In a recent case, the primary question was what actually qualifies as a “burglary tool”. Penal Code §466 contains a description of tools and instruments that are likely to be used in a burglary. In this particular case, the defendant was found with a bag containing plastic gloves. The detective testified that in his opinion the bag and gloves were burglary tools in that the defendant used the gloves to avoid leaving fingerprints and the purpose of the bag was as an instrument to carry away stolen items. The defendant was convicted of various theft crimes, including Penal Code §466 which, in essence, is the crime of possession of burglary tools. As noted by a Napa criminal attorney, the 4^th District Appellate Court reversed and ruled against the prosecution holding that since Penal Code §466 lists specific tools and instruments, a violation of Penal Code §466 is limited to those particular items and/or similar items. The Court further indicated that having mere access to a tool that could be used in the course of a burglary is insufficient.

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Grand theft (Penal Code §487(c)) is a crime of theft requiring a “taking” of money or property “from the person of another”. In the recent case of People v. Geeter (2012), a jury rendered a “not guilty” verdict to someone accused of robbery and convicted him of grand theft. As noted by a Santa Rosa criminal attorney, the Appellate Court agreed that this was a correct decision. The alleged victim in the case tried to make a cash deposit, but the ATM rejected the cash deposit and before the victim had removed the cash from the ATM, defendant attacked the victim, causing the victim to leave without taking the money from the ATM. At a later point in time, the defendant took the money from the machine.

There was no evidence in the case showing that the defendant attempted to grab the money from the alleged victim after the machine rejected it. Although the victim had voluntarily given possession of the money to the ATM, there was no evidence that the victim regained physical possession of the money after the machine rejected it. When there is no “taking from the person of another” there is no grand theft.

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A longstanding proposition in criminal law requires an entry into a “building” to satisfy the crime of burglary. In California, Penal Code §459 actually requires the entry into a “building”. Case decisions discussing this issue have generally held that a burglary requires the entry into some type of a structure with four walls and a roof. This argument has been vigorously argued by Santa Rosa criminal defense attorneys, San Rafael criminal defense attorneys and Napa criminal defense attorneys.

In the case of People v. Chavez (2012), the Fifth Appellate District Court agreed that a fenced yard is not a building because it does not have a roof. Other state cases that were cited in the Court’s decision have commonly held that an uncovered yard is not a building in simple burglary cases. This Court’s decision was that the plain meaning of Penal Code §459 supports the idea that a fenced yard is not a building and as such does not satisfy the requirement of entry into a “building”.

A fenced yard cannot also be construed as an appurtenance of a building or something that is an integral part of a building such as a carport which could satisfy the building requirement. The argument to prosecutors from a Santa Rosa criminal defense attorney, a Napa criminal defense attorney and a San Rafael criminal defense attorney is: Don’t charge defendants with the crime of burglary unless and until there is evidence of entry into some type of a”building.” Otherwise, the crime may be a theft or an attempted theft, but not a burglary.

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A defendant was “held to answer” after a preliminary examination hearing and was headed to a jury trial on a first degree burglary charge. A burglary charge generally requires entry, regardless of how slight, into some type of a building. Part of the evidence in the case was that the defendant opened a garage door with a remote control device but never actually entered the garage. Similar arguments regarding lack of entry are often made by a Napa criminal lawyer, a Santa Rosa criminal lawyer and a Marin criminal lawyer.

Initially, a Court of Appeal held that the evidence presented at the preliminary hearing established only an attempted burglary because the defendant did not actually enter the garage. On appeal, in the case of Magness v. Superior Court (2012), the California Supreme Court agreed. It held that the slightest entry by a person’s body or something held by the defendant is a necessary component of a burglary charge. Here, the defendant was outside the building and used a remote control device to open the garage door but neither the defendant nor anything held by the defendant crossed the threshold of the garage. The Supreme Court held that a person who opens a door but does not enter the structure may be charged with attempted burglary, but not with a completed or actual burglary. This is a decision that is applauded by Napa criminal lawyers, Santa Rosa criminal lawyers and San Rafael criminal lawyers.

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Burglary is a theft crime that requires evidence of entry into some type of building such as a house, room, apartment, shop, warehouse, store, barn, tent, houseboat, or other dwelling that is capable of being inhabited. Generally, this means that the structure is designed for dwelling purposes whether it is occupied or not. This element qualifies a theft as a first degree burglary which carries a low-term imprisonment of two years, a mid-term of four years and a maximum term of six years in California. A Santa Rosa criminal defense attorney, a Napa criminal defense attorney, and a Marin criminal defense attorney will argue for the stricter interpretation.

In a recent case, People v. Chavez (2012), the court ruled that to sustain a conviction evidence was required of entry into a building that was defined as a structure that had four walls and a roof. The evidence in this case was that the defendant’s co-conspirator, Phillips, entered a fenced yard and stole gasoline from an old junk car. Chavez was stationed near the fenced area and helped carry the gasoline away but there was no evidence that the defendant entered into any type of building. thereby, eliminating the burglary charge.

At least one Marin criminal defense attorney has noted that numerous California cases dating back to the 1800′s that require the building to have four walls and a roof. Since the defendant in this case was convicted of conspiracy to commit burglary and no actual burglary occurred, there was insufficient evidence to support the conviction for conspiracy and the verdict was reversed.

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