People v. Gauze

• Decision Date: 12 December 1975
• Docket Number: Cr. 18482
• Citation: 542 P.2d 1365,125 Cal.Rptr. 773,15 Cal.3d 709
• Parties: , 542 P.2d 1365 The PEOPLE, Plaintiff and Respondent, v. James Matthew GAUZE, Defendant and Appellant. . In Bank
• Court: California Supreme Court

Page 773

125 Cal.Rptr. 773

15 Cal.3d 709, 542 P.2d 1365

The PEOPLE, Plaintiff and Respondent, v. James Matthew GAUZE, Defendant and Appellant.

Cr. 18482.

Supreme Court of California In Bank.

Dec. 12, 1975.

Paul Bell, San Diego, under appointment by the Supreme Court, 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.

MOSK, Justice.

Can a person burglarize his own home? That is the quandary which emerges in the case of James Matthew Gauze, who appeals from a judgment of conviction of assault with a deadly weapon (Pen.Code, § 245, subd. (a)) and burglary (Pen.Code, § 459).

Defendant shared an apartment with Richard Miller and a third person and thus had the right to enter the premises at all times. While visiting a friend one afternoon, defendant and Miller engaged in a furious quarrel. Defendant directed Miller to 'Get your gun because I am going to get mine.' While Miller went to their mutual home, defendant borrowed a shotgun from a neighbor. He returned to his apartment, walked into the living room, pointed the gun at Miller and fired, hitting him in the side and arm. Defendant was convicted of assault with a deadly weapon and burglary; the latter charge was predicated on his entry into his own apartment with the intent to commit the assault.

Common law burglary was generally defined as 'the breaking and entering of the dwelling Of another in the nighttime with intent to commit a felony.' (Italics added.) (Perkins on Criminal Law (2d ed. 1969) p. 192.) The present burglary statute, Penal Code section 459, provides in relevant part that 'Every person who enters Any house, room, apartment . . . with intent to commit grand or petit larceny or any felony is guilty of burglary.' (Italics added.)

Facially the statute is susceptible of two rational interpretations. On the one hand, it could be argued that the Legislature deliberately revoked the common law rule that burglary requires entry into the building of another. ¹ On the other hand, the Legislature may have impliedly incorporated the common law requirement by failing to enumerate one's own home as a possible object of burglary. (Comment, Burglary: Punishment Without Justification 1970 Ill.L.Rev. 391, 397.) No cases directly on point have been found. ² Therefore, in determining which statutory interpretation should be adopted it is necessary to examine the purposes underlying common law burglary and how they may have been affected by the enactment of the Penal Code.

Common law burglary was essentially an offense 'against habitation and occupancy.' (Perkins, Op. cit. supra, p. 192.) By proscribing felonious nighttime entry into a dwelling house, the common law clearly sought to protect the right to peacefully enjoy one's own home free of invasion. In the law of burglary, in short, a person's home was truly his castle. (2 Blackstone, Commentaries (Jones ed. 1916) § 258, p. 2430.) It was clear under common law that one could not be convicted of burglary for entering his Own home with felonious intent. This rule applied not only to sole owners of homes, but also to joint occupants. (Clarke v. Commonwealth (1874) 66 Va. 908; Perkins, Op. cit. supra, p. 206.) The important factor was occupancy, rather than ownership.

California codified the law of burglary in 1850. (Stats.1850, ch. 99, § 58, p. 235.) That statute and subsequent revisions and amendments preserved the spirit of the common law, while making two major changes. First, the statute greatly expanded the type of buildings protected by burglary sanctions. Not only is a person's home his castle under the statute, but so, inter alia, are his shop, tent, airplane, and outhouse. (See fn. 1, Ante.) This evolution, combined with elimination of the requirement that the crime be committed at night, signifies that the law is no longer limited to safeguarding occupancy rights. However, by carefully delineating the type of structures encompassed under section 459, the Legislature has preserved the concept that burglary law is designed to protect a possessory right in property, rather than broadly to preserve any place from all crime.

The second major change effected by codification of the burglary law was the elimination of the requirement of a 'breaking': under the statute, every person who enters with felonious intent is a burglar. This means, at a minimum, that it no longer matters whether a person entering a house with larcenous or felonious intent does so through a closed door, an open door or a window. ³ The entry with the requisite intent constitutes the burglary.

The elimination of the breaking requirement was further interpreted in People v. Barry (1892) 94 Cal. 481, 29 P. 1026, to mean that trespassory entry was no longer a necessary element of burglary. In Barry, this court held a person could be convicted of burglary of a store even though he entered during regular business hours. A long line of cases has followed the Barry holding. (See, e.g., People v. Deptula (1962) 58 Cal.2d 225, 228, 23 Cal.Rptr. 366, 373 P.2d 430; People v. Brittain (1904) 142 Cal. 8, 75 P.2d 314; People v. Edwards (1972) 22 Cal.App.3d 598, 602, 99 Cal.Rptr. 516; People v. Garrow (1955) 130 Cal.App.2d 75, 83, 278 P.2d 475.)

Barry and its progeny should not be read, however, to hold that a defendant's right to enter the premises is irrelevant. Indeed, the court in Barry, by negative implication, substantiated the importance of determining the right of an accused to enter premises. When the defendant thief in Barry argued he had a right to be in the store, the court could have replied that his right to enter the store was immaterial. Instead the court declared, 'To this reasoning, we can only say 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.' (Id., 94 Cal. at p. 483, 29 P. at p. 1027.) Thus, the underlying principle of the Barry case is that a person has an implied invitation to enter a store during business hours for legal purposes only. The cases have preserved the common law principle that in order for burglary to occur, 'The entry must be Without consent. If the possessor actually invites the defendant, or actively assists in the entrance, e.g., by opening a door, there is no burglary.' (1 Witkin, Cal. Crimes (1963) Crimes Against Property, § 457, p. 420.) (Italics in original.)

Thus, section 459, while substantially changing common law burglary, has retained two important aspects of that crime. A burglary remains an entry which invades a possessory right in a building. And it still must be committed by a person who has no right to be in the building.

Applying the foregoing reasoning, we conclude that defendant cannot be guilty of burglarizing his own home. 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 that of the store thief in Barry, 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. Defendant could not be 'refused admission at the threshold' of his apartment, or be 'ejected from the premises after the entry was accomplished.' (People v. Barry (1892) supra, 94 Cal. 481, 483, 29 P. 1026, 1027.) He could not, accordingly, commit a burglary in his own home.

The People argue, however, that a contrary conclusion is compelled by a dictum in People v. Sears (1965) 62 Cal.2d 737, 44 Cal.Rptr. 330, 401 P.2d 938. In Sears, defendant was convicted of felony murder. For three years prior to the murder, defendant had slept in a garage nearby the cottage occupied by his wife. Then the spouses separated and defendant moved to a hotel. Three weeks later, he returned to the cottage, looking for his wife and hiding a reinforced steel pipe under his shirt. In an ensuing struggle, he killed his wife's daughter. This court reversed his conviction because a confession was improperly admitted, but for guidance upon retrial we declared valid a felony-murder instruction based on burglary--entering the cottage with intent to assault his wife--as the felony. In answer to defendant's argument that he could not be guilty of burglary because he had a right to enter the house, the court replied, '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. (Citations.) The entry need not constitute a trespass. (Citations.) 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.' (Id. at p. 746, 44 Cal.Rptr. at p. 336, 401 P.2d at p. 944.)

As the above quotation indicates, our opinion that Sears could be convicted of burglary was based on two separate considerations. First, Sears had no right to enter his wife's house; that fact alone supported the conviction. Second, even if he had a right to enter, the right was based on former section 157 of the Civil Code (now § 5102), which gave a person the right to enter the Separate property of his or her spouse, subject to certain conditions. Thus Sears' 'right' to enter his wife's house, like the 'right' of the...