People v. Nguyen

• Decision Date: 15 November 1995
• Docket Number: No. D020744,D020744
• Citation: 46 Cal.Rptr.2d 840,40 Cal.App.4th 28
• Court: California Court of Appeals Court of Appeals
• Parties: , 95 Cal. Daily Op. Serv. 8821, 95 Daily Journal D.A.R. 15,395 The PEOPLE, Plaintiff and Respondent, v. Hung Hao NGUYEN, Defendant and Appellant.

Page 840

46 Cal.Rptr.2d 840

40 Cal.App.4th 28, 95 Cal. Daily Op. Serv. 8821,

95 Daily Journal D.A.R. 15,395

The PEOPLE, Plaintiff and Respondent, v. Hung Hao NGUYEN, Defendant and Appellant.

No. D020744.

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

Nov. 15, 1995.

Review Denied Feb. 14, 1996.

[40 Cal.App.4th 29] Charles F. Campbell, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant.

John T. Philipsborn, San Francisco, as Amicus Curiae on behalf of Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Keith I. Motley and Janelle B. Davis, Deputy Attorneys General, for Plaintiff and Respondent.

KREMER, Presiding Justice.

The primary issue in this case is whether Nguyen committed burglary when he entered a house with the intent to steal property by giving the victim a worthless check in exchange for various items. We conclude the conduct constitutes burglary.

Hung Hao Nguyen was convicted of three counts of burglary (PEN.CODE, § 459)¹. In each count the victim advertised an item for sale in a local newspaper. Nguyen responded to the advertisements. The victims allowed Nguyen inside their homes. Once inside Nguyen negotiated a price for the items and paid by check. In each case, Nguyen wrote a check on an account he had earlier personally closed. The purchase price of the items ran from $135 to $560.

On appeal, Nguyen contends his conduct did not constitute burglary and that the prosecutor committed misconduct during closing argument.

DISCUSSION

I Burglary

Penal Code section 459 defines the offense of burglary as follows: "Every person who enters any house ... with intent to commit grand or petit larceny or any felony is guilty of burglary."

Nguyen first argues, based on a historical and semantic analysis of the law of burglary and larceny, that his conduct does not constitute burglary because the burglary statute requires an entry with an intent to commit "grand or petit larceny or any felony" (§ 459, emphasis added) and he intended neither a "larceny" nor a felony but rather a "petit [i.e., misdemeanor]" theft by false pretenses. He points out that originally "larceny" was a separate crime and that there is a separate code section for the crime of theft by false pretenses (§ 532). And therefore, he concludes an intent to commit a misdemeanor or "petit" theft by false pretenses is insufficient to support a burglary conviction.

This argument, grounded on the use of the term "larceny," is without merit. As Nguyen acknowledges, in 1927, the Legislature amended the larceny statute to define theft as including the crimes of larceny, embezzlement and obtaining property by false pretense. (Stats.1927, ch. 619, § 1, p. 1046.) At the same time, the Legislature also enacted section 490a stating "[w]herever any law or statute of this state refers to or mentions larceny, embezzlement, or stealing, said law or statute shall hereafter be read and interpreted as if the word 'theft' were substituted therefor." (Stats.1927, ch. 619, § 7, p. 1047.) Thus, the Legislature has indicated a clear intent that the term "larceny" as used in the burglary statute should be read to include all thefts, including "petit" theft by false pretenses.

Nguyen contends his conduct does not constitute burglary because the burglary laws are intended to protect against the "security of habitation or occupancy, rather than an offense against ownership or property" and here "[t]here was no home invasion or intrusion of the type sought to be prevented under the burglary laws."

Nguyen's argument is premised on rejecting a plain language interpretation of the burglary statute and instead applying a policy approach. Nguyen acknowledges if we In Salemme, the court held the defendant committed burglary when he entered a home to sell the occupant fraudulent securities. Salemme began its analysis with a Supreme Court case from 1892, People v. Barry (1892) 94 Cal. 481, 29 P. 1026. In Barry, the Supreme Court relied on a plain language interpretation of the burglary statute and held entry into a store, generally open to the public, with the intent to commit larceny constitutes burglary. The Barry court, after noting "common-law burglary and the statutory burglary of this state have but few elements in common," (id. at p. 482, 29 P. 1026) stated:

adopt a plain language interpretation, as did the court in People v. Salemme (1992) 2 Cal.App.4th 775, 3 Cal.Rptr.2d 398, then we would affirm his conviction.

"[T]he language [of section 459] 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 Salemme court noted, "For 83 years, this plain meaning applied: any entry with the intent to commit a felony [or theft] into any structure enumerated in section 459 constituted burglary regardless of the circumstances of the entry. [Citations.]" (People v. Salemme, supra, 2 Cal.App.4th 775, 779, 3 Cal.Rptr.2d 398.)

Salemme next looked at the Supreme Court's decision in People v. Gauze (1975) 15 Cal.3d 709, 125 Cal.Rptr. 773, 542 P.2d 1365, where the Supreme Court "revisited the issue of statutory interpretation of section 459" in deciding "the question whether a person can burglarize his or her own home." (People v. Salemme, supra, 2 Cal.App.4th 775, 779, 3 Cal.Rptr.2d 398.) The Gauze court held a person cannot burglarize his own home. The Supreme Court stated, the "burglary law is designed to protect a possessory right in property, rather than broadly to preserve any place from all crime" and "must be committed by a person who has no right to be in the building." (People v. Gauze, supra, 15 Cal.3d 709, 713-714, 125 Cal.Rptr. 773, 542 P.2d 1365.) The court, relying on its decision in People v. Barry, supra, 94 Cal. 481, 29 P. 1026, defined "right to be in the building" as a person who had an unconditional right of possession, i.e., a person who could not be refused admittance at the threshold or ejected from the premises if the intent to commit a theft or felony were known. (People v. Gauze, supra, at pp. 713-714, 125 Cal.Rptr. 773, 542 P.2d 1365.)

The Supreme Court further stated:

" 'Burglary laws are based primarily upon a recognition of the dangers to personal safety created by the usual burglary situation--the danger that the intruder will harm the occupants in attempting to perpetrate the intended crime or to escape and the danger that the occupants will in anger or panic react violently to the invasion, thereby inviting more violence. The laws are primarily designed, then, not to deter the trespass and the intended crime, which are prohibited by other laws, so much as to forestall the germination of a situation dangerous to personal safety.' Section 459, in short, is aimed at the danger caused by the unauthorized entry itself.

"In contrast to the usual burglary situation, no danger arises from the mere entry of a person into his own home, no matter what his intent is." (People v. Gauze, supra, 15 Cal.3d 709, 715, 125 Cal.Rptr. 773, 542 P.2d 1365.)

The Salemme court also looked at the decision in People v. Superior Court (Granillo) (1988) 205 Cal.App.3d 1478, 253 Cal.Rptr. 316, which followed the Gauze decision. Granillo held a person who enters a structure with the intent to commit a felony cannot be convicted of burglary when invited in by the occupant who knows of and endorses the felonious intent. The Granillo court reasoned in such a situation, it cannot be said that the accused would have been refused admission at the threshold or ejected after entry on the basis he entertained an intent to commit a theft or felony since the occupant Salemme, focusing on the language in Gauze and Granillo that the burglary laws were intended to protect a "possessory right of habitation" concluded:

having knowledge of the intent, admitted the accused and did not eject him. The Granillo court, as in Gauze, also noted that one of the purposes of California's burglary law was to protect against the dangers to personal safety created by the " 'usual burglary situation.' " (Id. at p. 1483, 253 Cal.Rptr. 316.)

"since burglary is a breach of the occupant's possessory rights, a person who enters a structure enumerated in section 459 with the intent to commit a felony is guilty of burglary except when he or she (1) has an unconditional possessory right to enter as the occupant of that structure or (2) is invited in by the occupant who knows of and endorses the felonious intent." (People v. Salemme, supra, 2 Cal.App.4th 775, 781, 3 Cal.Rptr.2d 398; see also People v. Felix (1994) 23 Cal.App.4th 1385, 1398, 28 Cal.Rptr.2d 860.)

Because the defendant in Salemme entered the home with a felonious intent and neither of the exceptions applied, the defendant could be convicted of burglary. The Salemme court rejected the argument the underlying offense must involve some threat of violence:

"In effect, defendant would write into section 459 the requirement that the perpetrator must intend to commit a felony which poses a physical danger to the victim, rather than 'any felony' [or theft] as specified by the Legislature. This interpretation is not compelled by the purpose of the burglary statutes as discussed above and would constitute impermissible judicial legislation." (People v. Salemme, supra, 2 Cal.App.4th 775, 781-782, 3 Cal.Rptr.2d 398.)

Nguyen argues Salemme was wrongly decided because it relied on the underlying purpose of the burglary statute as protecting a possessory right in property. Nguyen...