People v. Gauze

• Decision Date: 17 December 1974
• Docket Number: Cr. 6715
• Citation: 118 Cal.Rptr. 220,43 Cal.App.3d 967
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. James Matthew GAUZE, Defendant and Appellant.

Page 220

118 Cal.Rptr. 220

43 Cal.App.3d 967

The PEOPLE of the State of California, Plaintiff and Respondent, v. James Matthew GAUZE, Defendant and Appellant.

Cr. 6715.

Court of Appeal, Fourth District, Division 1, California.

Dec. 17, 1974.

For Opinion on Hearing, see 125 Cal.Rptr. 773, 542 P.2d 1365.

[529 P.2d 221] Appellate Defenders, Inc. by Paul Bell, San Diego, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., A. Wells Petersen and Karl J. Phaler, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

COLOGNE, Associate Justice.

Defendant James Gauze was charged by an information with burglary (Pen.Code § 459) and assault with a deadly weapon (Pen.Code § 245(a)). The information alleged the burglary was (1) committed upon an inhabited building in the nighttime, (2) while armed with a deadly weapon, and (3) a person was assaulted during the commission of the burglary. An allegation of use of a firearm in the commission of the felony (violation of Pen.Code § 12022.5) was also included.

The trial judge declared a doubt as to the sanity of Gauze and appointed psychiatrists to examine him pursuant to Penal Code section 1368. A jury trial on the sanity issue was waived and the court found him sane. After a jury trial on the charges Gauze was found guilty on both counts, each special allegation was found true and the degree on the burglary charge was fixed at first degree. He was sentenced to prison, and the execution of the sentence on the assault count was stayed during service of the sentence on the burglary count. Gauze appeals.

On March 17, 1973, defendant Gauze, Richard Miller and Charles Mosher lived together in an apartment in Chula Vista. At about 4:30 on that afternoon while in the apartment of a friend, Robert Bolton, Miller and Gauze got into an argument. Gauze told Miller, 'Get your gun because I am going to get mine.' Miller left first to return to his apartment and took a shower. Gauze left about an hour and a half later. He went to the home of Mrs. Donna Cox where he borrowed a shotgun and one shell. He then went to his apartment where he found Miller, pointed the gun at him and pulled the trigger. Miller was hit in the side and the left arm. As a result of this incident Miller lost the use of his arm. Gauze then returned the gun to Mrs. Cox and informed her he had shot Miller. She immediately checked the gun's chamber and determined it had been fired.

Gauze contends it was error to find him guilty of burglary when the entry, an essential element of the crime, was of his own dwelling. He asserts there is no authority for the proposition burglary can be committed when someone enters the home in which he is currently living.

At common law, burglary was the breaking and entering of the dwelling house of another, in the nighttime, with the intent to commit some felony within the house, whether the felonious intent be executed or not (People v. Barry, 94 Cal. 481, 482, 29 P. 1026, citing Russell on Crimes, 785). The elements of the offense have been greatly changed by statute. (See 25 S.C.L.R. 75.) At this date Penal Code section 459 reads as follows:

'Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, railroad car, trailer coach as defined by the Vehicle Code, vehicle as defined by said code when the doors of such vehicle are locked, aircraft as defined by the Harbors and Navigation Code, mine or any underground portion thereof, with intent to commit grand or petit larceny or any felony is guilty of burglary.

Since the enactment of the Penal Code, California does not recognize common law crimes but only those defined in a statute, ordinance or regulation (Keeler v. Superior Court, 2 Cal.3d 619, 631-632, 87 Cal.Rptr. 481, 470 P.2d 617; In re Harder, 9 Cal.App.2d 153, 155, 49 P.2d 304; People v. Whipple, 100 Cal.App. 261, 262, 279 P. 1008). The concept of entering the premises 'of another' was conspicuously omitted in California's description of the crime. ¹ Similarly, where there is a requirement there be a 'breaking,' one could not 'break' into a home to which he had a right to enter. It is upon these concepts the common law cases were able to imply not only that someone else dwells there but also that the alleged burglar does not. ² While there is respected secondary authority which indicates the entry must be of a building in possession of another, the only authorities cited are textbooks which speak of common law requisites (1 Witkin, California Crimes, Crimes Against Property, § 457(a), p. 419).

A case clearly in point is People v. Sears, 62 Cal.2d 737, 44 Cal.Rptr. 330, 401 P.2d 938. There the defendant was separated from his wife and had moved from the family residence three weeks earlier. No restraining order was in effect relative to his access to the family home. The family home thus was not necessarily the dwelling 'of another.' The defendant had returned to the house carrying a reinforced steel pipe under his shirt and during the course of an argument struck and killed his daughter and struck his wife and mother-in-law with the pipe. He was found guilty of murder in the first degree and two counts of attempted murder. The conviction was reversed because of the admission of his confession made before he received the Miranda warning. The court, however, discussed the felony-murder (burglary) instruction and stated on retrial the instruction was proper since the jury could infer the requisite intent to commit an assault with a deadly weapon existed when he entered the house. The court then stated in People v. Sears, supra, 62 Cal.2d 737, at page 746, 44 Cal.Rptr. 330, at page 336, 401 P.2d 938, at page 944:

'We reject defendant's contention that the court should not have given the burglary instruction because defendant, as Clara's husband, had a right to enter the family home. One who enters a room or building with the intent to commit a felony is guilty of burglary even though permission to enter has been extended to him personally or as a member of the public. (People v. Deptula (1962) 52 [sic] Cal.2d 225, 228, 23 Cal.Rptr. 366, 373 P.2d 430.) The entry need not constitute a trespass. (People v. Deptula, supra, at 228, 23 Cal.Rptr. 366, 373 P.2d 430; People v. Wilson (1958) 160 Cal.App.2d 606, 608, 325 P.2d 106; People v. Garrow (1955) 130 Cal.App.2d 75, 83, 278 P.2d 475.) Moreover, since defendant had moved out of the family home three weeks prior to the crime, he could claim no right to enter the residence of another without permission. Even if we assume that defendant could properly enter the house for a lawful purpose (cf. Civ.Code, § 157), such an entry still constitutes burglary if accomplished with the intent to commit a felonious assault within it.' (Emphasis added.) ³

No authority contradicts this decisional law in California.

The instant case involves a joint occupancy, by victim and assailant, giving the assailant some right to be in the building where the assault was committed. ⁴ This aspect of the case, however, makes it analogous to the line of cases involving an invitation by a property owner to an employee or by the proprietor of a store to the public for the purpose of conducting lawful business there. (See People v. Deptula, 58 Cal.2d 225, 228, 23 Cal.Rptr. 366, 373 P.2d 430; People v. Barry, supra, 94 Cal. 481, 482, 29 P.1026.)

Consent to enter is often set up as a defense to burglary and we recognize that as an issue since Gauze clearly had consent to enter his own apartment. It could be argued even the victim gave Gauze consent to enter the apartment they shared and that consent would negate criminal liability (see 1 Witkin, California Crimes, Crimes Against Property, § 475(b) and (c), pp. 419-420).

People v. Barry, supra, 94 Cal. 481, 29 P. 1026, was one of the earliest of the cases considering this defense. It involved an entry by the defendant into a store during business hours. The court held the offense was complete on his entry with the requisite intent.

'[C]ommon-law burglary and the statutory burglary of this state have but few elements in common, and consequently English cases give us but little light upon the question under examination. Even under the present section of the Penal Code many acts constitute burglary which but a few years ago were a different offense, or no offense whatever. As to the acts which shall constitute the crime of burglary, that is a matter left entirely to the policy of the legislature within its constitutional powers; and when that body has said that every person who enters a store with the intent to commit larceny is guilty of a burglary, the language is so plain and simple that rules of statutory construction are not required to be consulted; the meaning is patent upon the face of the statute. No words are found in the statute qualifying the character, kind, time, or manner of the entry, save that such entry must be accompanied with a certain intent; and it would be judicial legislation for this court to interpolate other conditions into the section of the Code.' (People v. Barry, supra, 94 Cal. 481, 482-483, 29 P. 1026).

The court rejected the defendant's contention there was consent to enter, hence no burglary, stating:

'[A] party who enters with the intention to commit a felony enters without an invitation. He is not one of the public invited, nor is he entitled to enter. Such a party could be refused admission at the threshold, or ejected from the premises after the entry was accomplished. If the presence of such a party in the store is lawful, the fact that he gained ingress openly and publicly through the front door rather than clandestinely by way of the skylight or the cellar is not material, and the result would be that no burglary could be committed in a store during...