11.5 Burglary

Burglary

Exam Snapshot: At common law, burglary and arson were strictly classified as offenses against habitation—designed to protect the security and sanctity of human shelter rather than mere property ownership. On the FYLSE, examinees must master the rigid common-law definitions of both crimes while simultaneously understanding how modern statutory enactments have stripped away archaic restrictions like the nighttime requirement and the technical breaking element.

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1. Common Law Burglary: Deconstructing the Classical Elements

The Common Law Rule Statement

At common law, burglary is defined as the breaking and entering of the dwelling house of another in the nighttime with the intent to commit a felony therein.

[ Breaking ] + [ Entering ] + [ Dwelling House ] + [ Of Another ] + [ In Nighttime ] + [ Intent to Commit Felony Therein ] = Common Law Burglary

Element 1: Breaking (Fractio)

A breaking requires the creation or enlargement of an opening through the application of physical force, or through recognized constructive equivalents:

1. Actual Breaking: Applying any physical force to move or displace an obstruction designed to close an opening:
   • Sufficient Force: Turning a doorknob, pushing open an unlatched closed door, lifting a window sash, or unhooking a screen door constitutes an actual breaking.
   • The Open Door/Window Trap: Walking through an open door or climbing through an open window is NOT a breaking. Because the occupant left the structure open to the elements, there was no barrier to displace.
   • The Partially Open Window Rule: If a window or door is already partially open (e.g., opened four inches for ventilation), climbing through the existing opening without touching the sash is not a breaking. However, under the majority common-law rule, if the intruder further pushes open, raises, or widens the partially open window or door to create an aperture large enough to pass through, that movement constitutes an actual breaking.
   • Breaking Interior Doors: If a defendant enters a building without a breaking (e.g., entering an open front door), but subsequently pushes open a closed interior bedroom door or breaks the lock on an interior office, the interior breaking satisfies the breaking element for burglary of that room.
2. Constructive Breaking: Where no physical force is applied to barriers, but access is gained by circumventing the occupant's consent through one of four methods:
   • Fraud or Artifice: Posing as a utility inspector, telephone repair technician, or delivery courier to induce the homeowner to unlock the door.
   • Threat of Violence: Threatening the occupant with imminent physical force (e.g., pointing a handgun through a window and ordering the occupant to unlock the door).
   • Collusion with an Insider: Conspiring with a household domestic servant or commercial security guard who unlocks the entrance to facilitate entry.
   • Exceeding Scope of Consent: Entering a public store or private home under limited consent, then entering an unauthorized, locked, or private residential quarters.

Element 2: Entering (Introitus)

Entry requires physical intrusion across the threshold or plane of the structure. Two critical rules govern entry on the FYLSE:

• Bodily Intrusion: Any intrusion of any part of the defendant's physical body—even a fingertip, a foot, or the toe of a boot crossing the plane of a window or doorway—is sufficient to consummate entry.
• The Instrument Entry Rule: When an instrument or mechanical tool crosses the threshold, whether entry has occurred depends strictly on the function of the tool:
  • Tool Used Solely to Effectuate a Breaking: If a crowbar, tire iron, or drill bit penetrates the plane of the window frame solely to pry open a lock or bore a hole, NO entry has occurred.
  • Tool Used to Consummate the Target Felony: If an instrument is inserted across the threshold to execute the underlying crime (e.g., inserting a wire coat hanger to snag a mink coat from a closet, or pointing a pistol barrel through a broken pane to shoot an occupant), ENTRY IS COMPLETE the instant the instrument crosses the plane.

Element 3: The Dwelling House (Mansion House)

At common law, a dwelling house was defined as a structure regularly used for human habitation and sleeping:

• Habitation Status: A house remains a dwelling even if the occupants are temporarily absent on vacation, traveling, or in the hospital, provided the occupants possess the intent to return.
• Unoccupied and New Structures: A newly constructed house never yet occupied as a sleeping place, or a home permanently abandoned by its occupants, is not a common-law dwelling.
• The Curtilage Doctrine: At common law, the dwelling house extended to the curtilage—the enclosed parcel of land immediately surrounding the main house, including associated domestic outbuildings located within the common protective fence (e.g., barns, stables, smokehouses, and storage sheds).

Element 4: Of Another

Burglary is an offense against occupancy and habitation, not legal ownership or title:

• Occupant vs. Landlord: A landlord who rents an apartment to a tenant does not have a possessory right to enter. If the landlord breaks and enters the tenant's rented apartment at night with intent to steal, the landlord commits common law burglary.
• Co-Occupants: A person cannot commit common law burglary by entering a dwelling where they possess a current, lawful right of co-occupancy and entry (e.g., one spouse breaking into the marital home).

Element 5: In the Nighttime

Under the traditional common law, the entry must occur during the nighttime:

• The Countenance Test: Nighttime was defined as the period between sunset and sunrise when there was insufficient natural daylight to discern a person's face (countenance). Artificial illumination (street lamps, moonlight, flashlights) was completely disregarded.

Element 6: Specific Intent to Commit a Felony Therein

The defendant must break and enter with the specific intent to commit a felony inside the dwelling (or any common-law theft, even if petit):

• The Strict Concurrence Requirement: The specific felonious intent MUST exist at the exact microsecond of entry. If an intruder breaks and enters a dwelling to escape a freezing storm, to sleep, or merely to snoop, and only after entering decides to steal valuable property, no common law burglary has occurred (the defendant is guilty only of trespass and completed larceny).
• Target Felony Need Not Be Completed: The burglary is fully consummated the instant the defendant enters with the required mental state. It is completely immaterial whether the intended felony is completed, attempted, or abandoned.

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2. Modern Statutory Burglary & California Penal Code § 459

Modern penal codes have dramatically expanded the scope of burglary, transforming it from a narrow habitational offense into a sweeping property-protection statute:

Common Law Burglary                      Modern Statutory Burglary
├── Breaking required                    ├── Breaking abolished (unlawful entry or remaining)
├── Nighttime required                   ├── Nighttime abolished (any time of day or night)
├── Dwelling house + curtilage           ├── Any structure, building, vehicle, or vessel
└── Intent to commit a felony            └── Intent to commit ANY theft or ANY felony

California Penal Code § 459 Architecture

Under California Penal Code § 459, burglary is committed when a person enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse, other building, tent, vessel, or locked motor vehicle, with intent to commit grand or petit larceny or any felony.

• First-Degree Burglary (Residential): Burglary of an inhabited dwelling house, vessel, floating home, or trailer coach, or the inhabited portion of any other building. An inhabited structure is one currently used for dwelling purposes, whether occupied or not at the moment of entry. First-degree burglary is always a felony.
• Second-Degree Burglary (Commercial): All other forms of burglary, including entries into commercial establishments, warehouses, offices, and locked automobiles. Second-degree burglary is a "wobbler" in California (punishable as either a felony or a misdemeanor).
• Auto Burglary: To burglarize a motor vehicle under California law, the vehicle must be locked. Opening an unlocked vehicle door to steal items inside is grand or petty theft, but cannot constitute vehicle burglary under § 459.
• Proposition 47 (Shoplifting - Cal. Penal Code § 459.5): Entering an open commercial establishment during regular business hours with intent to commit theft where the value of the property taken or intended does not exceed $950 constitutes the separate misdemeanor offense of shoplifting, which must be charged instead of second-degree commercial burglary.

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