Property Crimes

PC 212.5(a) (Robbery 1st Degree)

Elements

(1) D took property that was not his own
(2) Property was in possession of another
(3) Property was taken from the other person or his immediate presence
(4) Property was taken against that person’s will
(5) D used force or fear to take the property or to prevent the person from resisting
(6) When the D used force or fear, intended to deprive the owner of the property permanently or to remove the property from the owner’s possession for so extended a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property; AND
(7) Robbery committed EITHER:
- (a) in an inhabited dwelling
- (b) While victim was using or had just used an ATM machine & was still near machine; OR
- (c) Committed while victim was performing duties of or was passenger on a bus/taxi/train

(1) D took property that was not his own

(2) Property was in possession of another

(3) Property was taken from the other person or his immediate presence

(4) Property was taken against that person’s will

(5) D used force or fear to take the property or to prevent the person from resisting

(6) When the D used force or fear, intended to deprive the owner of the property permanently or to remove the property from the owner’s possession for so extended a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property; AND

(7) Robbery committed EITHER:

(a) in an inhabited dwelling

(b) While victim was using or had just used an ATM machine & was still near machine; OR

(c) Committed while victim was performing duties of or was passenger on a bus/taxi/train

Case Law/Statutes/Notes

Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear. (PC 211.)
Inhabited Dwelling.
- Test: [W]hether the nature of a structure’s composition is such that a reasonable person would expect some protection from unauthorized intrusion. (People v. Fond (1999) 71 Cal.App.4th 127, 131.)
Hotel room. (People v. Fleetwood (1985) 171 Cal.App.3d 982, 987-988.)
Hospital room. (People v. Fond (1999) 71 Cal.App.4th 127, 131-132.)
Jail cell. (People v. McDade (1991) 230 Cal.App.3d 118, 127-128.)
D’s Own Inhabited Dwelling. Still first-degree robbery. (People v. Alvarado (1990) 224 Cal.App.3d 1165, 1169.)
CALCRIM 1600; 1602

Punishment: Triad 3-4-6 // Serious & Violent Felony

PC 212.5(c) (Robbery 2nd Degree)

Elements

(1) D took property that was not his own
(2) Property was in possession of another
(3) Property was taken from the other person or his immediate presence
(4) Property was taken against that person’s will
(5) D used force or fear to take the property or to prevent the person from resisting
(6) When the D used force or fear, intended to deprive the owner of the property permanently or to remove the property from the owner’s possession for so extended a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property.

(1) D took property that was not his own

(2) Property was in possession of another

(3) Property was taken from the other person or his immediate presence

(4) Property was taken against that person’s will

(5) D used force or fear to take the property or to prevent the person from resisting

(6) When the D used force or fear, intended to deprive the owner of the property permanently or to remove the property from the owner’s possession for so extended a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property.

Case Law/Statutes/Notes

Fear means “sufficient fear to cause the victim to comply with the unlawful demand for his property.” (People v. Morehead (2011) 191 Cal.App.4th 765, 774.)
Subjective Fear Required. The People must prove that “the victim was in fact afraid”; in other words, what matters is whether the victim in this case was subjectively in fear, not whether a hypothetical and objective “reasonable person” standing in the victim’s shoes would have been afraid. (People v. Collins (2021) 65 Cal.App.5th 333, 341.)
- As long as the victim has subjective fear, “it makes no difference whether the fear is generated by the perpetrator’s specific words or actions designed to frighten, or by the circumstances surrounding the taking itself. (People v. Flynn (2000) 77 Cal.App.4th 766, 772.)
- Explicit Testimony of Fear Not Required. “Actual fear … need not be testified to explicitly by the victim…[w]here intimidation is relied upon, it [can] be established by proof of conduct, words, or circumstances reasonably calculated to produce fear.” (People v. Bordelon (2008) 162 Cal.App.4th 1311, 1319.)
Intimidation. Intimidation alone may satisfy the “fear” element.
- “Where intimidation is relied upon, it must be established by proof of conduct, words, or circumstances reasonably calculated to produce fear. But it is not necessary that there be proof of actual fear, as fear may be presumed where there is just cause for it.” (People v. Borra (1932) 123 Cal.App. 482, 484.)
- Intimidation is a synonym of fear and a jury may infer fear “from the circumstances despite even superficially contrary testimony of the victim.” (People v. Iniquez (1994) 7 Cal.4th 847, 857.)
Force. Law requires the perpetrator exert some quantum of force in excess of that necessary to accomplish the mere seizing of the property. (People v. Montalvo (2019) 36 Cal.App.5th 597.)
- The force need not be great. (People v. Joseph (2019) 33 Cal.App.5th 943, 951.)
- The degree of force need only be sufficient to overcome the victim’s resistance. (People v. Mullins (2018) 19 Cal.App.5th 594, 604.)
  - Nudging victim away from ATM machine and taking V’s place in front of ATM sufficient quantum of force. (People v. Mullins (2018) 19 Cal.App.5th 594, 599.)
- “An accepted articulation of the rule is that ‘[a]ll the force that is required to make the offense a robbery is such force as is actually sufficient to overcome the victim’s resistance.’” (People v. Burns (2009) 172 Cal.App.4th 1251, 1259.)
- However, “[t]he law does require that the perpetrator exert some quantum of force in excess of that ‘necessary to accomplish the mere seizing of the property.’” (People v. Anderson (2011) 51 Cal.4th 989, 995.)
- “But the degree of force involved is immaterial, and can be satisfied by wresting a purse from someone unwilling to part with it and stepping on her foot (People v. Burns (2009) 172 Cal.App.4th 1251, 1259), or even by politely tapping a person on the shoulder to indicate that she should step aside from a cash register (People v. Garcia (1996) 45 Cal.App.4th 1242, 1246, disapproved of on other grounds in People v. Mosby (2004) 33 Cal.4th 353.).” (People v. Morales (2021) 69 Cal.App.5th 978, 992.)
- “A victim’s physical resistance will convert a theft into a robbery, regardless of the amount of force involved.” (People v. Lopez (2017) 8 Cal.App.5th 1230, 1236-1237.)
  - Thus, “any force sufficient to overcome a victim’s resistance will necessarily be more force than required to seize the property. That is, if a victim resists during the initial seizure, the force applied is necessarily more than required to seize the property absent resistance; and, if a victim does not resist at the time of seizure, force applied to overcome subsequent resistance is force in excess of that required to effect the initial seizure.” (People v. Hudson (2017) 11 Cal.App.5th 831, 839; People v. Mendez-Torres (Aug. 27, 2025) A168697.)
- “[U]nder the relevant case law, the use of any force that overcomes any physical resistance by the victim is sufficient to establish a robbery.” (People v. Mendez-Torres (Aug. 27, 2025) A168697.)
- Defendant & Victim Physical Characteristics. “Defendant’s physical characteristics in comparison to those of the victim may … be particularly relevant in determining whether the physical act applied by the defendant to the victim constituted ‘force.’ A shove by a defendant who is larger or stronger than h[er] victim may lead a jury to find that the shove amounted to the necessary ‘force.’” (People v. Williams (2025) 110 Cal.App.5th 1184; People v. Mungia (1991) 234 Cal.App.3d 1703, 1709.)
- Sufficient Force Found:
  - D nudged or pushed V’s hands away from ATM screen, sufficient force. (People v. Mullins (2018) 19 Cal.App.5th 594, 605.)
  - “Even a purse snatching can constitute a robbery if the victim simply resists the efforts to wrest the purse away.” (In re Jeremiah (2019) 41 Cal.App.5th 299, 308.)
  - D grabbed V, put him against the wall, sufficient force. (People v. Montalvo (2019) 36 Cal.App.5th 597, 619.)
    - Exceeded amount of force necessary to accomplish the mere seizing of the property – the removal of V’s wallet and the taking of cash therefrom
  - Level of force necessary to grab a purse and break its strap sufficient. (People v. Roberts (1976) 57 Cal.App.3d 782, 787, disapproved on other grounds in People v. Rollo (1977) 20 Cal.3d 109, 129, fn. 4.)
  - D forcibly resisted V’s attempts to take back their property, slugging V in head, struggled, kicking, punching, biting. (People v. Pham (1993) 15 Cal.App.4th 61, 63.)
  - Yanking gold necklace from neck sufficient force. “Gonzalez’s actions satisfy this standard of a commonly understood level of force. Owners of gold necklaces do not remove them by yanking them off the neck and breaking them. No one does that in an ordinary setting. It ruins the necklace. When another person yanks your necklace from your neck, the act is forceful. This fact is commonly understood.” (People v. Gonzalez (2021) 59 Cal.App.5th 643, 650.)
Immediate Presence of a person if it is so within his reach, inspection, observation or control, that he could, if not overcome by violence or prevented by fear, retain his possession of it. (People v. Hayes (1990) 52 Cal.3d 577, 626-627.)
- Property may be found in victim’s immediate presence even though it is located in another room of the house, or in another building on the premises. (People v. Gomez (2008) 43 Cal.4th 249, 257.)
- V assaulted 107 feet away from where property taken. (People v. Hayes (1990) 52 Cal.3d 577, 626-629.)
- V walked & assaulted ¼ mile away from car, killed, then car stolen. (People v. Webster (1991) 54 Cal.3d 411, 439-442.)
- V assaulted inside apartment, stole car parked outside. (People v. Bauer (1966) 241 Cal.App.2d 632, 641-642.)
Attempted Robbery. A conviction of attempted robbery requires proof of “(1) the specific intent to commit robbery, and (2) … a ‘direct but ineffectual act done toward its commission.’” (People v. Watkins (2012) 55 Cal.4th 999, 1018, quoting § 21a.)
- The required intent is “the specific intent to deprive the victim of the property permanently,” and an “intent to cause the victim to experience force or fear” is unnecessary. (People v. Anderson (2011) 51 Cal.4th 989, 994-995.)
Estes Robbery. Cases where force or fear is used not in the acquisition of property, but in the escape. (People v. Estes (1983) 147 Cal.App.3d 23.)
- Switch price sticker on merchandise, ‘purchase’ at cheaper price, confronted by LPO, scuffle ensues. Held, Estes robbery. (People v. Mireles (2018) 21 Cal.App.5th 237, 245.)
Attempted Estes Robbery. It’s a thing. (People v. Robins (2020) 44 Cal.App.5th 413, 421.)

Punishment: Triad 2-3-5 // Serious & Violent Felony

PC 215(a) (Carjacking)

Elements

(1) D took a motor vehicle
(2) Vehicle was taken from immediate presence of a person who possessed the vehicle or was its passenger
(3) Vehicle was taken against that person’s will
- An act is done against a person’s will if that person does not consent to the act. In order to consent, a person must act freely and voluntarily and know the nature of the act
(4) D used force or fear to take the vehicle or to prevent that person from resisting
(5) When D used force or fear to take the vehicle, he intended to deprive the other person of possession of the vehicle either temporarily or permanently.

(1) D took a motor vehicle

(2) Vehicle was taken from immediate presence of a person who possessed the vehicle or was its passenger

(3) Vehicle was taken against that person’s will

An act is done against a person’s will if that person does not consent to the act. In order to consent, a person must act freely and voluntarily and know the nature of the act

(4) D used force or fear to take the vehicle or to prevent that person from resisting

(5) When D used force or fear to take the vehicle, he intended to deprive the other person of possession of the vehicle either temporarily or permanently.

Case Law/Statutes/Notes

Force. A perpetrator accomplishes the taking of a motor vehicle by means of force, as defined under section 215, when the perpetrator drives the vehicle while a victim holds on or otherwise physically attempts to prevent the theft. (People v. Hudson (2017) 11 Cal.App.5th 831, 837.)
Immediate Presence. A vehicle is within a person’s immediate presence for purposes of carjacking if it is sufficiently within his control so that he could retain possession of it if not prevented by force or fear. (People v. Johnson (2015) 60 Cal.4th 966, 989.)
No Claim of Right Defense. Carjacking is strictly a crime against possession rather than ownership. As such it is not subject to a claim of right defense. (People v. Cabrera (2007) 152 Cal.App.4th 695, 703.)
Estes-lke Carjacking. “[M]ere vehicle theft becomes carjacking if the perpetrator, having gained possession of the motor vehicle without use of force or fear, resorts to force or fear while driving off with the vehicle. (People v. O’Neil (1997) 56 Cal.App.4th 1126, 1131.)
- D took vehicle w/o force or fear, but immediately used force–driving vehicle while victim held onto door handle–to retain possession. (People v. Lopez (2017) 8 Cal.App.5th 1230, 1233, 1237.)
Triad: 3-5-9 // Serious & Violent Felony
CALCRIM 1650

Punishment: Triad 3-5-9 // Serious & Violent Felony

PC 451(a)-(d) (Arson)

Elements

(1) D set fire to or burned/caused the burning of a structure
(2) He acted willfully and maliciously; AND
(3) 4 Options: GBI, Inhabited Structure, Structure/Forest, Property
- (a) GBI. The fire caused GBI to another person (PC 451(a).)
- (b) Inhabited. The fire burned an inhabited structure/property (PC 451(b).)
- (c) Structure/Forest Land. The fire burned a structure or forest land (PC 451(c).)
- (d) Property. The fire burned property (PC 451(d).)

(1) D set fire to or burned/caused the burning of a structure

(2) He acted willfully and maliciously; AND

(3) 4 Options: GBI, Inhabited Structure, Structure/Forest, Property

(a) GBI. The fire caused GBI to another person (PC 451(a).)

(b) Inhabited. The fire burned an inhabited structure/property (PC 451(b).)

(c) Structure/Forest Land. The fire burned a structure or forest land (PC 451(c).)

(d) Property. The fire burned property (PC 451(d).)

Case Law/Statutes/Notes

Statute: a person is guilty of arson when he or she willfully or maliciously sets fire to or burns or causes to be burned or who aids, counsels, or procures the burning of, any structure, forest land, or property
To set fire to or burn means to damage or destroy with fire either all or part of something, no matter how small the part. (CALCRIM 1502.)
General Intent: arson is a general intent crime with a mental state that cannot be negated by evidence of voluntary intoxication. (People v. Atkins (2001) 25 Cal.4th 76, 84.)
Maliciously is defined by statute as “import[ing] a wish to vex, defraud, annoy, or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law.” (PC 450(e).)
Someone acts maliciously when he or she intentionally does a wrongful act or when he or she acts with the unlawful intent to defraud, annoy or injure someone else. (CALCRIM 1502.)
Natural & Probable Consequences. There must be a general intent to willfully commit the act of setting on fire under such circumstances that the direct, natural, and highly probable consequences would be the burning of the relevant structure or property. (In re V.V. (2011) 51 Cal.4th 1020, 1029.)
- Whether D acts with awareness of facts that would lead a reasonable person to realize that the direct, natural, and highly probable consequence of igniting and throwing a firecracker into a dry bush would be the burning of the hillside. (Id. at p. 1030.)
- Car in a carport: It was foreseeable car fire would directly damage, if not spread to, the carport. (People v. Fry (1993) 19 Cal.App.4th 1334.)
PC 451(a): Fire Caused GBI
- CALCRIM 1501
PC 451(b): Fire burned inhabited structure/property
- Inhabited: inhabited is defined as “currently being used for dwelling purposes whether occupied or not.” (PC 450(d).)
  - Statute requires current inhabitation, i.e. “that the structure be inhabited at the present time,” which is “the time the fire is set.” (People v. Vang (2016) 1 Cal.App.5th 377, 386.)
  - Prosecution need not prove resident’s intent to continue to use the house for dwelling purposes after the fire. (People v. Buckner (2023) 97 Cal.App.5th 724, 726.)
- CALCRIM 1502
PC 451(c): Fire burned structure or forest land
- Forest land means brush-covered land, cut-over land, forest, grasslands, or woods
- CALCRIM 1515
PC 451(d): Fire burned property
- Property means personal property or land other than forest land
- CALCRIM 1515
Consider PC 451.1 Enhancement. Adds 3-4-5 c/s if pled & proved (one factor is sufficient):
- (a) Prior conviction for PC 451/452
- (b) Firefighter, peace officer, emergency personnel suffered GBI
  - Additional term SHALL be imposed if this factor pled/proved
- (c) Prox. caused GBI to more than one victim for single PC 451
  - Additional term SHALL be imposed if this factor pled/proved
- (d) Prox. caused mult. buildings to burn for single PC 451
- (e) Arson caused by use of device designed to accelerate fire or delay ignition

Punishment:
PC 451(a) Triad: 5-7-9 [GBI]
PC 451(b) Triad: 3-5-8 [Inhabited Property]
PC 451(c) Triad: 2-4-6 [Structure/Forest Land]
PC 451(d) Triad: 16-2-3 [Property]

PC 452(a)-(d) (Unlawfully Causing a Fire)

Elements

(1) D set fire to/burned/caused the burning of a structure
(2) D did so recklessly; AND
(3) 4 options: GBI, Inhabited Structure, Structure/Forest Land, Property
- (a) GBI. The fire caused GBI to another person (PC 452(a).)
- (b) Inhabited. The fire burned an inhabited structure/property (PC 452(b).)
- (c) Structure/Forest Land. The fire burned a structure or forest land (PC 452(c).)
- (d) Property. The fire burned property (PC 452(d).)

(1) D set fire to/burned/caused the burning of a structure

(2) D did so recklessly; AND

(3) 4 options: GBI, Inhabited Structure, Structure/Forest Land, Property

(a) GBI. The fire caused GBI to another person (PC 452(a).)

(b) Inhabited. The fire burned an inhabited structure/property (PC 452(b).)

(c) Structure/Forest Land. The fire burned a structure or forest land (PC 452(c).)

(d) Property. The fire burned property (PC 452(d).)

Case Law/Statutes/Notes

Statute: a person is guilty of unlawfully causing a fire when they recklessly set fire to, burn, or cause to be burned any structure, forest land, or property
A person acts recklessly when (1) he or she is aware that his or her actions present a substantial and unjustifiable risk of causing a fire (2) he or she ignores that risk and (3) ignoring the risk is a gross deviation from what a reasonable person would have done in the same situation (CALCRIM 1530.)
Reckless: Voluntary Intoxication. A person acts recklessly when (1) he or she does an act that presents a substantial and unjustifiable risk of causing a fire but (2) he or she is unaware of the risk because he or she is voluntarily intoxicated. Intoxication is voluntary if the defendant willingly used any intoxicating drink, drug, or other substance knowing that it could produce an intoxicating effect. (CALCRIM 1530.)
CALCRIM 1530; 1531; 1532

Punishment:
PC 452(a) Triad: 2-4-6 [GBI]
PC 452(b) Triad: 2-3-4 [Inhabited Property]
PC 452(c) Triad: 16-2-3 CDC or 6m CJ [Structure/Forest Land]
PC 452(d) Misdemeanor [Property]

PC 460(a) (First Degree Burglary)

Elements

(1) D entered an inhabited structure; and
(2) When he entered, he intended to commit a felony

(1) D entered an inhabited structure; and

(2) When he entered, he intended to commit a felony

Case Law/Statutes/Notes

Inhabited: structure is “currently being used for dwelling purposes” whether or not the residence is occupied. (People v. Meredith (2009) 174 Cal.App.4th 1257, 1266; PC § 459.)
Structure must be “immediately contiguous” to a house to be considered part of an inhabited dwelling. (People v. Rodriguez (2000) 77 Cal.App.4th 1101, 1107.)
- Contiguous means adjacent, adjoining, and in actual close contact. (People v. Jackson (2010) 190 Cal.App.4th 918, 924.)
Courts ask only if the area is “functionally interconnected” and “contiguous’ to the residence. (People v. Thorn (2009) 176 Cal.App.4th 255, 262.)
- Functionally interconnected means used in related or complimentary ways. (People v. Kasrawi (2021) 65 Cal.App.5th 751, 764.)
Specific Rooms/Structures:
- Laundry room in apartment building inhabited dwelling. (People v. Woods (1998) 65 Cal.App.4th 345, 347-348.)
- Carport at base of apartment building inhabited dwelling. (People v. Thorn (2009) 176 Cal.App.4th 255, 262.)
  - Resident Guest Carport located below condos OK. (People v. Kasrawi (2021) 65 Cal.App.5th 751, 765.)
- Hotel rooms (People v. Villalobos (2006) 145 Cal.App.4th 310, 321.)
- Hospital rooms. (People v. Fond (1999) 71 Cal.App.4th 127, 131.)
- Fenced uncovered yard area is not inhabited dwelling. (People v. Chavez (2012) 205 Cal.App.4th 1274, 1283.)
- Detached garage is not an inhabited dwelling. (Corona v. Superior Court (2021) 65 Cal.App.5th 950.)
  - But detached garage connected by the roof is inhabited dwelling. (People v. Moreno (1984) 158 Cal.App.3d 109, 112.)
- Attached garage is OK. (People v. Fox (1997) 58 Cal.App.4th 1041.)
- Apartment basement and garage used for storage OK. (People v. Zelaya (1987) 194 Cal.App.3d 73, 76.)
Entry.
- In general, the roof, walls, doors, and windows constitute parts of a building’s outer boundary, the penetration of which is sufficient for entry. (Magness v. Superior Court (2012) 54 Cal.4th 270, 273.)
- Window Screen. “[P]enetration into the area behind a window screen amounts to an entry of a building within the meaning of the burglary statute.” (People v. Valencia (2002) 28 Cal.4th 1, 13, disapproved on other grounds in People v. Yarbough (2012) 54 Cal.4th 889, 894.)
- Entry vis-a-vis an Instrument.
  - It has long been settled that the slightest entry by any part of the body or an instrument is sufficient .” (People v. Goode (2015) 243 Cal.App.4th 484, 489.)
  - “For an entry to occur, a part of the body or an instrument must penetrate the outer boundary of the building.” (Magness v. Superior Court (2012) 54 Cal.4th 270, 273.)
  - “It is important to establish reasonable limits as to what constitutes an entry by means of an instrument for purposes of the burglary statute.” (People v. Davis (1998) 18 Cal.4th 712, 719.)
  - “A person, a foot, a hand, or a tool can “enter” a house…[and] something that is outside must go inside for an entry to occur.” (Magness v. Superior Court (2012) 54 Cal.4th 270, 279.)
  - Tire Iron Wedged 1 inch Past Door. Held, entry vis-a-vis instrument. (People v. Moore (1994) 31 Cal.App.4th 489, 492.)
  - Hand Through Open Screen Door. Sufficient for entry. (People v. Hendrix (2022) 13 Cal.5th 933, 950 fn. 1.)
  - Opening Screen Door or Window With Screwdriver. “The opening of a screen door or window is deemed a burglarious breaking.” (People v. Nible (1988) 200 Cal.App.3d 838, 845.)
    - D used screwdriver to pry window screen from frame. (Ibid.)
  - Behind Window Screen. “[P]enetration into the area behind a window screen amounts to an entry of a building within the meaning of the burglary statute.” (People v. Valencia (2002) 28 Cal.4th 1, 13, disapproved on other grounds in People v. Yarbough (2012) 54 Cal.4th 889, 894.)
  - Opening Garage Door. Held, no entry vis-a-vis instrument. (Magness v. Superior Court (2012) 54 Cal.4th 270, 279.)
Floating Home (H&S § 18075.55(d)):
- Designed & built to be used as a stationary waterborne residential dwelling
- Has no mode of power of its own
- Dependent for utilities upon a continuous utility linkage to a source originating on shore
- Has a permanent continuous hookup to a shoreside sewage system
Felonious Intent
- Felonious Intent – Utilities. Entry with intent to use the home’s utilities may form the basis for a burglary conviction. (In re Leanna W. (2004) 120 Cal.App.4th 735, 742.)
  - Burglary where D entered home with intent to take a shower. (People v. Martinez (2002) 95 Cal.App.4th 581, 584-585.)
  - Burglary where D entered home for purpose of making unauthorized long-distance telephone calls. (People v. Dingle (1985) 174 Cal.App.3d 21, 29.)
- Felonious Intent After Entry. A burglary is committed even when D first forms the intent to enter a room inside a home to commit a felony only after he has already entered the house without any felonious intent. (In re M.A. (2012) 209 Cal.App.4th 317, 321.)
  - Entry into a bedroom within a single-family house with the requisite intent is sufficient even if that intent was formed only after entry into the house. (People v. Sparks (2002) 28 Cal.4th 71, 86-87.)
Burglarizing Own Home
- In general, D cannot be guilty of burglarizing his own home. (People v. Gauze (1975) 15 Cal.3d 709, 714.)
- To sustain a burglary conviction under such circumstances, “the People must prove that a defendant does not have an unconditional possessory right to enter his or her family residence.” (People v. Smith (2006) 142 Cal.App.4th 923, 930; People v. Davenport (1990) 219 Cal.App.3d 885, 892.)
- D moved out 3 weeks prior to crime. Held, sufficient evidence for instruction on felony murder based on burglary. “One who enters a room or building with the intent to commit a felony is guilty of burglary even though permission to enter has been extended to him personally or as a member of the public…since defendant had moved out of the family home three weeks prior to the crime, he could claim no right to enter the residence of another without permission.” (People v. Sears (1965) 62 Cal.2d 737, 746, overruled on another ground in People v. Cahill (1993) 5 Cal.4th 478, 510, fn. 17.)
- TRO to SA from family home. Held, sufficient evidence for burglary conviction. “[A]lthough defendant had a possessory interest in the family home, he did not possess the right to enter as an occupant when [Victim] was present.” (People v. Smith (2006) 142 Cal.App.4th 923, 932.)
- Moved out of community property. Held, sufficient evidence for burglary conviction because defendant did not have unconditional possessory interest in an apartment that that was leased by both D & V. (People v. Ulloa (2009) 180 Cal.App.4th 601, 610.)
- Moved out and gave up key to house. Held, sufficient evidence for burglary conviction because D gave up his right to possessory interest in house. (People v. Gill (2008) 159 Cal.App.4th 149, 161.)
CALCRIM 1700; 1701.

Punishment: Triad 2-4-6 // Serious Felony; If Person Present, Violent Felony

PC 460(b) (Second Degree Burglary)

Elements

(1) D entered a building/room within a building/locked vehicle
(2) When he entered a building/locked vehicle, he intended to commit a felony AND
(3) EITHER:
- OPTION A: Value of the property taken was > $950; OR
- OPTION B: Structure D entered was noncommercial establishment; OR
- OPTION C: Structure was commercial establishment that D entered during non-business hours

(1) D entered a building/room within a building/locked vehicle

(2) When he entered a building/locked vehicle, he intended to commit a felony AND

(3) EITHER:

OPTION A: Value of the property taken was > $950; OR

OPTION B: Structure D entered was noncommercial establishment; OR

OPTION C: Structure was commercial establishment that D entered during non-business hours

Case Law/Statutes/Notes

Entry into Room.
- An area within a building or structure is considered a room if there is some designated boundary, such as a partition or counter, separating it from the rest of the building.
  - Office area set off by counters was a room for purposes of burglary. (People v. Mackabee (1989) 214 Cal.App.3d 1250, 1257-1258.)
- Entering an interior room that is objectively identifiable as off-limits to the public with intent to steal therefrom remains punishable as burglary. (People v. Colbert (2019) 6 Cal.5th 596, 608.)
- Each unit within a structure may constitute a separate “room” for which D can be convicted on separate counts. (People v. O’Keefe (1990) 222 Cal.App.3d 517, 521 (individual dormitory rooms].)
Entry into Locked Vehicle.
- Trunk. D enters a “locked” vehicle when the trunk lock is manipulated by a tool, such as a screwdriver. (People v. Toomes (1957) 148 Cal.App.2d 465, 465-467.)
- Locked Exterior Truck Compartment & Bins. D entered a “locked” vehicle when he cut a gate hasp and lock on victim’s exterior truck compartment and cut a padlock on bins attached to victim’s truck. (People v. Gray (2025) 109 Cal.App.5th 680.)
  - “[T]he locked, enclosed cargo areas of [] trucks fall within the scope of section 459.” (Ibid.)
CALCRIM 1700; 1701

Punishment: Triad 16-2-3

PC 466 (Burglary Tools)

Elements

(1) Possession by D
(2) of tools within the purview of the statute
(3) with the intent to use the tools for the felonious purpose of breaking or entering. (People v. Southard (2007) 152 Cal.App.4th 1079, 1084-1085.)

(1) Possession by D

(2) of tools within the purview of the statute

(3) with the intent to use the tools for the felonious purpose of breaking or entering. (People v. Southard (2007) 152 Cal.App.4th 1079, 1084-1085.)

Case Law/Statutes/Notes

Intent is “to use an instrument or tool to break or otherwise effectuate physical entry into a structure in order to commit theft or some other felony within the structure.” (In re H.W. (2019) 6 Cal.5th 1068, 1076.)
Constructive Possession. PC 466 prohibits a person from having burglary tools upon him or her or in his or her possession. (People v. Bay (2019) 40 Cal.App.5th 126, 136.)

Punishment: up to 180d CJ

PC 487 (Grand Theft)

Elements

(1) D took possession of property owned by someone else;
(2) D took the property without the owner’s consent;
(3) When D took the property he intended to deprive the owner of it permanently or to remove it from the owner’s possession for so extended a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property;
(4) D moved the property, even a small distance, and kept it for any period of time, however brief; AND
(5) The value of the stolen property is more than $950

(1) D took possession of property owned by someone else;

(2) D took the property without the owner’s consent;

(3) When D took the property he intended to deprive the owner of it permanently or to remove it from the owner’s possession for so extended a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property;

(4) D moved the property, even a small distance, and kept it for any period of time, however brief; AND

(5) The value of the stolen property is more than $950

Case Law/Statutes/Notes

Statutory Breakdown:
- PC 487(a): Grand Theft of Personal Property
- PC 487(c): Grand Theft of Personal Property from the Person of Another
- PC 487(d)(2): Grand Theft of Firearm
Value of Stolen Property: Fair Market Value. The value of property is thee fair market value of the property. Fair market value is the highest price the property would reasonably have been sold for in the open market at the time of, and in the general location of, the theft.
- See Theft Valuation in Relevance for more case law interpreting stolen property valuations.
Value of Stolen Property: Aggregating Multiple Thefts. If value of … personal property taken exceeds $950 over the course of distinct but related acts … the value of the … personal property taken may properly be aggregated to charge a count of grand theft, if the acts are motivated by one intention, one general impulse, and one plan. (PC 487(e).)
- Evidence of acts motivated by one intention:
  - Evidence that the acts involve the same defendant or defendants
  - Thefts are substantially similar in nature
  - Thefts occur within a 90-day period. (PC 487(e).)
Utilities. The taking of property can include its consumption or the use of utilities. (CALCRIM 1800.)
CALCRIM 1800; 1801

Punishment: Triad 16-2-3

PC 496(a) (Receiving Stolen Property)

Elements

(1) Possession. D bought/received/sold property that had been stolen
(2) Knowledge. When D bought/received/sold the property, he knew that the property had been stolen
(3) Value. Value of property was more than $950 (Felony only)

(1) Possession. D bought/received/sold property that had been stolen

(2) Knowledge. When D bought/received/sold the property, he knew that the property had been stolen

(3) Value. Value of property was more than $950 (Felony only)

Case Law/Statutes/Notes

Mistake of Fact. Viable defense. (People v. Speck (2022) 74 Cal.App.5th 784, 791.)
CALCRIM 376: Possession of Recently Stolen Property as Evidence of a Crime
- Very useful instruction. If factfinder concludes:
  - D possessed property; AND
  - Property was recently stolen; AND
  - Supporting evidence tends to prove D’s guilt, THEN
  - -> Factfinder may conclude evidence is sufficient to prove D committed offense.
- Recently Stolen
  - It is for the jury to conclude what time period qualifies as “recent.”
  - 4.5 months. (People v. Anderson (1989) 210 Cal.App.3d 414.)
  - 9 months. (People v. Lopez (1954) 126 Cal.App.2d 274.)
- Supporting Evidence. Need only be slight and need not be enough by itself to prove guilt. Examples:
  - False, contradictory, or inconsistent statements; Attributes of possession; Opportunity to commit the crime; Consciousness of guilt, failure to explain possession of property; Flight after arrest; Sale of property under a false name and at an inadequate price; Sale of property with identity marks removed; Modification of the property; Attempting to throw away the property
- Instruction does not undermine the presumption of innocence nor violate due process. (People v. Solorzano (2007) 153 Cal.App.4th 1026.)
CALCRIM 1750; 1751

Punishment: Triad 16-2-3

PC 529(a)(3) (False Personation)

Elements

(1) D falsely impersonated another person in other person’s private or official capacity; AND
(2) While falsely impersonating that person, D:
- (a) posted bail for anyone in any proceeding
- (b) (i)Verified, published, acknowledged, or proved, in the name of that person, any written document; AND (ii) Intended that the document be used as though it were authentic; OR
- (c) Did an act that, if done by the person being falsely impersonated, might cause that person to be liable in a lawsuit/prosecution or to pay any amount of money

(1) D falsely impersonated another person in other person’s private or official capacity; AND

(2) While falsely impersonating that person, D:

(a) posted bail for anyone in any proceeding

(b) (i)Verified, published, acknowledged, or proved, in the name of that person, any written document; AND (ii) Intended that the document be used as though it were authentic; OR

(c) Did an act that, if done by the person being falsely impersonated, might cause that person to be liable in a lawsuit/prosecution or to pay any amount of money

Case Law/Statutes/Notes

Specific Intent. D must have the specific intent to obtain a benefit for himself or cause another to become liable for prosecution or pay a sum of money. (People v. Robertson (1990) 223 Cal.App.3d 1277, 1281-1282.)
Real Person. Statute only applies to impersonations of real persons. (People v. Chardon (1999) 77 Cal.App.4th 205, 214.)
Lesser Included Offense. PC 148.9(a) is lesser included. (People v. Robertson (1990) 223 Cal.App.3d 1277, 1283.)
CALCRIM 2044.

Punishment: Triad 16-2-3

PC 530.5(a) (Unauthorized Use of PII)

Elements

(1) D willfully obtained someone else’s personal identifying information
(2) D willfully used that information for an unlawful purpose
(3) D used the information without the consent of the person whose identifying information he was using

(1) D willfully obtained someone else’s personal identifying information

(2) D willfully used that information for an unlawful purpose

(3) D used the information without the consent of the person whose identifying information he was using

Case Law/Statutes/Notes

Personal identifying information: see PC 530.55(b)
- Includes name, address, telephone number, health insurance number, SSN, mother’s maiden name, PIN, state/federal driver’s license, etc.
Must be a real person. (PC 530.55(a).)
D need not know PII belongs to real person. (People v. Zgurski (2021) 73 Cal.App.5th 250, 266.)
CALCRIM 2040.

Punishment: Triad 16-2-3

PC 530.5(c)(1), (c)(3) (Fraudulent Possession of PII)

Elements

PC 530.5(c)(1) Elements
- (1) D acquired or kept personal identifying information of another person
- (2) D did so with the intent to defraud another person
PC 530.5(c)(3) Elements
- (1) D acquired or kept personal identifying information of ten or more persons
- (2) D did so with the intent to defraud another person

PC 530.5(c)(1) Elements

(1) D acquired or kept personal identifying information of another person

(2) D did so with the intent to defraud another person

PC 530.5(c)(3) Elements

(1) D acquired or kept personal identifying information of ten or more persons

(2) D did so with the intent to defraud another person

Case Law/Statutes/Notes

Intends to defraud if he intends to deceive another person in order to cause a loss of money/goods/services, or to cause damage to a legal, financial, or property right.
Personal identifying information: see PC 530.55(b)
Must be a real person. (PC 530.55(a).)
CALCRIM 2041.
Practice Tip: Need to prove there were ten real people. If unsuccessful contact, can run certified DMV printout for the victims. Circumstantial evidence they are a real (not fictitious) person

Punishment: Triad 16-2-3

PC 594(b)(1) (Vandalism)

Elements

(1) D maliciously damaged or destroyed real/personal property not her own
(2) The amount of damage caused by the vandalism was $400 or more

(1) D maliciously damaged or destroyed real/personal property not her own

(2) The amount of damage caused by the vandalism was $400 or more

Case Law/Statutes/Notes

Vandalism: Damaging Property “not her own”. Damaging community property inside the martial home can constitute a vandalism. (People v. Wallace (2004) 123 Cal.App.4th 144.)
CALCRIM 2900; 2901

Punishment: Triad 16-2-3

PC 602(m) (Trespassing)

Elements

(1) D willfully entered land/building belonging to someone else without consent of owner
(2) D occupied the land/building without the consent of the owner
(3) D occupied some part of the land/building continuously until removed.

(1) D willfully entered land/building belonging to someone else without consent of owner

(2) D occupied the land/building without the consent of the owner

(3) D occupied some part of the land/building continuously until removed.

Case Law/Statutes/Notes

Occupying Element: requires proof of a “nontransient, continuous type of possession.”
- D camping overnight on private property without permission, insufficient. (People v. Wilkinson (1967) 248 Cal.App.2d Supp. 906, 910.)
- Staying in an unauthorized area for “somewhere between one hour and several hours” held to be transient use of property not constituting the “occupying” element. (In re Y.R. (2014) 226 Cal.App.4th 1114, 1120-1121.)
CALCRIM 2931.

Punishment: up to 180d CJ

PC 666.1 (Multiple Theft Offender)

Elements

(1) D commits petty theft, shoplifting, or offense enumerated in PC 666.1(a)(2)
(2) D has two or more prior convictions for petty theft, shoplifting, or offenses enumerated in PC 666.1(a)(2)
- Prior convictions can be felony or misdemeanors
- No washout period for priors

(1) D commits petty theft, shoplifting, or offense enumerated in PC 666.1(a)(2)

(2) D has two or more prior convictions for petty theft, shoplifting, or offenses enumerated in PC 666.1(a)(2)

Prior convictions can be felony or misdemeanors

No washout period for priors

Case Law/Statutes/Notes

PC 666.1(a)(2) Enumerated Offenses:
- Petty theft (PC 488; PC 490.2); Grand theft (PC 487; PC 487h; PC 484); Theft from elder or dependent adult (PC 368); VC 10851(a); Burglary (PC 459); Carjacking (PC 215); Robbery (PC 211); Receiving Stolen Property (PC 496); Shoplifting (PC 459.5); Identity theft & mail theft (PC 530.5)
Priors pled & proven at PH.
Became operative: 12/18/24

Punishment: Triad 16-2-3 1170h // Second Conviction Triad 16-2-3 CDC