BILL ANALYSIS
AB 476
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Date of Hearing: April 8, 1997
Chief Counsel: Judith M. Garvey
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Robert M. Hertzberg, Chair
AB 476 (Kuykendall) - As Introduced: February 24, 1997
ISSUES : I. SHOULD THE CRIME OF BURGLARY BE EXPANDED TO COVER
ENTRIES INTO UNLOCKED VEHICLES?
II. SHOULD THE COMMITTEE ADOPT THE ALTERNATIVE PROPOSAL
ATTACHED TO THIS ANALYSIS?
SUMMARY : Expands the definition of burglary to cover entry into
any vehicle, whether or not the doors are locked, to commit a
felony or theft.
EXISTING LAW :
1) Provides that every person who enters into specified
structures, including a locked vehicle, with the intent to
commit theft or a felony is guilty of burglary. (Penal Code
Section 459.)
2) Provides that every burglary of a dwelling type structure is
first-degree burglary punishable by two, four, or six years in
state prison. Every other form of burglary is of the second
degree punishable by imprisonment in the state prison of 16
months, two or three years or in the county jail up to one
year. (Penal Code Sections 460 and 461.)
3) Mandates numerous collateral consequences upon conviction of
burglary.
COMMENTS :
1) Author's Statement . According to the author, "Burglary is
burglary whether or not the car doors are locked. Personal
property has been removed or the attempt to do so has been made.
California law should be updated to reflect this simple fact. AB
476 closes the loophole relating to vehicle burglary.
2) Burglary . Since common law England, burglary has been a
hybrid crime that protects persons from danger to their
persons within buildings and the protection of possessor
rights. ( People v. Themes (1991) 235 Cal.App.3d 899, 906.)
Burglary laws are designed to protect persons within places
from an escalation of violence from a premeditated entry. As
such, entry into a structure with the intent to kill someone
is burglary even though it might not otherwise rise to the
level of attempted murder.
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In California, the crime of burglary involves the entry of
designated premises (including a room) with the intent to
commit a felony or theft therein. No trespass or
non-consensual entry is required to commit the offense. One
may be convicted of burglary, even if the person enters
with consent, provided that he or she does not have an
unconditional possessory right to enter. ( In re Andrew I. (1991)
230 Cal.App.3d 572, 577-579.)
The crime is complete once the entry occurs with the specified
intent. ( People v. Morelock , (1956) 46 Cal.2d 141, 146.) This is
true whether or not the intended offense is actually committed.
( People v. Walters (1967) 249 Cal.App.2d 547, 550.) There are
distinct rules for determining whether a burglary is "in progress"
for purposes of enhancement and other rules. (See People v. Mixon
(1990) 225 Cal.App.3d 1471, 1488.)
3) Coverage of Burglary Statute .
a) History . As enacted in 1872, the burglary statute covered
entries into houses, rooms, apartments, tenements, shops,
warehouses, stores, mills, barns, stables, tents, vessels,
or railroad cars. In 1913, mines were added to the
protected list.
b) Vehicles and Aircraft . In 1947, the Legislature expanded
the burglary statute to cover entries into trailer coaches,
aircraft and locked vehicles. In 1977, entries into house
cars and inhabited campers were covered as well. In 1984,
locked or sealed cargo containers were added to the
statute.
4) Case Law as to Vehicles .
a) Where forced entry is required . In the case of an
ordinary vehicle, the doors of the vehicle must be locked
which requires proof of a forced entry or the use of a tool
to open the door. ( In re Lamont R. , (1988) 200 Cal.App.3d
244, 246-249.)
b) Where forced entry is not required . Proof that the
vehicle is locked is not required for the following forms
of vehicles which are used for business or dwelling type
arrangement, as was noted in People v. Trimble , (1993) 16
Cal.App.4th 1255, 1258-1261:
i. Trailer coaches: A trailer coach is a vehicle that
is not a motor vehicle designed for human habitation or
human occupancy for industrial, professional, or commercial
purposes.
ii. Inhabited campers: An inhabited camper is the shell
that is typically placed on a pickup truck.
iii. House cars: A recreational vehicle/motor home is
considered a house car.
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c) Theft of the vehicle as burglary . Where the entry into
the vehicle is to steal the vehicle itself, that
constitutes burglary. ( People v. Teamer (1992) 20
Cal.App.4th 1454, 1458-1462 (extensive discussion).)
7) Proof Problems . Where property is stolen from a vehicle and
there is no overt sign of forced entry, it can be very
difficult to prove a burglary violation.
8) AB 476 . This bill deletes the requirement of forced entry in
the case of burglary of any motor vehicle.
9) Collateral Consequences . There are collateral consequences of
expanding the definition of burglary. Staff conducted a
computer check through the Legislative Inquiry system on the
term "burglary" and "Penal Code Section 459".
A review of those references showed the broad impact of this
bill. Among them were:
a) Expansion of the felony murder rule and the death penalty .
The first-degree felony murder rule provides that a killing
of a non-participant in a felony during the commission or
attempted commission of a list of enumerated felonies
constitutes first-degree murder. Burglary is an offense
set forth in the first-degree felony murder rule. The
punishment for first-degree murder without special
circumstances is 25 years to life.
Penalties for a defendant found guilty of murder in the
first degree shall be death or confinement in the state
prison for a term of life without the possibility of parole
when one or more of 19 enumerated special circumstances has
been charged and found to be true by the trier of fact.
All first-degree felony murders are special circumstances.
As such this bill expands the conduct eligible for the
death penalty. This is may raise constitutional concerns.
It was an issue that was extensively argued in People v.
Fuller (1978) 86 Cal.App.3d 618.
Should death resulting from entry into an unlocked vehicle
potentially result in the imposition of the death penalty?
Is that proportionate?
b) Probation denial . A number of statutes preclude the
ability to gain probation based on a current or prior
conviction of "burglary".
c) "One-strike rape" statute . The so-called one-strike rape
statute comes into play when when one is convicted of
"burglary" and an associated sex offense.
d) Petty theft with a prior . Where a person has been
convicted of enumerated offenses, serves jail time
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therefore, and then commits a theft, that offense is an
alternate felony/misdemeanor. The effect of that is to
invoke the three strikes law.
10) Alternative Proposal - New Offense .
a) Overview . An alternative proposal that would meet the
concern over proving a forced breaking into the vehicle and
at the same time providing the same penalty is to create a
new offense of unlawful entry under Penal Code Section 465.
This proposal meets the author's concerns without raising
the "red flags" referred to in Comment 9.
The offense would cover entering into any cargo container,
whether or not mounted on a vehicle, camper, as defined in
Section 243 of the Vehicle Code, or a vehicle as defined by
the Vehicle Code with intent to commit a theft therein.
b) Coin machines . As this bill moves, the author may wish to
investigate whether there is a related issue regarding
breaking into a coin-operated machine with the intent to
commit a theft.
Has there been jury reluctance in gaining jury convictions
for breaking into coin machines in public, open-air
facilities during business hours? Do juries feel that such
conduct rises to burglary where the coin machine is broken
into in a public place during business hours? Have there
been have acquittals of persons of breaking into BART
machines who have been charged with "burglary"?
c) Coin Machine Penalty . The solution may be to amend Section
458 to include a "coin-operated machine". The penalty for
unlawful entry would still be set as an alternate
felony/misdemeanor.
d) Collateral consequences . Under the alternative, prior
felony violations of Section 465 would invoke petty theft
with a prior offense. A mockup that reflects the
alternative proposal for unlocked vehicles is attached.
ARGUMENT IN SUPPORT . The Attorney General points out the
following problems in existing law:
1) Officers investigated a case of vehicle burglary where money
and camera equipment were removed from the interior of a
foreign manufactured vehicle. Officers recovered
fingerprints from the console near the area where a purse,
which contained the missing money, had been located.
Detectives identified a suspect from the latent prints that
were recovered, but the case was dismissed. Although the
victim testified that the doors were locked, the victim
could not prove to the court's satisfaction that the doors
were locked. No charges were brought against the suspect
because the court ruled that it could not be disproved that
someone else may have entered and removed the articles prior
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to the defendant entering the vehicle. Detectives said that
some foreign makes are locked when the door is not
completely closed but becomes unlocked when the doors are
shut the rest of the way.
2) Another example of the problem with existing law is a
vehicle's window is smashed to allow entry and access to its
contents. The suspect does not enter the vehicle
immediately for fear that the vehicle may be alarmed but
conceals himself a distance away for a period of time. The
suspect returns to the vehicle when satisfied it is safe to
do so and completes the crime of burglary. An arrest is
made and the victim testifies that he/she believes the car
was locked. Under cross-examination, the attorney for the
defense asks if at any time the victim thought his/her
vehicle was locked only to discover that it was unlocked.
The defense follows-up with the question, "Is it possible
that the vehicle was unlocked?" The victim could only
truthfully answer "yes" its a possibility.
ARGUMENT IN OPPOSITION . The California Public Defenders
Association (CPDA) believes that an ordinary car is not a home
and should not be given the same protective status. The locking
requirement is important because it shows the intent of the
perpetrator to break into the car. The CPDA also believes that
this would be a very high-cost issue because lawyers will not
plead a client to a felony when the issue of intent would be so
defensible. For example, the defense will argue that the client
"opened the door to sit down, get out of the wind, light a
cigarette, go for a joy ride, get away from someone following
him or her, etc. The law would not deter the serious burglar
and would only set up the juvenile or novice offender for a
felony.
REGISTERED SUPPORT/OPPOSITION :
Support
Office of the Attorney General
California District Attorneys Association
Doris Tate Crime Victims Bureau
California State Sheriff's Association
Opposition
California Attorneys for Criminal Justice
California Public Defenders Association
Analysis prepared by : Judith M. Garvey / apubs / (916) 445-3268