he was a cotenant in the apartment where the burglary allegedly occurred. However, even if he had a possessory interest in the apartment under the lease at the time of the charged crimes, this was not a complete defense to the burglary charge where there was substantial evidence he had moved out of the apartment prior to the incident and therefore no longer had an unconditional possessory interest in the apartment unit.id: 21325
The carport area of the apartment complex is protected by the burglary statutes.Defendant was convicted of first degree burglary in violation of Penal Code section 460, subd.(a). Contrary to defendant’s claim, the carport area of the apartment complex where he committed the offense fell within the ambit of the burglary statute as it was continuous to and functionally interconnected with the inhabited apartment building. Moreover, the court’s instruction on the issue did not direct a verdict where the jury was required to determine whether the apartment structure was inhabited and that the carport was attached to it. Finally, the court was not required to instruct on reasonable belief regarding the penetration of a building for burglary since that is a legal question to be decided by the court.id: 21155
Burglary with intent to cause damage greater than $5,000 was a wobbler but that did not remove it from the felony murder status.Defendant challenged the felony-murder instruction by arguing that a violation of former Penal Code section 594(b)(a) (burglary with intent to cause damage in excess of $5,000) was not a felony, but a wobbler whose classification would depend on the judge’s sentence. However, that a judge might ultimately impose a misdemeanor sentence did not remove the offense from the class of crimes that may form the basis of a burglary conviction.id: 21154
The trial court did not err by refusing defendant’s request to modify the burglary instruction to specify the residence must be currently used as a dwelling.Defendant argued the trial court erred by denying his request to modify CALCRIM No. 1700 (defining the degrees of burglary) to state that for purposes of first degree burglary a house must be “currently” used as a dwelling. However, the unmodified instruction properly conveyed that message. Moreover, contrary to defendant’s claim there was evidence that the victim intended to return to his home. The fact that the victim was taken off life support the day before the crime, did not change the character of the residence for burglary purposes.id: 21023
The minor’s possession of stolen items supports an intent to steal at the time he entered the apartment.The minor argued the evidence was insufficient to support the burglary finding as it did not show that he intended to steal when he entered the victim’s residence. However, intent to steal can be inferred from the fact that he stole various items including a camcorder which his mother returned to the victim.id: 20467
Trial court must instruct the jury on the intent necessary to convict a defendant as an aider and abettor to burglary.CALJIC 3.01 which defines aiding and abetting, is ambiguous when applied to the crime of burglary since it does not state that a putative aider and abettor may not be convicted solely on the basis of intent to assist the perpetrator after the burglary has occurred. Because of the ambiguity of CALJIC 3.01 in this context, a defendant who is charged as an aider and abettor to burglary is entitled to an instruction clarifying the appropriate definition of the crime. A defendant may not be convicted as an aider and abettor if he assisted the perpetrator only after the burglary has occurred.id: 9657
A person who breaks into the family residence after a marital fight which results in his leaving the house can be convicted of burglary.Following marital problems, defendant's wife asked defendant to leave the family residence and he did so. Later that day, the wife had a suitcase and money delivered to defendant, and he surrendered his house keys. At that point defendant waived his unconditional right to enter the home. Danger did arise from his later entry into the home and the evidence supported the burglary conviction.id: 20057
Kicking in the door of a home can be sufficient entry to constitute burglary.A defendant kicked in the victim's door but before going inside, the victim came running out. Penetration of the victim's own door constituted the necessary entry for purposes of burglary.id: 20015
A convicted burglar's possession of a slingshot and box cutter supported the probation violation based on the possession of burglary tools.A box cutter and a slingshot are "instruments or tools" within the meaning of Penal Code section 466 which criminalizes the possession of burglary tools when they are in the possession of a convicted burglar who intends to use them as such. Defendant's possession of those tools supported the violation of his probation for possession of burglary tools.id: 19830
Defendant's possession of burglary tools such as bolt cutters, a pry bar and pliers, as well as other items such as binoculars and a ski mask supported his conviction for possessing burglary tools.Defendant argued the evidence was insufficient to support his
conviction of possessing burglary tools with the intent to break or enter under Penal Code section 466. However defendant possessed burglary tools such as a steel pry bar, bolt cutters, screw drivers and pliers, as well as items not contemplated by section 466 including walkie-talkie radios, binoculars and a ski mask. His possession of these items, along with his flight from law enforcement and later, request for the return of his "burglary tools" supported the conviction.id: 19710
A motel room rented for one night is an inhabited dwelling for burglary purposes.Defendant argued an occupied motel rooms is not an inhabited dwelling for burglary purposes if it is rented for only one night. However, a hotel or motel room which is currently
rented as a temporary habitation is an inhabited dwelling for burglary purposes regardless of the length of time for which it is rented.id: 19355
Defendant was properly convicted of burglary after forcibly entering the home which he owned as community property following the court order giving his wife sole possession. Defendant was convicted of burglarizing the house in which had ownership as a community property asset. However, the court order temporarily gave his wife sole possession and denied defendant a possessory right to enter the residence. Defendant could properly be convicted of burglary after forcibly entering the home in violation of the court order.id: 19267
Evidence that defendant intended to steal clothes to assist in his escape when he entered the house was sufficient to support the burglary conviction.Defendant argued the burglary conviction could not stand because it was not supported by substantial evidence that he intended to commit a felony when he entered the house. However, intent to commit a felony is not necessary if there is an intent to commit a petty theft. Here, the evidence showed that when he entered the house, he intended to steal clothes to assist in his escape from the police. This was sufficient to support the burglary conviction.id: 19092
Evidence of another sexual assault and the binding of the present victim supported the inference that defendant entered the residence intending to commit rape.Defendant argued the evidence did not support the burglary conviction and special circumstance finding because it did not show he entered the residence intending to commit rape. However, the closely associated sexual assault on another victim and the evidence that the present victim (Diane) was bound by her wrists and ankles supported the inference that defendant entered the townhouse intending to rape and kill Diane.id: 17937
A car with locked doors and open windows is "locked" for burglary purposes.The victim locked his vehicle but left the windows partly open for ventilation. The minor reached in and unlocked the door. The minor argued that because the window was partially open, the vehicle was not locked for purposes of Penal Code section 459. However, the minor altered the locked state of the vehicle in order to remove a cell phone. This was sufficient for burglary purposes.id: 17389
A broken car window supported the finding that the car was locked prior to the entry.Defendant was convicted of burglary. He argued the evidence did not support the verdict because the car owner did not testify the car was locked prior to the break in. However, when police arrived during the burglary the car window was broken. It was not broken several hours earlier. It is not rational to conclude someone would break a car window in the early morning hours to enter a unlocked car. Evidence supported the finding that the car was locked when the entry occurred.id: 17406
Penetration into the area behind a closed window amounts to an entry for burglary purposes.Penetration into the area behind a window screen amounts to an entry of a building within the meaning of the burglary statute when the window itself is closed and is not penetrated.id: 16827
Entering the bedroom of a house can support a burglary conviction if the requisite intent was formed after the defendant had entered the house.A defendant's entry into a bedroom within a single-family house with the requisite intent can support a burglary conviction if that intent was formed only after the defendant's entry into the house.id: 16834
Entry of a home with intent to take a shower supported burglary conviction since the soap and shampoo had some intrinsic value.Defendant was convicted of residential burglary. He argued the evidence was insufficient to prove an intent to commit larceny at the time he entered the building since he only entered with the intent to take a shower. However, intending to use the soap, shampoo and hot water of the homeowner constituted an intent to steal since each of the items would have some, albeit slight, intrinsic value.id: 16650
Victim's apartment was an "inhabited dwelling" for burglary purposes even though she had moved some belongings to her boyfriend's house where she also slept.Defendant argued there was insufficient evidence to show the victim's apartment was an inhabited dwelling for burglary purposes because she had moved most of her possessions to her boyfriend's house where she slept. However, while she was in the process of moving in with her boyfriend, she had not already done so. The evidence supported the burglary conviction in light of the victim's presence in the apartment during the daytime.id: 16662
Intent to permanently deprive the owner is satisfied by intent to temporarily deprive where the property loses most of its value during that period.Under California law, theft requires an intent to permanently deprive another of property. The requirement is satisfied by the intent to take the property only temporarily, but for so extended a period of time as to deprive the owner of a major portion of its value or enjoyment.id: 16628
Knowledge that a key used in a crime was a master key is not an element of the offense described in section 466.5, subd.(b).Penal Code section 466.5, found in the chapter dealing with burglary tools, prohibits the possession of a master key with the intent to commit an unlawful act. Knowledge that the key is a master key is not an element of the crime.id: 16492
Phrase "during the commission of a burglary" for the one strike law includes the time the burglar remains on premises after the entry and extends until he reaches a place of temporary safety.Penal Code section 667.61, the one strike law, mandates indeterminate life terms for those who, among other things, commit a rape "during the commission of a burglary". Defendant argued the rape occurred after the burglary since the burglary was complete the moment he entered the structure with the intent to commit a theft or other felony. However, the phrase "during the commission of a burglary" includes the period of time that a burglar remains on the premises after entry and extends until the burglar has reached a place of temporary safety.id: 16497
A defendant may be convicted of both burglary and receiving property taken during the burglary.Defendant was convicted of receiving stolen property based on his possession of property taken during the burglary of which he was also convicted. Both convictions were proper.id: 15462
A defendant may lawfully be convicted of both burglary and receiving property he stole during the burglary.A defendant may lawfully be convicted of burglary and of receiving property that he stole during the burglary. Since he could lawfully be convicted of both crimes, the court did not err in refusing defendant's requested jury instruction, which would have told the jury that burglary and receiving stolen property were alternative charges.id: 15463
A hospital room in a locked psychiatric hospital is an inhabited dwelling for purposes of first degree burglary.A hospital room in a locked psychiatric hospital is an inhabited dwelling for the purpose of first degree burglary. Moreover, evidence supported the conviction where defendant entered the room intending to rape the victim, even though he believed there was a chance she might consent to the sex.id: 15464
Burglary of a home office that shared a roof and common wall with the residence constituted first degree burglary.Defendant argued the evidence was insufficient to prove first degree burglary. He claimed the home office he burglarized was not a functional part of the residence, even though the office and residence shared a common roof, because the office was neither used as a living space nor connected to the dwelling by an interior door. However, the evidence supported the first degree burglary conviction where the office was functionally related to and immediately contiguous with the dwelling.id: 15465
Burglary of the laundry facility within an apartment complex constitutes first degree burglary.Defendant argued the evidence did not support a first degree burglary conviction because a "commercial laundry facility" within the common area of an apartment complex does not constitute an inhabited dwelling house. However, evidence supported the conviction since the safety and privacy expectations surrounding an inhabited dwelling house are present in the common area laundry room of the apartment complex defendant burgled. Moreover, identifying the apartment complex manager as the victim on the information was not a fatal flaw.id: 15466
Burlary conviction was upheld despite defendants claim he entered the house with the consent of the husband to kill the wife.Defendant argued his burglary conviction could not stand because he entered the house with the husbands consent after the husband provided him with the key so that he could enter and kill the wife. However, that the husband knew of defendants felonious intent did not give the defendant an unconditional possessory right to enter for any purpose, and certainly not for the purpose of injuring the wife.id: 15467
Defendant committed residential burglary where he removed a lock mechanism, had a key made, returned the lock, all so that he could return and commit a felony assault on a later date.Defendant argued he could not be found guilty of residential burglary for an entry into the victim's residence where he removed a lock mechanism, took it to a locksmith who made a key which defendant retained, and then returned the lock to its original position. He argued no burglary was committed because he did not take the lock with the intent to permanently deprive the victim of it. Rather, his intent at the time of entry was to commit a felony assault on the victim on a future date. However, entry with intent to facilitate commission of theft or a felony on a later occasion satisfies the intent requirement of Penal Code section 49. Moreover, defendant's acquisition of the house key was theft even though it was later returned. Finally, where the defendant was convicted of both the burglary and the later assault, Penal Code section 654 did not bar imposition of separate sentences.id: 15468
Defendant may be convicted of both burglary and receiving stolen property taken during the burglary.Defendant argued the statutory and common law prohibitions against dual convictions of receiving stolen property and theft also bars dual convictions of receiving stolen property and burglary, at least where the burglary in question was an entry with intent to commit theft. However, the rule against dual convictions of receiving stolen property and theft does not bar dual convictions of receiving stolen property and burglary.id: 15470
Entry into six rooms at a single school constitutes six separate burglaries under Penal Code section 459.Defendant's entry into separate rooms - assigned to different people, locked from the outside, and largely located in separate buildings on the school campus - constituted separate burglaries within the meaning of Penal Code section 459. The purpose of the statute, which is to protect against the danger of unauthorized entries, is furthered if each entry into a separately secured room, whose occupants have an independent expectation of protection against intrusion, constitutes a separate burglary.id: 15471
Evidence was sufficient to show defendant entered Wendy's with intent to commit theft where he wore a scarf, dark clothing and gloves, and demanded money upon seeing the manager.Defendant entered Wendy's wearing a scarf around his head, dark clothing and gloves. When he encountered the assistant manager he immediately demanded money. Evidence supported the finding that he entered Wendy's with the intent to commit a theft and did not form it while seated in the restaurant eating his dinner.id: 15472
Garage attached to a duplex was an inhabited dwelling for purposes of residential burglary.The victim occupied one residence in a duplex. The garage was located at the rear of the structure and shared the roof and one wall with it. The tenants shared the garage but the only access to it was from an exterior door. The garage was an inhabited dwelling within the meaning of Penal Code section 460.id: 15473
The trial court properly instructed that an attached garage is part of the inhabited dwelling for purposes of first degree burglary.Defendant argued that first degree burglary requires entry into an inhabited dwelling, and by instructing that an attached garage is part of an inhabited dwelling the court usurped the jury's fact finding function as to that element. However, the trial court properly instructed the jury that for purposes of Penal Code section 460, the statute defining degrees of burglary, a garage attached to the dwelling house is considered to be a part of the inhabited structure.id: 15474
Absent evidence of claim of right there was no sua sponte duty to instruct on trespass and assault as LIO's of burglary and robbery.Defendant argued the court erred by failing to instruct sua sponte on trespass and assault as lesser included offenses of burglary and robbery, respectively. However, there was no evidence that defendant intended to take only items from the victims to which he had a bona fide belief of a right or claim.id: 15409
Murder victim's statements regarding fear of defendant were relevant to prove lack of consent to burglary and robbery, and were admissible under the state-of-mind exception.The trial court did not err in allowing the testimony of three witnesses regarding the victim's statements declaring her fear of defendant. The statements were relevant to prove the lack of consent to the burglary and robbery related to her murder. Moreover, the statements were admissible under the state-of-mind exception to the hearsay rule where they were reliable and offered to prove lack of consent in the burglary and robbery.id: 15417
Defendant may be properly convicted of burglary and receiving stolen property, subject to section 654.Defendant argued he could not be convicted of burglary and receiving stolen property. However, because burglary requires only unconsented entry with the intent to commit theft or another felony and receiving stolen goods involves the knowing, receiving, concealing or withholding of goods obtained by theft or extortion, defendant may be convicted of both crimes, subject to Penal Code section 654.id: 10351
Defendant's fingerprint on a wristwatch box found in the burgled condo supported the first degree burglary conviction.Defendant left a fingerprint on a wristwatch box found in the burgled condominium. The victim testified the box had never left the condominium so defendant either touched it during an uninvited foray, or did so 18 months earlier (before the victim received the gift). The conviction was supported by substantial evidence.id: 10352
Defendant's use of a car to transport himself to and from the burglary justified the revocation of his driver's license.Defendant pled guilty to second degree burglary of a vehicle. The sentencing court made a finding that he used a vehicle in committing the crime and ordered the DMV to revoke his driver's license for one year, pursuant to Vehicle Code section 13350. Evidence supported the finding of use of a motor vehicle. Defendant had seen the radio in the victimized car earlier in the day, formed the intent to return in his car, after dark, and remove the radio for himself. He used his vehicle to transport himself to and from the crime scene. There was a sufficient nexus between the crime and the vehicle use to justify the application of section 13350.id: 10353
Direct evidence of defendant's involvement in robbery together with circumstantial evidence of his involvement in the second robbery supported his conviction for the second robbery.The sufficient evidence establishing defendant's guilt for the Alexander burglary and the circumstantial evidence surrounding the Poluso burglary including statements from people who had chased the burglar sufficed to support defendant's conviction for the Poluso burglary.id: 10354
Evidence supported burglary conviction where defendant attempted to use ATM card to gain cash from a machine despite the lack of a PIN number.Defendant was convicted of second degree burglary after an attempt to use a stolen ATM card into a bank machine. She argued it was legally impossible to commit a burglary because she did not know the personal identification number, and randomly entered a few numbers to show a third party she could not obtain the money he requested. However, the jury may reasonably have concluded she was methodically entering numbers in an attempt to gain the case. Even without the PIN number it was not legally impossible for her to commit the offense.id: 10355
Evidence supported finding of an inhabited dwelling for first degree burglary notwithstanding that the victims had not yet slept there.Defendant argued the evidence was insufficient to support his conviction of first degree burglary because the evidence did not show the residence was inhabited when the burglary was committed. The victims had never slept in the apartment and had not unpacked their belongings. However, the victims had had the utilities connected and had moved all of their belongings into the apartment, intending to occupy it as their residence. Evidence supported the jury's finding that although the victims had not yet slept there, the apartment was occupied by them as a place of settled residence from which they were merely temporarily absent.id: 10356
Evidence supported first degree burglary where the count involved a garage which was attached but not connected by a doorway to the inhabited portion of the house.Defendant burglarized a garage. Although the garage and house shared a common roof, there was no connecting door which providing immediate access to the living quarters from the garage. Therefore, he argued the crime was second degree burglary. However, the garage was functionally interconnected with and immediately contiguous to other portions of the house. The absence of an inside door did not compel a designation of second degree burglary.id: 10357
Fact that no one slept in victim's second home did not render the burglary second degree.Defendant argued the first degree burglary conviction was improper because the house involved had noone living in it. However, victim's testimony to the effect that he considered his second house an extension of his home, and describing the uses to which he put that second house, constituted sufficient evidence to support defendant's conviction of first degree burglary rather than second degree.id: 10358
Failure to specify the degree of the burglary on the verdict form did not require that it be reduced to second degree.Defendant argued his conviction was deemed second degree burglary because there was no specification of degree on the verdict form. However, the information charged first degree residential burglary; the evidence would only support first degree burglary; and the verdict form, specifically finding burglary of a residence, was just another way of saying first degree burglary. There was no reason to reduce the degree under the circumstances.id: 10359
Felony indecent exposure can be the underlying felony for a burglary charge.Appellant argued that since indecent exposure is a felony only if it takes place in an inhabited dwelling house or structure the crime does not obtain felony status until after the act of exposure has taken place inside the inhabited structure. Therefore, he could not have had the requisite intent for burglary when he entered the residence and the burglary conviction could not stand as a matter of law. Whether he knew of the intricacies that made indecent exposure a felony was irrelevant to the analysis of whether he had the requisite intent to commit the burglary. Moreover, the instant provision (Penal Code section 314, subd. 1) does not preclude a conviction on the theory that a more specific statute controls over a general statute.id: 10360
Forcible entry from the garage to the living quarters of the house constituted residential burglary.Defendant argued the prosecutor erred in arguing to the jury that he could be convicted of burglary as long as he had formed an intent to steal at the time that he broke into the living area of the house from the garage, regardless of whether he had formed such an intent when he first entered the garage itself. However, the prosecutor properly argued that defendant was guilty of burglary if he had formed the intent to steal at the time he forced open the door from the garage to the kitchen.id: 10361
Intent to commit theft for burglary was established where good funds and bad funds were commingled in a bank account and defendant attempted to withdraw an amount not exceeding the good funds.Defendant argued the evidence was insufficient to support a finding of intent to commit theft where he attempted to withdraw less than the cash he deposited in an account in which he had also deposited invalid money orders. However, when good funds and bad funds are commingled in a bank account, an attempt to withdraw an amount not exceeding the good funds does not preclude a finding of intent to commit theft. Because the evidence strongly demonstrated a common scheme of defrauding various banks and because the legal and illegal funds deposited in this account were not distinguishable, evidence supported a finding of intent to commit theft.id: 10363
Juvenile court's failure to set the degree of the burglary did not require that it be reduced to second degree burglary.The juvenile court found appellant guilty of the burglary of a residence. The court failed at both the dispositional and jurisdictional hearings to specify the degree of the burglaries. Appellant argued the failure to specify the degree of burglary required that it be reduced to second degree burglary. However, the appropriate disposition was to remand the matter to fix the degree of the burglary.id: 10364
Multiple entries of the same residence with the requisite intent to steal supported two burglary convictions.The crime of burglary is complete after an unlawful entry with the intent to commit a felony. Therefore, every entry with the requisite intent supports a conviction. Defendant was properly charged with two burglaries of the same residence.id: 10365
Palm prints on the broken portion of the kitchen window coupled with appellant's prior visits to the apartment without entering the kitchen supported the burglary conviction.Appellant argued the evidence of his palm prints on a broken pane of glass found in a dumpster behind the building was insufficient to sustain a burglary conviction. However, the evidence also established that appellant had been in the apartment three to five times earlier and was familiar with the stolen VCR because he had installed it. Moreover, when defendant was previously in the apartment, he did not go into the part of the kitchen where the palm prints were found. Finally, the windows were washed every other weekend and there was no evidence that he had been in the apartment between the last window washing and the burglary nor was there evidence that he would have had reason to place his hand on the window exterior except to gain surreptitious entry. The evidence supported the conviction.id: 10366
Placement of the tire iron between the screen and the door constituted an entry for burglary purposes.Evidence established that the tire iron violated the air space between the screen and the door. This constitutes sufficient evidence of entry for purposes of burglary and the trial court did not err in so instructing.id: 10367
Question regarding the victim's possessory right to the premises was irrelevant to the first degree burglary conviction.Defendant argued that a first degree burglary conviction may only lie when the building in question is inhabited by someone with a possessory right. However, defendant knew the victim was occupying the cabin in question. If there was a dispute about her right to occupy the premises, that was a matter between her and the property management, or perhaps the sheriff. It was irrelevant to the burglary.id: 10368
Rented room in boarding house is a separate residence for burglary statute.Given the fact that the Galen residence was being operated as a boarding house, and that each room was equipped with a lock and key, the victim's room was a separate residence pursuant to Penal Code section 460. Therefore, even if defendant formed the intent to steal after entering the residence, he necessarily entertained the requisite felonious intent upon entry into the victim's room.id: 10370
Second entry through door unlocked during the initial entry constituted a separate burglary.A second entry into a burglarized home via a door unlocked during the initial visit several hours earlier constitutes a separate burglary.id: 10371
Someone who enters a home with the intent to commit extortion is guilty of burglary.A person who enters a home with the intent to commit extortion is guilty of burglary. This is the case even if the extortion will not be completed until sometime in the future at a location other than where the entry took place.id: 10372
That a minor invited defendant into his house knowing that defendant intended to steal was insufficient to preclude a burglary conviction.Appellant was found to have committed a residential burglary. He argued there was no illegal entry of the victims' residence because his friend Scott lived there and invited appellant inside knowing that he intended to commit a theft. However, that Scott lived there was not enough to preclude a burglary conviction. Scott did no have an unconditional possessory interest in his mother's residence. No possessory right in a parental residence is implied by a parent's duty of financial support.id: 10373
The jury determined the burglary to be of the first degree by specifying residential burglary in the verdict form.The jury found defendant guilty of burglary of a residence but did not indicate the degree of the burglary. Since the verdict form specified residential burglary, it reflected that the jury determined the crime to be burglary of the first degree.id: 10374
The requisite intent for auto burglary may be inferred from the circumstances surrounding the break-in of a locked vehicle.Defendant argued that an intent to permanently deprive the owner of property cannot be inferred from the break-in and attempted taking of a locked automobile. However, the requisite intent for auto burglary may be inferred from the circumstances surrounding the break-in of a locked vehicle. That the legislature has enacted separate crimes and punishments for different types of automobile takings does not preclude the trier of fact from concluding that the culprit intended to permanently deprive the owner of the car or property therein.id: 10375
Trailer coaches need not be locked in order to be burglarized under section 459.Defendant was convicted of second degree burglary of a trailer coach pursuant to Penal Code section 459. He argued the court erred in failing to instruct the jury that in order to convict him of burglary the jurors must find that the trailer coach was locked. However, trailer coaches need not be locked in order to be burglarized under the statute.id: 10376
Vacation homes and trailers were inhabited dwellings for purposes of first degree burglary.Defendant was convicted of four counts of first degree burglary involving two vacation homes and two trailers. He argued there was insufficient evidence the victim's residences were inhabited dwellings within the meaning of Penal Code sections 459 and 460 because the vacation homes or second homes were not the victims regular primary living quarters. However, the occupant of a vacation home reasonably expects the same protection from unauthorized intrusions as the occupant of any other residence. Evidence supported the jury's finding the vacation or second homes were inhabited dwellings for purposes of first degree burglary.id: 10377
Vehicular burglary conviction was proper where defendant broke into a car with the intent to steal that car.Defendant argued his conviction of vehicular burglary must be reversed because the only felony he intended to commit when he broke into the car was the theft of that car. However, the court found that section 459 means what it says and the burglary conviction was appropriate because it was based upon defendant's non-consensual entry into the Nissan with the requisite felonious intent - the intent to commit a felony by stealing the Nissan.id: 10378
Writing checks on a closed bank account inside the victims' homes for items victims advertised for sale constituted burglary.Defendant committed burglary when he entered a house with the intent to steal property by giving the victim a worthless check in exchange for various items the victim was selling.id: 10379
A non-theft-related burglary can be used to elevate petty theft to a felony.A non-theft-related burglary can be used to elevate petty theft to a felony under Penal Code section 666. The interference with the possessory rights of another is a common thread which finds burglary and theft whether or not the burglary was committed with theft in mind.id: 10331
A student dormitory room is a separate inhabited dwelling for burglary purposes.An individual student dormitory room is a separate inhabited dwelling within the meaning of Penal Code section 459. Evidence therefore supported defendant's conviction for three separate burglaries within the dormitory.id: 10332
A tent is an inhabited dwelling for purposes of first degree burglary.It is the element of habitation, not the nature of the structure that elevates the crime of burglary to first degree. The tent in the instant case, having four sides and a roof and being inhabited by the victims for sleeping and storage of their possessions, was a dwelling house for purposes of Penal Code section 460, subd. (a).id: 10333
An implicit after-the-fact consent does not constitute an automatic defense to the crime of burglary and no sua sponte instruction on the subject was required.Defendant argued the trial court erred by failing to instruct the jury sua sponte that his sister's consent to his taking her property constituted a defense to the burglary charge. The defense had claimed defendant had silent permission to enter and take the property although he was never told that until long after the event had taken place. However, an implicit after-the-fact consent does not constitute an automatic defense to a burglary charge and the court was not required to so instruct.id: 10334
An office space in the lobby of a public building is a room for purposes of burglary.An office space in the lobby of a public building, separated from the lobby by a waist-high counter, is a room for purposes of the burglary statute, Penal Code section 459. The counter, with a gate, reasonably communicated to all that non-employees could not enter the office area without authorization.id: 10335
Attempted burglary instruction was not required where evidence established that defendant's arm was through the victim's door.Evidence established that appellant's hand and arm were through the doggie door in the victim's back door. This was an entry for purposes of burglary. The trial court did not err in failing to instruct the jury on attempted burglary.id: 10337
Burglary may be committed when the intent to steal is formed after the entry to a building but before entering a room from which defendant intends to steal property.The trial court correctly instructed the jury that it could convict defendant of burglary (Penal Code section 459) if it found he formed the intent to steal after he entered the relevant structure but before he entered the room within the structure from which items were taken.id: 10338
Civil Code section 5102 does not endow one with the right to burglarize the dwelling of his or her estranged spouse.Appellant was convicted of burglarizing a cabin owned and occupied by his estranged wife's parents. He argued that since his wife also resided there, Civil Code section 5102, subdivision (a) gave him an unconditional right to enter, thereby precluding a conviction for burglary as a matter of law. However, appellant did not have an ownership or tenancy interest entitling him to enter the cabin without permission. His right to enter was qualified to a lawful purpose and he was properly convicted of burglary.id: 10339
Court did not err in entering convictions of both burglary and petty theft occurring during the burglary.Defendant argued the trial court erred in entering convictions of both burglary and receiving stolen property. However, theft is not a lesser included offense of burglary since burglary can be committed without committing a theft. The court properly entered a judgment of conviction of burglary and petty theft committed during the burglary and then stayed punishment for the petty theft pursuant to Penal Code section 654.id: 10340
Court did not err in refusing to instruct on joyriding as a lesser related offense of residential burglary where defendant took the burglary victim's truck for a ride.The trial court did not err in refusing defendant's requested instruction on joyriding as a lesser related offense of residential burglary. Defendant's act in driving the burglary victim's pickup truck to Valley Springs served to link him with the burglary because the truck's keys had been left by the victim in the house and because one of the people accompanying defendant was in possession of some of the stolen property. However, these aspects of the joyriding incident relate to the burglary only circumstantially and not in any direct way.id: 10341
Court properly refused to instruct on trespass as a lesser related offense of burglary based on the mistake-of-fact defense.Defendant was convicted of burglary. He argued the court erred by refusing to instruct the jury as to unauthorized entry as a lesser related offense. However, since the mistake of fact defense negated the requisite intent for both offenses, if a jury determined defendant was innocent of the burglary, it would also have acquitted him of the trespass offense. He did not dispute that he entered the garage and took the fishing gear. He argued he mistakenly thought he had permission. It would have been impossible to find him innocent of theft and yet guilty of trespass. The court properly determined the lesser related instruction as to trespass was not required.id: 10344
Court was not required to instruct on auto tampering as a lesser included offense of vehicular burglary where there was no evidence that defendant tampered with the vehicle rather than burglarizing it.Defendant argued the court erred in failing to instruct the jury sua sponte regarding auto tampering as a lesser included offense of vehicular burglary. However, the defense was that no offense had been committed. Nothing in the evidence suggested that defendant may have merely tampered with the trailer coach rather than burglarizing it. The court did not err in failing to instruct on auto tampering.id: 10345
Court's finding of a residential burglary was sufficiently descriptive to support first degree burglary.Appellant was found to have committed a residential burglary and was committed to the Youth Authority. He argued the crime must be deemed a second degree burglary because the lower court failed to make a finding as to the degree of the offense. However, the finding as to the degree of the crime can be satisfied by using a descriptive label as well as by a numerical degree. At the disposition hearing, the juvenile court found appellant committed a residential burglary. Since all residential burglaries are considered to be of the first degree, this characterization of the offense was sufficiently descriptive to support the first degree burglary finding.id: 10346
Court's recital that defendant was guilty of residential burglary constituted a finding of first degree burglary.Appellant argued that in finding him guilty of the charged offense, the trial court never expressly declared that it was a first degree burglary, and therefore it must be deemed second degree as a matter of law. However, the recital by the court that the defendant was guilty of residential burglary constituted a finding of first degree burglary.id: 10347
Defendant committed burglary when he entered the victim's home with the intent to sell fraudulent securities.Defendant's alleged entry into the home of an intended victim for the purpose of selling fraudulent securities constituted burglary notwithstanding that the act may have posed no physical danger to the victim who had invited defendant in to purchase securities from him. Prosecution under the general burglary statutes was not precluded because of Corporations Code provisions that specifically cover this conduct.id: 10348
Defendant entered the apartment building for burglary purposes when he broke through the locked gate onto an outer stairway.Defendant argued that entry through a locked gate onto an outdoor stairway does not constitute burglary. However, when defendant broke through the locked gate he entered the building. The metal gate was a permanent part of the dwelling relied upon by the building occupants for protection against unauthorized intrusions. Defendant's act of cutting and opening the gate violated the inhabitants' expectation that intruders would not penetrate the space without permission.id: 10350
Burglary is committed where the entry is closely connected with and is made in order to facilitate the intended crime.The evidence showed that although they did not know where they would ultimately find him, defendants entered Stephanie's apartment for the specific purpose of tracking down Trey in an effort to assault him. Thus, their entry into the apartment was closely connected with and made in order to facilitate the crime of assaulting Trey. The elements of burglary were satisfied and the court was not required to instruct on the legal principle that defendants must have intended to commit the offense within, or in the immediate vicinity of, Stephanie's apartment.id: 9890
Ceramic pieces of spark plugs do not qualify as burglar tools under section 466.Defendant was convicted of possession of burglar tools under Penal Code section 466. The ceramic spark plug pieces he possessed were not specifically listed in section 466. Neither are they objects similar to the instruments specifically listed.id: 9891
Court did not err in failing to instruct the jury regarding the burglary that it must agree upon which felony the defendant intended when he entered the victim's apartment.The jury was instructed that defendants were guilty of burglary if they entered the apartment with the intent to steal, falsely imprison, or commit an aggravated assault. The trial court was not required to instruct the jury that it needed to unanimously agree on the basis of the intent in order to return a guilty verdict.id: 9892
Felonious entry into an inner room of a house with the intent to steal is burglary even if there was no such intent upon entry of the house.Defendant argued the jury was erroneously instructed that it could convict for residential burglary if he formed the intent to steal after entering the house. However, felonious entry into an inner room of a house with the intent to commit theft is sufficient for burglary even if there was no such intent upon entry of the house.id: 9893
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
Case of the Day
The case of the day summarizes a current case and is viewed by lawyers and judges around the state every day.
Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245