California Penal Code Section 459 Case Law

Penal Code Section 459 states in pertinent part: "Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building . . . with intent to commit grand or petit larceny or any felony is guilty of burglary. . . ." Common law burglary sought to protect the peace of mind and security of residents so that they could enjoy their home without intrusion because, at common law, "a person's home was truly his castle." (People v. Gauze (1975) 15 Cal.3d 709, 712,; see also People v. Rodriguez (2000) 77 Cal.App.4th 1101, 1106.) Indeed, by maintaining the distinction between an inhabited and an uninhabited dwelling, the current burglary statutes ( 460, 461) continue to provide increased protection for the privacy and enjoyment of one's home. (Rodriguez, at p. 1106.) ". . . 'Burglary laws are based primarily upon a recognition of the dangers to personal safety created by the usual burglary situation -- the danger that the intruder will harm the occupants in attempting to perpetrate the intended crime or to escape and the danger that the occupants will in anger or panic react violently to the invasion, thereby inviting more violence. The laws are primarily designed, then, not to deter the trespass and the intended crime, which are prohibited by other laws, so much as to forestall the germination of a situation dangerous to personal safety.' Section 459, in short, is aimed at the danger caused by the unauthorized entry itself." (People v. Gauze, supra, 15 Cal.3d at p. 715; see also People v. Davis (1998) 18 Cal.4th 712, 721; People v. Valencia (2002) 28 Cal.4th 1, 7.) While the Penal Code has substantially changed some of the common law elements of burglary, our Supreme Court has held that "two important aspects of that crime" remain: the entry must invade a possessory right in the building, and it must be committed by one who has no right to be in the building. (People v. Gauze, supra, 15 Cal.3d at p. 714; see also People v. Pendleton (1979) 25 Cal.3d 371, 382, 158 Cal. Rptr. 343.) Because the crime of burglary requires the invasion of a possessory right in a building, one cannot be found guilty of burglarizing one's own residence. (Gauze, at p. 714.) Similarly, one who enters a building with the intent to commit a felony therein is guilty of burglary except when he or she "(1) has an unconditional possessory right to enter as the occupant of that structure or (2) is invited in by the occupant who knows of and endorses the felonious intent." (People v. Salemme (1992) 2 Cal.App.4th 775, 781.) In Gauze our Supreme Court held the defendant could not be convicted of burglary for entering his own apartment to shoot his roommate. The court explained: "His entry into the apartment, even for a felonious purpose, invaded no possessory right of habitation; only the entry of an intruder could have done so. More importantly, defendant had an absolute right to enter the apartment. This right, unlike the store thief in People v. Barry (1892) 94 Cal. 481, did not derive from an implied invitation to the public to enter for legal purposes. It was a personal right that could not be conditioned on the consent of defendant's roommates." (People v. Gauze, supra, 15 Cal.3d at p. 714.) In People v. Frye (1998) 18 Cal.4th 894, the defendant argued there was insufficient evidence of burglary because he entered the cabin with the owner's consent. The Supreme Court rejected this contention, finding a burglary conviction may be proper even when there has been consensual entry. "'The law after Gauze is that one may be convicted of burglary even if he enters with consent, provided he does not have an unconditional possessory right to enter.' " (Id. at p. 954.)