Criminal Law Feeney Fall 2017
Burglary (Crime that protects possession)
Common Law
Elements of burglary:
1. Breaking
2. Entering
3. Dwelling House
4. Of another
5. In the nighttime
6. With intent to commit a felony
1. BREAKING
Breaking (Separate element from entry)
If any part of D’s body or an instrument enters
Creation of an opening for entry
Closed/protected barrier (even if unlocked)
Opening must be created by burglar (law won’t protect those that don’t protect themselves)
Opening a closed window/door regardless of the amount of force used. (New Jersey v. Wilson)
Pushing open an ajar portal to gain access is not breaking
Specifically:
Constructive Breaking: Intruder tricks, threatens, intimidates, or frauds a dweller to gain admittance.
Entering by trick/deception is breaking.
Crossing into a screened gazebo within a curtilage
Common law protects buildings within curtilage
Using a key in an unauthorized manner (employee who has limited access using authorized key during unauthorized times) – Washington v. Corcoran
Must be proven that they entered at a time restricted to their use.
If general access, then no breaking.
Opening any interior thing that is affixed to the building is breaking, e.g. interior door; drawer to something affixed to the building.
Landlord entering to collect rent – crime against possession, not ownership.
Breaking must precede entry (no breaking if enters lawfully and breaks out).
Breaking must be to gain entry. Not burglary to hide in a dwelling, with intent to commit felony and then break to get out of dwelling.
Common law protects protective barrier of the house
If enters lawfully, but opens door to bedroom with jewelry, then breaking.
If dresser is built into the wall, then breaking
If loose, not breaking
If inside a ring box, opening box is not breaking (not part of the dwelling)
If it is in a cabinet, then it’s attached to the wall (and property) so it’s breaking bc it’s a protective barrier.
Requires a trespass. If D had consent to enter, his use of force to gain entry is not a breaking. (If consent to enter is through fraud then constructive breaking.)
NOT breaking:
Consensual entry: no breaking when intruder invited into the house (assuming didn’t stray into a portion of the house where he had not been invited).
Entrance with door or window slightly opened (further opening is owner’s negligence)
Authorized breaking (must have trespass).
Intruder didn’t break to gain access, but broke when leaving after committing felony
Unlatching gate to a curtilage
Walking through revolving doors of Macy’s (general public is welcome)
2. ENTERING (Breaking → Entry)
Defined:
Any intrusion of the body, no matter how minor
Entry where instrument facilitates the felony = entry
Ex: bullet shot through window for killing
Ex: rock thrown through the window to KILL someone.
Specifically:
Servant entering master’s house after working hours.
Any crossing of a closed surface – disturbance of outer shell
C. Penetration behind a window screen even if the window itself is closed is entry. Use the reasonable expectation-test to determine whether a reasonable person would believe a person needed authorization to pass beyond a point.
Not Entry:
Entry where instrument facilitates only the breaking and not the entry
Ex: screwdriver used to pop open window
Shattering glass in window with a rock
Even though it breaks the plane, the rock doesn’t carry out crime
Walking into an open store.
3. DWELLING HOUSE- used regularly for sleeping purposes
Defined:
Homes even if occupants are temporarily absent
All buildings within curtilage (land or yard adjoining a house usually within an enclosure)
Not businesses unless owner or employee sleeps there.
Specifically:
Temporarily unoccupied house; dwellers need not be present at time of entry
Dorm room for students
Structure part of an inhabited building: 2 criteria (California v. Rodriguez)
Contiguous to house
Functionally interconnected to house
Apply reasonable expectation test
Buildings within curtilage included
A building requires a roof and four walls
Screened gazebo (has four walls, so it’s a building)
NOT Dwelling House
Hotel room (unless innkeeper lives there)
Temporary habitation is not sufficient
Stores
Buildings not yet occupied or abandoned or recently erected, even if they are intended for habitation (Woods v. Mississippi)
4. OF ANOTHER
Protects possession, not ownership: Landlord = “Of Another” if there’s a tenant
A. An owner can commit burglary of his own structure if it is rented and used as a dwelling by others.
Can’t burglarize your own house
B. Roommate isn’t guilty for burglary for st
Any penetration of protective shell or house
Intrusion of any body part into dwelling is entering.
Entry with intent (shopping store, Macys)
Slipping through/further opening an ajar door
Entry during unauthorized hours using an authorized key where access is limited.
Entry by any instrument, doesn’t need to facilitate the crime.
Sticking a screwdriver into the airspace between a screen and a closed window. Instruments seen as extension of the body.
Not Entry
Placement of a forged check in the chute of the walk-up window of the check-cashing facility.
If authorized (invited over)
Unlawful entry with required intent is burglary.
Modern law – intent to commit simple assault, then still don’t satisfy felony. Line between aggravated assault and simple assault is fuzzy but if there are broken bones, stitches, then aggravated assault and then even in some instances without.
2. PROTECTED STRUCTURE
Greatly expanded under modern law: rail cars, locked cars, etc
ATM machine, but not within intent of legislature.
3. WITH INTENT TO COMMIT A FELONY (or petit/grand larceny)
Needs to be intent to commit a theft or felony.
Doesn’t matter if burglar changes his mind after entry.
If unlawful entry with intent, this completes the crime of burglary.
Circumstantial evidence can be used to interpret intent. Evidence of a theft of property may permit a reasonable inference that there was such intent to commit theft at the time of entry.
NOT incidental utility use.
Cal Penal Code § 459 – Burglary Defined
Entry
Wide array of items listed: house, apartment room, warehouse, barn, store, automobile (if doors locked), locked/sealed cargo container, etc.
With intent to commit
Grand theft, Petit larceny,or any felony
Inhabited means used for dwelling purposes whether occupied or not.
House is occupied for dwelling if vacated because of natural disaster.
Cal Penal Code § 460 – Degrees of Burglary
Burglary of inhabited dwelling place is first degree
All others are second degree
Cal Penal Code §461 – Punishment for Burglary
1st Degree: State Prison 2, 4 or 6.
2nd Degree: county jail or state prison not exceeding 1 year.
