BILL ANALYSIS                                                                                                                                                                                                    



                                                          AB 476  
                                                         Page 1

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.








                                                          AB 476 
                                                         Page 2

    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. 







                                                          AB 476  
                                                         Page 3


    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  







                                                          AB 476  
                                                         Page 4

       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  







                                                          AB 476  
                                                         Page 5

    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