People v. Hulderman

In People v. Hulderman (1976) 64 Cal.App.3d 375, in which the implication is clear that in the proper evidentiary posture of a burglary case a violation of section 602.5 can be a lesser included offense. The court held that there was no error in failing sua sponte to give an instruction on the lesser included offense of the unauthorized entry not because, as urged by appellant herein, a violation of section 602.5 cannot be a lesser included offense in burglary, but on the ground the evidence of the burglary did not support it. "Other than the inference thus raised that an occupant does not consent to entry of another to his home for the purpose of committing larceny there is no evidence defendant entered the trailer without the consent of the owner, his agent or the occupant. In the event the jury did not accept the evidence establishing defendant's entry was with intent to commit larceny as proof of his intent, there is no evidence he was in the trailer without consent. Thus, under the evidence the defendant was guilty of burglary as charged or was not guilty of any offense. Under these circumstances the failure to give an instruction on the alleged lesser-included offense of unlawful entry was not error ." (64 Cal.App.3d at p. 379.)