CALCRIM No. 1700. Burglary (Pen. Code, § 459)

Judicial Council of California Criminal Jury Instructions (2022 edition)

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A. BURGLARY
1700.Burglary (Pen. Code, § 459)
The defendant is charged [in Count ] with burglary [in violation
of Penal Code section 459].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant entered (a/an) (building/room within a building/
locked vehicle/structure/ <insert other statutory
target>);
[AND]
2. When (he/she) entered (a/an) (building/room within the building/
locked vehicle/structure/ <insert other statutory target>), (he/she)
intended to commit (theft/ [or] <insert one or more
felonies>).
<If the evidence supports a defense theory that the crime was shoplifting
as defined by Penal Code section 459.5, give paragraph 3A and the
appropriate following optional paragraphs>
[AND]
[3A. The value of the property taken or intended to be taken was
more than $950.00](;/.)]
[OR]
[3B. The structure that the defendant entered was a noncommercial
establishment(;/,)]
[OR]
[3C. The structure was a commercial establishment that the defendant
entered during non-business hours.]]
To decide whether the defendant intended to commit (theft/ [or]
<insert one or more felonies>), please refer to the separate
instructions that I (will give/have given) you on (that/those) crime[s].
<Give the following bracketed paragraph if the second degree is the only
possible degree of the charged crime for which the jury may return a
verdict.>
[If you find the defendant guilty of burglary, it is burglary of the second
degree.]
A burglary was committed if the defendant entered with the intent to
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commit (theft/ [or] <insert one or more felonies>). The
defendant does not need to have actually committed (theft/ [or]
<insert one or more felonies>) as long as (he/she) entered
with the intent to do so. [The People do not have to prove that the
defendant actually committed (theft/ [or] <insert one or
more felonies>).]
[Under the law of burglary, a person enters a building if some part of his
or her body [or some object under his or her control] penetrates the area
inside the building’s outer boundary.]
[A building’s outer boundary includes the area inside a window screen.]
[An attached balcony designed to be entered only from inside of a
private, residential apartment on the second or higher floor of a building
is inside a building’s outer boundary.]
[The People allege that the defendant intended to commit (theft/ [or]
<insert one or more felonies>). You may not find the
defendant guilty of burglary unless you all agree that (he/she) intended
to commit one of those crimes at the time of the entry. You do not all
have to agree on which one of those crimes (he/she) intended.]
New January 2006; Revised October 2010, February 2012, February 2013, August
2015
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
If the crime charged is shoplifting, give CALCRIM No. 1703, Shoplifting, instead
of this instruction.
When the People allege the defendant has a prior conviction for an offense listed in
Penal Code section 667(e)(2)(C)(iv) or for an offense requiring registration pursuant
to subdivision (c) of section 290, give CALCRIM No. 3100, Prior Conviction:
Nonbifurcated Trial or CALCRIM No. 3101, Prior Conviction: Bifurcated Trial.
If second degree burglary is the only possible degree of burglary that the jury may
return as their verdict, do not give CALCRIM No. 1701, Burglary: Degrees.
Although actual commission of the underlying theft or felony is not an element of
burglary (People v. Montoya (1994) 7 Cal.4th 1027, 1041-1042 [31 Cal.Rptr.2d 128,
874 P.2d 903]), the court has a sua sponte duty to instruct that the defendant must
have intended to commit a felony and has a sua sponte duty to define the elements
of the underlying felony. (People v. Smith (1978) 78 Cal.App.3d 698, 706 [144
Cal.Rptr. 330]; see also People v. Hughes (2002) 27 Cal.4th 287, 349 [116
Cal.Rptr.2d 401, 39 P.3d 432].) Give all appropriate instructions on theft or the
felony alleged.
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If the area alleged to have been entered is something other than a building or locked
vehicle, insert the appropriate statutory target in the blanks in elements 1 and 2.
Penal Code section 459 specifies the structures and places that may be the targets of
burglary. The list includes a house, room, apartment, tenement, shop, warehouse,
store, mill, barn, stable, outhouse or other building, tent, vessel, floating home as
defined in Health and Safety Code section 18075.55(d), railroad car, locked or
sealed cargo container whether or not mounted on a vehicle, trailer coach as defined
in Vehicle Code section 635, house car as defined in Vehicle Code section 362,
inhabited camper as defined in Vehicle Code section 243, locked vehicle as defined
by the Vehicle Code, aircraft as defined in Public Utilities Code section 21012, or
mine or any underground portion thereof. (See Pen. Code, § 459.)
On request, give the bracketed paragraph that begins with “Under the law of
burglary,” if there is evidence that only a portion of the defendant’s body, or an
instrument, tool, or other object under his or control, entered the building. (See
People v. Valencia (2002) 28 Cal.4th 1, 7-8 [120 Cal.Rptr.2d 131, 46 P.3d 920];
People v. Davis (1998) 18 Cal.4th 712, 717-722 [76 Cal.Rptr.2d 770, 958 P.2d
1083].)
On request, give the bracketed sentence defining “outer boundary” if there is
evidence that the outer boundary of a building for purposes of burglary was a
window screen. (See People v. Valencia (2002) 28 Cal.4th 1, 12-13 [120
Cal.Rptr.2d 131, 46 P.3d 920].)
Whenever a private, residential apartment and its balcony are on the second or
higher floor of a building, and the balcony is designed to be entered only from
inside the apartment, that balcony is part of the apartment and its railing constitutes
the apartment’s “outer boundary.” (People v. Yarbrough (2012) 54 Cal.4th 889, 894
[144 Cal.Rptr.3d 164, 281 P.3d 68].)
If multiple underlying felonies are charged, give the bracketed paragraph that begins
with “The People allege that the defendant intended to commit either.” (People v.
Failla (1966) 64 Cal.2d 560, 569 [51 Cal.Rptr. 103, 414 P.2d 39]; People v. Griffın
(2001) 90 Cal.App.4th 741, 750 [109 Cal.Rptr.2d 273].)
If the defendant is charged with first degree burglary, give CALCRIM No. 1701,
Burglary: Degrees.
AUTHORITY
Elements. Pen. Code, §§ 459, 459.5.
Instructional Requirements. People v. Failla (1966) 64 Cal.2d 560, 564,
568-569 [51 Cal.Rptr. 103, 414 P.2d 39]; People v. Smith (1978) 78 Cal.App.3d
698, 706-711 [144 Cal.Rptr. 330]; People v. Montoya (1994) 7 Cal.4th 1027,
1041-1042 [31 Cal.Rptr.2d 128, 874 P.2d 903].
Burden for Consent Defense Is to Raise Reasonable Doubt. People v. Sherow
(2011) 196 Cal.App.4th 1296, 1308-1309 [128 Cal.Rptr.3d 255].
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LESSER INCLUDED OFFENSES
Attempted Burglary. Pen. Code, §§ 663, 459.
Tampering With a Vehicle. Veh. Code, § 10852; People v. Mooney (1983) 145
Cal.App.3d 502, 504-507 [193 Cal.Rptr. 381] [if burglary of automobile
charged].
RELATED ISSUES
Auto Burglary - Entry of Locked Vehicle
Under Penal Code section 459, forced entry of a locked vehicle constitutes burglary.
(People v. Young K. (1996) 49 Cal.App.4th 861, 863 [57 Cal.Rptr.2d 12].) However,
there must be evidence of forced entry. (See People v. Woods (1980) 112
Cal.App.3d 226, 228-231 [169 Cal.Rptr. 179] [if entry occurs through window
deliberately left open, some evidence of forced entry must exist for burglary
conviction]; People v. Malcolm (1975) 47 Cal.App.3d 217, 220-223 [120 Cal.Rptr.
667] [pushing open broken wing lock on window, reaching one’s arm inside vehicle,
and unlocking car door evidence of forced entry].) Opening an unlocked passenger
door and lifting a trunk latch to gain access to the trunk is not an auto burglary.
(People v. Allen (2001) 86 Cal.App.4th 909, 917-918 [103 Cal.Rptr.2d 626].)
Auto Burglary - Definition of Locked
To lock, for purposes of auto burglary, is “to make fast by interlinking or interlacing
of parts . . . [such that] some force [is] required to break the seal to permit
entry . . . .” (In re Lamont R. (1988) 200 Cal.App.3d 244, 247 [245 Cal.Rptr. 870],
quoting People v. Massie (1966) 241 Cal.App.2d 812, 817 [51 Cal.Rptr. 18] [vehicle
was not locked where chains were wrapped around the doors and hooked together];
compare People v. Malcolm (1975) 47 Cal.App.3d 217, 220-223 [120 Cal.Rptr. 667]
[vehicle with locked doors but broken wing lock that prevented window from being
locked, was for all intents and purposes a locked vehicle].)
Auto Burglary - Intent to Steal
Breaking into a locked car with the intent to steal the vehicle constitutes auto
burglary. (People v. Teamer (1993) 20 Cal.App.4th 1454, 1457-1461 [25 Cal.Rptr.2d
296]; see also People v. Blalock (1971) 20 Cal.App.3d 1078, 1082 [98 Cal.Rptr.
231] [auto burglary includes entry into locked trunk of vehicle].) However, breaking
into the headlamp housings of an automobile with the intent to steal the headlamps
is not auto burglary. (People v. Young K. (1996) 49 Cal.App.4th 861, 864 [57
Cal.Rptr.2d 12] [stealing headlamps, windshield wipers, or hubcaps are thefts, or
attempted thefts, auto tampering, or acts of vandalism, not burglaries].)
Building
A building has been defined for purposes of burglary as “any structure which has
walls on all sides and is covered by a roof.” (In re Amber S. (1995) 33 Cal.App.4th
185, 187 [39 Cal.Rptr.2d 672].) Courts have construed “building” broadly and found
the following structures sufficient for purposes of burglary: a telephone booth, a
popcorn stand on wheels, a powder magazine dug out of a hillside, a wire chicken
coop, and a loading dock constructed of chain link fence. (People v. Brooks (1982)
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133 Cal.App.3d 200, 204-205 [183 Cal.Rptr. 773].) However, the definition of
building is not without limits and courts have focused on “whether the nature of a
structure’s composition is such that a reasonable person would expect some
protection from unauthorized intrusions.” (In re Amber S. (1995) 33 Cal.App.4th
185, 187 [39 Cal.Rptr.2d 672] [open pole barn is not a building]; see People v.
Knight (1988) 204 Cal.App.3d 1420, 1423-1424 [252 Cal.Rptr. 17] [electric
company’s “gang box,” a container large enough to hold people, is not a building;
such property is protected by Penal Code sections governing theft].)
Outer Boundary
A building’s outer boundary includes any element that encloses an area into which a
reasonable person would believe that a member of the general public could not pass
without authorization. Under this test, a window screen is part of the outer boundary
of a building for purposes of burglary. (People v. Valencia (2002) 28 Cal.4th 1,
12-13 [120 Cal.Rptr.2d 131, 46 P.3d 920].) Whether penetration into an area behind
a window screen amounts to an entry of a building within the meaning of the
burglary statute is a question of law. The instructions must resolve such a legal issue
for the jury. (Id. at p. 16.)
Attached Residential Balconies
An attached residential balcony is part of an inhabited dwelling. (People v. Jackson
(2010) 190 Cal.App.4th 918, 924-925 [118 Cal.Rptr.3d 623] [balcony was
“functionally interconnected to and immediately contiguous to . . . [part of] the
apartment . . . used for ‘residential activities’ ”]; but see dictum in People v.
Valencia (2002) 28 Cal.4th 1, 11, fn. 5 [120 Cal.Rptr.2d 131, 46 P.3d 920]
[“unenclosed balcony” is not structure satisfying “reasonable belief test”].)
Theft
Any one of the different theories of theft will satisfy the larcenous intent required
for burglary. (People v. Dingle (1985) 174 Cal.App.3d 21, 29-30 [219 Cal.Rptr.
707] [entry into building to use person’s telephone fraudulently]; People v. Nguyen
(1995) 40 Cal.App.4th 28, 30-31 [46 Cal.Rptr.2d 840].)
Burglarizing One’s Own Home - Possessory Interest
A person cannot burglarize his or her own home as long as he or she has an
unconditional possessory right of entry. (People v. Gauze (1975) 15 Cal.3d 709, 714
[125 Cal.Rptr. 773, 542 P.2d 1365].) However, a family member who has moved out
of the family home commits burglary if he or she makes an unauthorized entry with
a felonious intent, since he or she has no claim of a right to enter that residence. (In
re Richard M. (1988) 205 Cal.App.3d 7, 15-16 [252 Cal.Rptr. 36] [defendant, who
lived at youth rehabilitation center, properly convicted of burglary for entering his
parent’s home and taking property]; People v. Davenport (1990) 219 Cal.App.3d
885, 889-893 [268 Cal.Rptr. 501] [defendant convicted of burglarizing cabin owned
and occupied by his estranged wife and her parents]; People v. Sears (1965) 62
Cal.2d 737, 746 [44 Cal.Rptr. 330, 401 P.2d 938], overruled on other grounds by
People v. Cahill (1993) 5 Cal.4th 478, 494, 510 [20 Cal.Rptr.2d 582, 853 P.2d 1037]
[burglary conviction proper where husband had moved out of family home three
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weeks before and had no right to enter without permission]; compare Fortes v.
Municipal Court (1980) 113 Cal.App.3d 704, 712-714 [170 Cal.Rptr. 292] [husband
had unconditional possessory interest in jointly owned home; his access to the house
was not limited and strictly permissive, as in Sears].)
Consent
While lack of consent is not an element of burglary, consent by the owner or
occupant of property may constitute a defense to burglary. (People v. Sherow (2011)
196 Cal.App.4th 1296, 1302 [128 Cal.Rptr.3d 255]; People v. Felix (1994) 23
Cal.App.4th 1385, 1397-1398 [28 Cal.Rptr.2d 860]; People v. Superior Court
(Granillo) (1988) 205 Cal.App.3d 1478, 1485 [253 Cal.Rptr. 316] [when an
undercover officer invites a potential buyer of stolen property into his warehouse of
stolen goods, in order to catch would-be buyers, no burglary occurred].) The consent
must be express and clear; the owner/occupant must both expressly permit the
person to enter and know of the felonious or larcenous intent of the invitee. (People
v. Felix (1994) 23 Cal.App.4th 1385, 1397-1398 [28 Cal.Rptr.2d 860].) A person
who enters for a felonious purpose, however, may be found guilty of burglary even
if he or she enters with the owners or occupant’s consent. (People v. Frye (1998)
18 Cal.4th 894, 954 [77 Cal.Rptr.2d 25, 959 P.2d 183] [no evidence of
unconditional possessory right to enter].) A joint property owner/occupant cannot
give consent to a third party to enter and commit a felony on the other
owner/occupant. (People v. Clayton (1998) 65 Cal.App.4th 418, 420-423 [76
Cal.Rptr.2d 536] [husband’s consent did not preclude a burglary conviction based
upon defendant’s entry of premises with the intent to murder wife].) The defense of
consent is established when the evidence raises a reasonable doubt of consent by the
owner or occupant. (People v. Sherow (2011) 196 Cal.App.4th 1296, 1309 [128
Cal.Rptr.3d 255]).
Entry by Instrument
When an entry is made by an instrument, a burglary occurs if the instrument passes
the boundary of the building and if the entry is the type that the burglary statute
intended to prohibit. (People v. Davis (1998) 18 Cal.4th 712, 717-722 [76
Cal.Rptr.2d 770, 958 P.2d 1083] [placing forged check in chute of walk-up window
of check-cashing facility was not entry for purposes of burglary] disapproving of
People v. Ravenscroft (1988) 198 Cal.App.3d 639, 643-644 [243 Cal.Rptr. 827]
[insertion of ATM card into machine was burglary].)
Multiple Convictions
Courts have adopted different tests for multi-entry burglary cases. In In re William
S. (1989) 208 Cal.App.3d 313, 316-318 [256 Cal.Rptr. 64], the court analogized
burglary to sex crimes and adopted the following test formulated in People v.
Hammon (1987) 191 Cal.App.3d 1084, 1099 [236 Cal.Rptr. 822] [multiple
penetration case]: ‘[W]hen there is a pause . . . sufficient to give defendant a
reasonable opportunity to reflect upon his conduct, and the [action by the defendant]
is nevertheless renewed, a new and separate crime is committed.’ (In re William
S.,supra, 208 Cal.App.3d at p. 317.) The court in In re William S. adopted this test
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because it was concerned that under certain circumstances, allowing separate
convictions for every entry could produce “absurd results.” The court gave this
example: where “a thief reaches into a window twice attempting, unsuccessfully, to
steal the same potted geranium, he could potentially be convicted of two separate
counts.” (Ibid.) The In re William S. test has been called into serious doubt by
People v. Harrison (1989) 48 Cal.3d 321, 332-334 [256 Cal.Rptr. 401, 768 P.2d
1078], which disapproved of Hammon.Harrison held that for sex crimes each
penetration equals a new offense. (People v. Harrison, supra, 48 Cal.3d at p. 329.)
The court in People v. Washington (1996) 50 Cal.App.4th 568 [57 Cal.Rptr.2d 774],
a burglary case, agreed with In re William S. to the extent that burglary is analogous
to crimes of sexual penetration. Following Harrison, the court held that each
separate entry into a building or structure with the requisite intent is a burglary even
if multiple entries are made into the same building or as part of the same plan.
(People v. Washington,supra, 50 Cal.App.4th at pp. 574-579; see also 2 Witkin and
Epstein, Cal. Criminal Law (2d. ed. 1999 Supp.) “Multiple Entries,” § 662A, p. 38.)
The court further stated that any “concern about absurd results are [sic] better
resolved under [Penal Code] section 654, which limits the punishment for separate
offenses committed during a single transaction, than by [adopting] a rule that, in
effect, creates the new crime of continuous burglary.” (People v. Washington,supra,
50 Cal.App.4th at p. 578.)
Room
Penal Code section 459 includes “room” as one of the areas that may be entered for
purposes of burglary. (Pen. Code, § 459.) An area within a building or structure is
considered a room if there is some designated boundary, such as a partition or
counter, separating it from the rest of the building. It is not necessary for the walls
or partition to touch the ceiling of the building. (People v. Mackabee (1989) 214
Cal.App.3d 1250, 1257-1258 [263 Cal.Rptr. 183] [office area set off by counters
was a room for purposes of burglary].) Each unit within a structure may constitute a
separate “room” for which a defendant can be convicted on separate counts of
burglary. (People v. O’Keefe (1990) 222 Cal.App.3d 517, 521 [271 Cal.Rptr. 769]
[individual dormitory rooms]; People v. Church (1989) 215 Cal.App.3d 1151, 1159
[264 Cal.Rptr. 49] [separate business offices in same building].)
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 entry into the
house. (People v. Sparks (2002) 28 Cal.4th 71, 86-87 [120 Cal.Rptr.2d 508, 47 P.3d
289] [“the unadorned word ‘room’ in section 459 reasonably must be given its
ordinary meaning”]; see People v. McCormack (1991) 234 Cal.App.3d 253, 255-257
[285 Cal.Rptr. 504]; People v. Young (1884) 65 Cal. 225, 226 [3 P. 813].) However,
entry into multiple rooms within one apartment or house cannot support multiple
burglary convictions unless it is established that each room is a separate dwelling
space, whose occupant has a separate, reasonable expectation of privacy. (People v.
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Richardson (2004) 117 Cal.App.4th 570, 575 [11 Cal.Rptr.3d 802]; see also People
v. Thomas (1991) 235 Cal.App.3d 899, 906, fn. 2 [1 Cal.Rptr.2d 434].)
Temporal or Physical Proximity - Intent to Commit the Felony
According to some cases, a burglary occurs “if the intent at the time of entry is to
commit the offense in the immediate vicinity of the place entered by defendant; if
the entry is made as a means of facilitating the commission of the theft or felony;
and if the two places are so closely connected that intent and consummation of the
crime would constitute a single and practically continuous transaction.” (People v.
Wright (1962) 206 Cal.App.2d 184, 191 [23 Cal.Rptr. 734] [defendant entered office
with intent to steal tires from attached open-air shed].) This test was followed in
People v. Nance (1972) 25 Cal.App.3d 925, 931-932 [102 Cal.Rptr. 266] [defendant
entered a gas station to turn on outside pumps in order to steal gas]; People v.
Nunley (1985) 168 Cal.App.3d 225, 230-232 [214 Cal.Rptr. 82] [defendant entered
lobby of apartment building, intending to burglarize one of the units]; and People v.
Ortega (1992) 11 Cal.App.4th 691, 695-696 [14 Cal.Rptr.2d 246] [defendant
entered a home to facilitate the crime of extortion].
However, in People v. Kwok (1998) 63 Cal.App.4th 1236 [75 Cal.Rptr.2d 40], the
court applied a less restrictive test, focusing on just the facilitation factor. A burglary
is committed if the defendant enters a building in order to facilitate commission of
theft or a felony. The defendant need not intend to commit the target crime in the
same building or on the same occasion as the entry. (People v. Kwok,supra, 63
Cal.App.4th at pp. 1246-1248 [defendant entered building to copy a key in order to
facilitate later assault on victim].) The court commented that “the ‘continuous
transaction test’ and the ‘immediate vicinity test’ . . . are artifacts of the particular
factual contexts of Wright,Nance, and Nunley.” (Id. at p. 1247.) With regards to the
Ortega case, the Kwok court noted that even though the Ortega court “purported to
rely on the ‘continuous transaction’ factor of Wright, [the decision] rested principally
on the ‘facilitation’ factor.” (Id. at pp. 1247-1248.) While Kwok and Ortega
dispensed with the elemental requirements of spatial and temporal proximity, they
did so only where the subject entry is “closely connected” with, and is made in
order to facilitate, the intended crime. (People v. Griffın (2001) 90 Cal.App.4th 741,
749 [109 Cal.Rptr.2d 273].)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, §§ 128-129.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.10 (Matthew Bender).
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