People v. McCormack

• Decision Date: 30 August 1991
• Docket Number: No. C,C
• Citation: 285 Cal.Rptr. 504,234 Cal.App.3d 253
• Parties: The PEOPLE, Plaintiff and Respondent, v. Clayton Gene McCORMACK, Defendant and Appellant. rim. C009375.
• Court: California Court of Appeals Court of Appeals

Page 504

285 Cal.Rptr. 504

234 Cal.App.3d 253

The PEOPLE, Plaintiff and Respondent, v. Clayton Gene McCORMACK, Defendant and Appellant.

No. Crim. C009375.

Court of Appeal, Third District, California.

Aug. 30, 1991.

Review Denied Nov. 27, 1991.

[234 Cal.App.3d 254] Renee L. Berenson, San Mateo, under appointment by the Court of Appeal, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Sr., Asst. Atty. Gen., J. Robert Jibson, Supervising Deputy Atty. Gen., for plaintiff and respondent.

CARR, Associate Justice.

A jury convicted defendant of one count of first-degree burglary. (Pen.Code, § 459.) ¹ The court found true enhancing allegations defendant had suffered two prior serious felony convictions and that he had served three separate prior prison terms. (§§ 667, subd. (a), 667.5, subd. (b).) On appeal defendant asserts the trial court erred in instructing the jury it could convict defendant of burglary if it found he formed the intent to steal after he entered the relevant structure but before he entered the room within the structure from which items were taken. We find no error and affirm.

FACTS

Harry Leivas returned to his brother's house one afternoon and observed a car parked in front of the house. Defendant was sitting in the driver's seat. Some time after Leivas entered the house he heard a knock on the door which he did not answer. When he got up to investigate he found defendant had entered the house, apparently through an unlocked door.

Leivas saw defendant in the kitchen and asked what defendant was doing there. Defendant responded that Leivas had asked him in. Leivas denied this and told defendant he did not belong in the house. He asked defendant to leave but defendant refused.

Defendant then walked into the family room and asked Leivas if he wanted a beer and if he had jumper cables. Leivas responded negatively to both questions. At one point defendant also asked to use the phone.

Leivas went to a neighbor's house and called the police. When the officers arrived they accompanied Leivas back into his brother's house. Defendant was standing in the hallway carrying a sheet with items stuffed into it. When the officer entered the hallway defendant held his finger near the officer's head as though he had a gun. The officer spun defendant around and the bundled sheet fell to the floor.

When Leivas' brother Henry reentered his home he found items scattered on the floor in front of one of the bedrooms. These included jewelry, watches, knives and old coins, all of which had been taken from the bedrooms in the house.

The court instructed the jury a person was guilty of burglary if the person entered a structure with the intent to steal the personal property of another. The prosecution also requested and the court gave an instruction which stated: "The intent [to steal the personal property of another] need not be in the mind of the person at the time of the initial entry into the structure, if he subsequently forms the intent and enters a room within the structure." The prosecutor also argued in closing the jury could find defendant had committed burglary even if he formed the intent to steal after he entered the house but before he entered one of the bedrooms.

DISCUSSION

The challenged instruction was proper because it is consistent with the literal language of the controlling code section. In its current form this code section states: "Every person who enters any ... room ... with intent to commit grand or petit larceny or any felony is guilty of burglary." (§ 459.) We have found no published decisions by a court of this state holding, on facts similar to those present here, that burglary is not committed when the intent to steal is formed after entry to a building but before entering a room therein from which the defendant intends to steal property. This is undoubtedly due to the fact the definition of burglary has included entry into a room with the requisite intent since the Penal Code was first adopted in 1872. (§ 459, as enacted 1872.)

There are, however, numerous decisions holding that entry into a room with the required intent is burglary. (See People v. Young (1884) 65 Cal. 225, 3 P. 813; People v. Davis (1905) 1 Cal.App. 8, 10, 81 P. 716; People v. Mackabee (1989) 214 Cal.App.3d 1250, 1253, 1257-1258, 263 Cal.Rptr. 183; People v. Garcia (1963) 214 Cal.App.2d 681, 683, 29 Cal.Rptr. 609; People v. Davis (1959) 175 Cal.App.2d 365, 369-370, 346 P.2d 248.) As the plain language of the code includes entry into a room within the definition of burglary the court's instruction was proper.

Defendant cites People v. Graham (1958) 156 Cal.App.2d 525, 319 P.2d 677, as an example supporting his contention burglary cannot be proved where the required intent arises after the entry into a building. In that case the court found burglary had not been established because the intent to steal appeared to have been formed after the entry. The problem in Graham, however, was not with the time at which the intent arose but rather that the prosecution charged entry with the intent to steal but the evidence established entry was made with the intent to rape, and the intent to steal arose after the entry. The prosecution simply failed to prove the charged crime. (Id. at pp. 528-529, 319 P.2d 677.)

Defendant's reference to People v. O'Keefe (1990) 222 Cal.App.3d 517, 271 Cal.Rptr. 769, in which a burglary was found for each entry into a dormitory room, is also misplaced. (Id. at pp. 520-522, 271 Cal.Rptr. 769.) The issue of whether these entries could constitute burglaries was decided by reference to cases finding burglary could be established by entry into rooms within a building such as a hotel or office building. (Id. at p. 521, 271 Cal.Rptr. 769.) The court then unnecessarily rejected the defendant's attempted analogy to a home shared by family members. (Ibid.)

Defendant also argues that since the cases which have upheld...