People v. Salemme

• Decision Date: 13 January 1992
• Docket Number: No. C008476,C008476
• Citation: 3 Cal.Rptr.2d 398,2 Cal.App.4th 775
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. Nicholas Andre SALEMME, Sr., Defendant and Respondent.

Page 398

3 Cal.Rptr.2d 398

2 Cal.App.4th 775

The PEOPLE, Plaintiff and Appellant, v. Nicholas Andre SALEMME, Sr., Defendant and Respondent.

No. C008476.

Court of Appeal, Third District, California.

Jan. 13, 1992.

Review Denied April 2, 1992.

John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Michael Weinberger, Supervising Deputy Atty. Gen., Arnold O. Overoye, Sr. Asst. Deputy Atty. Gen., and Susan Rankin Bunting, Deputy Atty. Gen., for plaintiff and appellant.

Leonard K. Tauman, Holloway & Tauman, Auburn, for defendant and respondent.

Melissa K. Nappan, San Francisco, for amicus curiae, on behalf of Cal. Attys. for Crim. Justice.

SCOTLAND, Associate Justice.

This case poses the question whether defendant's alleged entry into the home of an intended victim for the purpose of selling fraudulent securities constituted burglary. Defendant contends it did not because the purpose of our state's burglary statutes is "to protect against dangers inherent in intrusion" and, on the facts of this case, "there could be no danger from the mere entry of [the victim's] residence [for the purpose of selling fraudulent securities]." The People retort that defendant committed burglary when he entered the victim's residence to commit a felony, sale of fraudulent securities (Corp.Code, §§ 25110, 25401, 25540), whether or not the entry presented an imminent threat of physical harm to the victim. In the People's view, California's burglary statutes (Pen.Code, §§ 459, 460) encompass an entry into a structure with the intent to commit any felony, not just "felonies of violence or felonies which may induce a violent response from the victim."

For reasons which follow, we conclude that a person who enters a structure enumerated in Penal Code section 459 with the intent to commit Iany 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 entrant's felonious intent. Since neither condition was satisfied in this case, defendant's alleged entry constituted burglary even though the act may have posed no physical danger to the victim who had invited defendant in to purchase securities from him.

We also reject the contention of amicus curiae that defendant's prosecution for violating our state's burglary statutes is precluded because Corporations Code sections 25110 and 25401 are specific statutes covering his conduct.

FACTS

At the preliminary examination in this action, the People introduced evidence that, on two occasions, defendant entered the home of William Zimmerman with the intent to sell him fraudulent securities and that defendant twice succeeded in convincing Zimmerman to purchase the securities. The victim initially invested $9,900. He later spent an additional $1,100.

By amended information, defendant was charged with two counts of burglary (Pen.Code, §§ 459, 460), two counts of selling unregistered securities (Corp.Code, § 25110), and two counts of selling securities by means of misleading statements and omissions of material facts (Corp.Code, § 25401).

Pursuant to Penal Code section 995, defendant moved to set aside the burglary counts. He argued the evidence elicited at the preliminary hearing was insufficient to support the charges because "the purpose of the burglary laws are [sic ] to protect against dangers inherent in intrusion; no such situation arises on the facts of this case." The trial court agreed and granted the motion. The People appeal. (Pen.Code, § 1238, subd. (a)(8).)

DISCUSSION

I

Penal Code section 459 provides in pertinent part: "Every person who enters any house ... or other building ... with intent to commit grand or petit larceny or any felony is guilty of burglary...." (Italics added; further statutory references are to the Penal Code unless otherwise specified.)

A century ago, our Supreme Court held that an entry into a store with the intent to commit larceny constituted burglary under section 459. (People v. Barry (1892) 94 Cal. 481, 482-484, 29 P. 1026.) Noting that "common law burglary and the statutory burglary of this state have but few elements in common," the court concluded: "the 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." (Id., at pp. 482-483, 29 P. 1026.)

For 83 years, this plain meaning applied: any entry with the intent to commit a felony into any structure enumerated in section 459 constituted burglary regardless of the circumstances of the entry. (E.g., People v. Sears (1965) 62 Cal.2d 737, 746, 44 Cal.Rptr. 330, 401 P.2d 938; People v. Deptula (1962) 58 Cal.2d 225, 228, 23 Cal.Rptr. 366, 373 P.2d 430; People v. Brittain (1904) 142 Cal. 8, 10, 75 P. 314; People v. Edwards (1971) 22 Cal.App.3d 598, 602, 99 Cal.Rptr. 516; People v. Garrow (1955) 130 Cal.App.2d 75, 83, 278 P.2d 475.)

In 1975, the Supreme Court revisited the issue of statutory interpretation of section 459 when the court was presented with the question whether a person can burglarize his or her own home. (People v. Gauze (1975) 15 Cal.3d 709, 125 Cal.Rptr. 773, 542 P.2d 1365.) Examining "the purposes underlying common law burglary and how they may have been affected by the enactment of the Penal Code," the court concluded that the plain meaning of the statute is inconsistent with its purpose when applied to one accused of burglarizing his or her own home. (Id., at pp. 712-716, 125 Cal.Rptr. 773, 542 P.2d 1365.) The court reasoned as follows:

In enacting 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." (15 Cal.3d at p. 713, 125 Cal.Rptr. 773, 542 P.2d 1365 [a possessory right is the right to exert control over property to the exclusion of others (Black's Law Dict. (1979) p. 1049) ].) Thus, 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." (15 Cal.3d at p. 714, 125 Cal.Rptr. 773, 542 P.2d 1365; italics added.)

A person has a right to be in a structure when he or she has an unconditional possessory right to enter (as in Gauze where the accused had the right to enter his own home, even for a felonious purpose) or where the person has expressly or impliedly been invited to enter and does so for a lawful reason. (15 Cal.3d at p. 714, 125 Cal.Rptr. 773, 542 P.2d 1365.) " '[A] party who enters with the intention to commit [larceny or] 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., at p. 713, 125 Cal.Rptr. 773, 542 P.2d 1365, quoting Barry, supra, 94 Cal. at p. 483, 29 P. 1026.) Therefore, a person who enters a store with the intent to commit petty theft or a felony can be convicted of burglary even though he or she enters during regular business hours while the store is open to the general public. (Ibid.)

"Applying the foregoing reasoning, [the Supreme Court] conclude[d] 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; .... More importantly, defendant had an absolute right to enter the apartment.... It was a personal right that could not be conditioned on the consent of the defendant's roommates. Defendant could not be 'refused admission at the threshold' of his apartment, or be 'ejected from the premises after entry was accomplished.' ... He could not, accordingly, commit a burglary in his own home." (15 Cal.3d at p. 714, 125 Cal.Rptr. 773, 542 P.2d 1365, quoting Barry, supra, 94 Cal. at p. 483, 29 P. 1026; italics added.)

Four years later, the Supreme Court reiterated that its holding in Gauze was predicated on the fact the accused had an unconditional right to enter the structure in question and thus did not invade a possessory right of habitation. The court emphasized: "The law after Gauze is that one [who enters a structure with the intent to commit petty theft or a felony] may be convicted of burglary even if he enters with consent, provided he does not have an unconditional possessory right to enter." (People v. Pendleton (1979) 25 Cal.3d 371, 382, 158 Cal.Rptr. 343, 599 P.2d 649; italics added.)

Following this premise, the Court of Appeal in People v. Superior Court (Granillo) (1988) 205 Cal.App.3d 1478, 253 Cal.Rptr. 316 held that one 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. In Granillo, the accused entered an undercover officer's apartment upon invitation of the officer who knew the accused was in possession of stolen property he wanted to sell. The invitation and entry were orchestrated by the police in an effort to catch criminals in the act and recover stolen property. Commenting that "the burglary law is designed to protect a possessory right in property against intrusion and the risk of harm," the court concluded it "would be contrary to the primary basis of the burglary law" to find the accused guilty of burglary. (Id., at p. 1485, 253 Cal.Rptr. 316; italics added.) The court reasoned that this was not a situation where the occupant was ignorant of the accused's felonious intent and would have refused admission at the threshold or ejected the...