California Penal Code Section 459 - Example Case

"Under Penal Code section 459, a person is guilty of burglary if he or she enters any building (or other listed structure) with the intent to commit larceny or any felony." (People v. Davis (1998) 18 Cal.4th 712, 715 (Davis).) It has long "been established that a burglary . . . can be committed by using an instrument to enter a building." (Id. at p. 716.) In Davis, the court held: "Inserting a stolen ATM card into an ATM, or placing a forged check in a chute in the window of a check-cashing facility, is not using an instrument to effect an entry within the meaning of the burglary statute. Neither act violates the occupant's possessory interest in the building as does using a tool to reach into a building and remove property. It is true that the intended result in each instance is larceny. But the use of a tool to enter a building, whether as a prelude to a physical entry or to remove property or commit a felony, breaches the occupant's possessory interest in the building. Inserting an ATM card or presenting a forged check does not. Such acts are no different, for purposes of the burglary statute, from mailing a forged check to a bank or check-cashing facility." (Davis, supra, 18 Cal.4th at p. 722.)