From the Classroom: Theft and burglary case law review
By: Ray Hill Professor Emeritus, Santa Rosa Junior College 

Legislative Update 

State Sen. Scott Weiner (D-San Francisco) has introduced SB905, which could be a major change in the auto burglary statute, currently a second-degree felony/wobbler. As you know, currently your investigation must establish evidence to prove a vehicle was locked or there were reasonable precautions to secure it for the burglary statute to be charged. SB905 would amend the statute to read that any forcible entry into a vehicle, regardless of “locked status,” is burglary. So, if a perpetrator smashed a window to enter without checking whether the vehicle was locked, the corpus of burglary would apply (in other words the perp wasn’t abiding by the traditional fire service motto “Try before you pry!”).

Weiner introduced similar legislation in 2018 and 2019, but the bills died in the legislature. Let’s hope he has better luck this time around. 

This amendment seems to make sense in light of the present day M.O. of perpetrators, it would avoid the inconvenience to crime victims who would have to travel to testify, and it would certainly facilitate charging this crime. 

Test Your Theft Knowledge 

Let’s try a quiz on case law relating to the burglary and theft statutes in the Penal and Vehicle Codes: 

1) Which of the following statements is correct when determining value of property stolen for the purposes of grand theft or petty theft? 

     a) Sentimental value can be added to the victim’s estimate of loss. 

     b) Labor costs for reinstallation of the stolen property can be added to value of the property taken. 

     c) Wholesale cost. 

     d) Highest price obtainable in the marketplace between a willing seller and buyer. 

     e)  Retail replacement value. 

2) For the purposes of determining the value of the property stolen, California sales tax can be added in determining total property loss. 

     TRUE FALSE 

3) When several petty thefts are committed against the same victim according to a common intention, design, motive, or plan, the amount of the thefts can be aggregated to establish a loss over $950. 

     TRUE FALSE 

4) Possession of burglary tools is a general intent crime. 

     TRUE FALSE 

5) At 01:30 hours, three perpetrators make a rooftop entry through a skylight into a high-end clothing store. They begin removing clothing, purses and accessories from the main floor using a rope to hoist them to the roof, where a fourth perpetrator is waiting. During the sweep through the building, forced entry is made into two locked, private back offices and through a bolted swinging door to a rear storage area. This door bears a sign reading “Employees Only.” Additional property is taken from one office and the storage area. How many acts of burglary exist here? 

     a) Just one. Entry into the building includes the entire premises. 

     b) Two. The customer access area and the storage area. 

     c) Three. The customer access area, the rear storage area, and the locked office where property was taken.
          No crime for the other office where no property was taken. 

     d) Four for each entry. 

6) A perpetrator steals a vehicle worth $800 in fair market value, switches license plates and drives the car around for 10 days. He is stopped for an equipment violation and the stolen status of the vehicle is revealed. Because under Prop. 47 the value of the vehicle is under $950, the perpetrator can only be charged with a misdemeanor? 

     TRUE FALSE 

7) A perpetrator knowingly purchases a stolen vehicle and conceals it for the purpose of dismantling it for component parts. The fair market value of the vehicle must be established to determine whether the offense is a felony or misdemeanor. 

     TRUE FALSE 

8) A defendant and his roommate engage in a heated argument. The defendant tells his roommate “Get your gun because I am going to get mine.” The defendant goes to a neighbor’s apartment, obtains a shotgun, reenters his apartment, and shoots his roommate in the side and arm. In addition to other charges, the defendant can be charged with first-degree burglary – entering an inhabited structure with intent to commit a felony? 

     TRUE FALSE 

9) Which of the following inhabited areas would not be covered under the first-degree burglary statute? 

     a) Camper 

     b) Houseboat 

     c) Tent 

     d) Recreational vehicle 

     e) School 

10. Beth finds a purse in a store dressing room. It contains cash, credit cards and a CDL. Also in the purse is an address book with the owner’s name written on the front. Beth takes the purse and exits the store without telling a store employee or other person about the find. She doesn’t make contact with the name on the address book or other ID found in the purse. What offense occurred here: 

1. Theft by False Pretenses (532 P.C.) 

2.  Commercial Theft (459.5 P.C.) 

3.  Receiving Stolen Property (496 P.C.) 

4.  Misappropriation of Lost Property (485 P.C.) 

5.  Identity Theft (530.5 P.C.) 

ANSWERS: 

1. D – Peo. v. Pena (1977) 68 Cal. App. 3d 100. An officer may also use internet sources in determining fair market value.  Also see, LU Ref. #CAC00106, 6/11/23, “New Court Decision Creates California Precedent for On-Line Research to Establish Value in Theft Cases.”  Note: If damage occurs during the removal or taking of property, consider charging vandalism. Express an opinion of the dollar amount of damage (800 E.C.) and obtain an estimate from a contractor, auto repair or other repair trade to forward to the district attorney for criminal complaint filing. 

2. TRUE – Peo. v. Seals (2017) 14 Cal. App. 5th 1210. 

3. TRUE – Peo. v. Bailey (1961). Tally them up!  

4. FALSE – Under 466 P.C., Possession of Burglary Tools is a specific intent crime. A perpetrator must possess an enumerated tool with the intent to break or physically enter an identified area to commit theft or a felony. For a misdemeanor crime, that is a big burden of proof. Bringing tools or instrumentalities to the crime scene carries more horsepower as relevant evidence (the means for committing an offense, 210 E.C.) to prove the specific intent element for burglary. 

5. D – Entry into the interior rooms that are prima facie identifiable as not being open to public access with the intent to steal is punishable as burglary. Tally them up! Peo. v. Colbert (2019) 6 Cal. 5th 596.  

6. FALSE – Driving that is separated from the vehicle’s taking by a substantial break in time constitutes a felony 10851 V.C. violation, regardless of the value of the car. Peo. v. Lara (2019) 6 Cal. 5th 1136; Peo. v. Bullard (2020) 9 Cal. 5th 94. 

7. FALSE – Under Prop. 47, 496(a) P.C., receiving stolen property requires a value over $950 for a felony charge. This change did not affect 496(d) P.C. regarding buying, receiving, concealing, selling a stolen vehicle, specified trailers, vessels, or motorized equipment. This statute is “value blind” and remains a felony/wobbler. Stolen vehicle component parts are potentially worth more on the clandestine market than the value of the vehicle itself (Peo. v. Orozco (2020) 9 Cal. 5th 111). 

8. FALSE – Burglary is an entry that invades the possessory right of a building and must be committed by a person who has no right to be on the premises. Defendant lived in the apartment (Peo. v. Gauze (1975) 15 Cal. 3rd 710). 

9. E – A school is covered under second-degree burglary. 

     10. 485 P.C. – Misappropriation of lost property. A person finding property must make reasonable efforts to locate the owner and return the property. This would be charged as grand theft or petty theft depending on the fair market value of the property. 

Thank you to the infamous DeVallis Rutledge, Orange County District Attorney’s Office/Los Angeles County District Attorney’s Office, for some case references contained in this article. I miss his “One Minute Brief” series. 

Stay Safe, 

RH