*1 Third [No. C008476. Dist. Jan. 1992.] PEOPLE,

THE Plaintiff and Appellant, SALEMME, SR., NICHOLAS ANDRE Defendant and Respondent. *3 Counsel General,

John K. Van de Richard B. Chief Assis- Attorney Iglehart, Kamp, General, General, tant Attorney Attorney Arnold O. Assistant Overoye, General, Attorneys Michael Weinberger, Bunting, Deputy Susan Rankin for Plaintiff and Appellant. & Tauman Defendant and

Holloway and Leonard K. Tauman for Respondent.

Melissa K. as Amicus Curiae on behalf of Defendant and Nappan Respon- dent.

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

For reasons which we conclude that a person who enters a structure enumerated Penal Code section 459 with the intent to commit any when he or she has an uncondi- burglary except tional to enter as the of that structure or possessory right occupant invited felonious who knows of and endorses entrant’s occupant case, intent. Since neither defendant’s alleged condition was satisfied this constituted even the act have no though may posed physical to the victim who had invited defendant securities danger purchase from him.

We also curiae defendant’s reject prosecu- contention of amicus tion for violating our state’s statutes is because precluded Corpora- his tions Code sections 25110 and 25401 are statutes specific covering conduct.

Facts *4 action, At the in the introduced preliminary examination this People that, occasions, evidence on two entered the of William defendant home Zimmerman with the intent him and that defend- to sell fraudulent securities ant twice succeeded in Zimmerman the securities. convincing purchase to $1,100. $9,900. The victim initially invested He later an additional spent information, amended was with two counts of By charged defendant Code, 459, (Pen. 460), two counts of secu- selling unregistered §§ Code, 25110), rities means and two counts of securities (Corp. selling § Code, of statements and misleading (Corp. omissions of material facts 25401). § 995,

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

Discussion

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

A our century ago, Supreme Court held that an into a store with entry intent to commit larceny constituted (People under section v. 459.

779 481, 1026].) P. that “common law (1892) Noting 482-484 Barry 94 Cal. [29 have but few elements and the of this state statutory burglary common,” is so language plain the court concluded: “the section 459] [of to be con- that rules of construction are not statutory required simple sulted; No words are tiie the face of the statute. meaning patent upon character, kind, time, manner of the the statute found qualifying intent; and it with a certain entry, save such must be accompanied conditions into would be for this court to other judicial legislation interpolate (Id., 482-483.) the section of the code.” at pp. any 83 this with the intent to years, plain meaning applied:

For constituted any commit a into structure enumerated section 459 People v. Sears burglary regardless entry. (E.g., the circumstances 737, 330, 938]; (1965) People 62 v. Cal.2d 746 401 P.2d Cal.Rptr. [44 225, 366, 430]; Deptula (1962) People 58 Cal.2d 228 373 P.2d Cal.Rptr. [23 8, 314]; 22 (1971) v. Brittain 142 People Cal. 10 P. v. Edwards [75 516]; (1955) 130 Cal.App.3d v. Garrow Cal.Rptr. [99 475].) P.2d Court Supreme statutory interpretation revisited issue of section 459 when the court whether question was with presented (People can his or her own person burglarize home. Gauze 1365].) Cal.3d “the Examining purposes P.2d *5 common law have been affected underlying they may how Code,” the enactment of the Penal the court concluded that the plain meaning of the statute is when to one applied inconsistent with its purpose 712-716.) burglarizing (Id., accused of his or her at The court pp. own home. reasoned as follows: 459, section that enacting “the has Legislature preserved concept law is designed to a in rather than protect right possessory property,

broadly preserve (15 any place from all crime.” Cal.3d at 713 p. [a possessory right is the to exert exclusion of right control over to the property Thus, (Black’s others (5th Law 1979) 1049)].) Dict. ed. a p. “burglary entry remains an building. which invades a a And it still possessory right in must be committed in (15 a who has by person right building.” no to be 714; at added.) Cal.3d p. italics

A has in person right a to be a he structure when or she has an uncondi- tional (as enter possessory right to where the accused had the right Gauze home, to enter his own even for a felonious has purpose) or where the person or expressly impliedly been invited to enter and does so for a reason. lawful “ (15 714.) Cal.3d at p. party who enters with the ‘[A] intention to commit He not one of the public an invitation. a enters without [larceny felony or] invited, refused admission he enter. Such a could be party nor is entitled to threshold, accom- after the was entry from the ejected premises at the ” Therefore, 483.) 94 Cal. at (Id., Barry, supra, p. at p. quoting plished.’ a felony theft or petty with the intent to commit a who enters a store person during regular he or she enters though convicted of even can be (15 at Cal.3d general public. while the to the open business hours store 713.) p. reasoning, Supreme conclude[d]

“Applying foregoing Court] [the home. His into the his own burglarizing defendant cannot be right possessory invaded no even for a felonious apartment, purpose, habitation; to enter right defendant had an absolute . . . More importantly, not be conditioned on It that could personal right ... was apartment. ‘refused Defendant could not be the consent of the defendant’s roommates. premises from the ‘ejected admission at the threshold’ of his or be apartment, not, commit a accordingly, He could after was ... accomplished.’ Barry, supra, 94 (15 Cal.3d at p. quoting his own home.” 483; added.) at p. Cal. italics later, holding reiterated that its

Four Court years Supreme Gauze to enter the unconditional right was on the fact the accused had an predicated of habitation. right and thus did not invade a possessory structure question one enters The court “The law after is that emphasized: [who Gauze be convicted felony] may structure with the intent to commit theft or a petty consent, an if he does not have provided even he enters with Pendleton possessory right (People unconditional to enter” v. 649]; added.) Cal.3d 599 P.2d italics Court Superior this the Court of Following premise, Appeal (Granillo) (1988) held that one Cal.Rptr. 316] who enters a structure with the intent cannot be con- to commit *6 victed of when invited in the who knows and burglary by occupant of Granillo, endorses the In entered an undercover intent. the accused felonious officer’s the knew the accused was apartment upon invitation of officer who in and entry of stolen he wanted to sell. The invitation possession property in were orchestrated the in an catch criminals the act and by police effort to recover stolen designed that “the law is to property. Commenting burglary harm,” possessory a the protect right property in intrusion and risk of against court it the concluded “would be to the basis of the contrary primary 1485; law” to find the burglary (Id., accused of at italics guilty burglary. p. added.) The court reasoned that this was not a situation where the occupant ignorant was of the accused’s felonious intent have refused and would admission at the threshold or the if ejected accused after the entry occupant Rather, the the with entry the officer consented to had known thereof. a but felony had the intent to commit not that the accused expectation only essence, In the inside. he in the once felony also that would fact commit that, commit a consent” to court held with “informed by entering occupant’s to enter the right apartment the accused had an unconditional felony, habitation. right thus did not invade a of possessory that, the is a breach of burglary We learn from these cases since in enters a structure enumerated a who occupant’s possessory rights, person except is section 459 with the intent to commit he to enter as the right when or she has an unconditional possessory in the who knows of by occupant of that structure or is invited occupant and endorses the felonious intent. Nevertheless, defendant ar-

Neither condition was satisfied this case. act no did not constitute because the gues alleged posed his entry in to danger negotiate to the victim who had invited defendant physical sale of securities.

It true that indicate of the purposes dicta and Granillo one Gauze safety California’s laws to protect against dangers personal is to 715; (Gauze, 15 Cal.3d at supra, p. created Granillo, “usual situation.” above, However, supra, 1485.) as noted at p. Thus, if is to there primary purpose protect possessory right property. an invasion of the die constitutes bur- occupant’s possessory rights, regardless of whether actual or exists. glary potential danger For enters a store with the example, who shoplifter surreptitiously intent to steal her clandestine effort to commits even his or though jacket anyone’s per- merchandise into a does not threaten slip necessarily sonal Defendant has not scenario from safety. distinguished shoplifting and, view, case this our there is no to do so. As logical way cases, defendant did not have an unconditional shoplifting possessory right Rather, to enter the victim’s victim’s residence. he did so with the allegedly consent, i.e., uninformed his lack felonious knowledge of defendant’s thereof, intent. Had the victim known he could have refused admission at the threshold ejected defendant after entry accomplished. Consequently, was defendant’s his alleged constituted of whether burglary regardless intent “to swindle the victim out him into misleading buying of money by securities” unqualified victim.1 posed physical danger effect, defendant would write into section 459 the requirement *7 must intend to perpetrator danger to commit a which a poses physical cases, shoplifting 1Aside from the upheld there are numerous other decisions which have commit felony posed convictions where the entries with the intent to theft or a no physical danger anyone. to The most illustrative example is Ravenscroft victim, This the the “any felony” by Legislature. rather than as specified statutes as is not of the interpretation compelled by purpose and impermissible judicial legislation. discussed above would constitute Moreover, a it creates an unworkable Whether a felonious entry poses test. to the victim is fact it not on the physical danger specific; depends particular detec- but for felony, sophistication perpetrator, potential on of the tion, and the if the felonious reactions of the victim and perpetrator It trans- detected. is not unreasonable to envision a fraudulent securities where, action the victim about upon probing questioning purchase, discovers the call the and is attacked illegality, attempts police, by such a Other than how is one to determine whether perpetrator. speculation, hand, threat existed in this On the there are residential case? other potential victim, which no to the as where the burglaries pose physical danger a are on vacation. perpetrator knowing away breaks into house occupants Would defendant because it no argue poses this is not a burglary simply threat to the victims? physical stated,

For the reasons we have the trial court erred aside setting burglary counts.

II (CACJ) has filed an California for Criminal Justice Attorneys behalf, under amicus curiae brief on defendant’s his contending prosecution Code, (Pen. 460) be “general” statutes precluded §§ cause 25110 and 25401 are statutes Corporations specific Code sections covering his conduct.2 The contention has no merit. when a criminal statute alone includes

Ordinarily, general standing statute, the same matter as a act is considered an criminal special special 827], in which the court held that the insertion of an automatic 639 [243 (ATM) larceny burglary. teller machine card into an ATM to effectuate constitutes 2Corporations provides: any person Code section 25110 “It is for to offer or sell unlawful (other any security subject in this state to Section in an issuer transaction than in a transaction underwriters, 25120), by through qualified whether or not or unless such sale has been under 25111, 25112, (a) (and Section or 25113 no order under Section 25140 or subdivision security Section 25143 is in effect with respect qualification) to such or unless such exempted 25100) transaction is under Chapter (commencing part.” with Section of this Corporations Code a provides: any person section 25401 “It is unlawful for to offer or sell security buy buy security any in this state or or offer to state written or in this means oral communication which includes an untrue statement of a material fact or omits to state made, material necessary fact in order to make light the statements in the of the circumstances made, they under which misleading.” were not Corporations Code section 25540 makes a violation of section alterna- punishable tively as a felony, misdemeanor or violation of section 25401 punishable by fine and/or imprisonment prison. in state

783 the general or after before passed whether it was to the act general exception 1, 494, 620 Cal.Rptr. (1980) Cal.3d 501 [170 28 (People v. Jenkins statute. 593].) P.2d 654 587]; (1954) [276 Cal.2d In re Williamson P.2d a by special Hence, statute is precluded a general under “[pjrosecution as, conflicts and thus same matter covers the when the statute general statute 690, with, 16 Cal.3d v. Ruster (People the statute.” special Jenkins, at 1269]; supra, also see 80 A.L.R.3d 548 P.2d Cal.Rptr. card to a stolen credit an accused used when 505.) For example, p. 484a, (b)(6) subdivision then-section violating purchases, thereby make cards, to prosecute had no power the People the misuse of credit proscribing statute, v. Swann (People 470. section forgery him under the general Ruster, 690.) 830]; supra, at p. also see legislative out carry ascertain and designed is a rule to This doctrine If from the entire 505.) it (Jenkins, supra, appears 28 Cal.3d at p. intent. necessarily will statute the enactments that a violation of special context of statute, the fact the general result in a violation of commonly or as the same ground much covering “has enacted a statute Legislature specific intended that the Legislature law is a indication general powerful a more discussed In scenario (Ibid.) the Swann alone to provision apply.” specific above, statute special that contemplated the Legislature unquestionably more means of the be violated by misuse of credit cards would governing statute, i.e., credit card the violator to misuse a order general forgery 502-503.) (Id., at pp. the card holder. must commonly forge signature Code Corporations A violation of same cannot be said here. result violation commonly or necessarily section 25110 or 25401 will not in which one numerous situations of the statutes. We can think of committing burglary. in the fraudulent securities without engage can sale of will be committed commonly For fraudulent securities violations example, violator, prosecu thus occupied by precluding on a owned or premises if that the violator even it can be shown tion statutes under fraudulent securities. entered the the felonious intent to sell premises with instances, I, in the decide to (See ante.) engage In the violator may other pt. ¿ter the structure he she has entered only sale of fraudulent securities that, in it cannot be said ultimately Surely, which violation occurs. Legislature Code sections 25110 enacting Corporations means of these laws would be breached unquestionably contemplated and, thus, for intended a burglary prosecution violation preclude intent to sell fraudulent the act victim’s home with the entering the Legislature the crime of defining securities. To the contrary, be any felony charged the intent to commit could specified that an with as a burglary. extreme, CACJ’s would California’s argument nullify

Taken to its logical instance of enters with every burglary, perpetrator burglary statutes. *9 784 instance,

the intent to commit a In each specific crime. the intended crime cannot be committed without first Would CACJ committing burglary. argue the Legislature intended that one cannot be convicted of burglary for enter- ing a residence with the intent to commit theft where petty the perpetrator and, thus, accomplishes the theft can be under the prosecuted more specific theft statute which carries a lesser than residential penalty Such an burglary? 223, absurd (In construction must be re Head 42 rejected. Cal.3d 232 184, 65]; 721 P.2d Cal.Rptr. People [228 v. Catelli 227 1434, 452].) 1448-1449 Cal.Rptr. [278

If CACJ’s were reasoning one adopted, could be with charged only when that person unsuccessful the theft or accomplishing felony absurd, for which he or she entered the structure. Such a result would be we must that the “presume Legislature (Head, did not intend absurd results.” Yet, supra, 42 232.) Cal.3d at p. that is what CACJ in effect contends that, suggesting because the has enacted Legislature specific Corporations securities, Code sections proscribing the fraudulent sale of it intended to preclude burglary prosecution when the for the illegal entry is the fraudulent sale of securities and this objective is achieved. We cannot agree. has Legislature enacted numerous statutes acts of outlawing specific misconduct. Because it has enacted statutes crimes does proscribing specific not indicate the Legislature intended to preclude burglary prosecution when a burglar successfully crime once inside the completes specific structure. Amicus curiae’s contention the fact that ignores California’s bur statutes have glary a purpose from that of separate outlawing statutes felonious conduct the intruder intends to commit once inside the structure. I, (See ante.) Our pt. state’s statutes are designed to protect tiie possessory right to regardless of the property nature of the theft or Hence, the intruder intends to commit inside the structure. burglary sections are specific statutes which address a matter subject sepa rate and distinct from violations of California’s fraudulent securities statutes. two statutes

“[W]here do not purport to deal with the same subject matter, there is no need to resort to the rule of construction that the more specific statute controls. The statutes simply do not cover the same subject matter and therefore are not (Shoemaker conflict.” Myers (1990) v. 1,21 Cal.3d Cal.Rptr. 1720]; 801 P.2d A.L.R.4th Barrowclough (1974) 39 Cal.App.3d 852].)

Disposition

The order setting aside the burglary counts pursuant to section reversed.

Carr, J., concurred. BLEASE, and much of the Acting opinion. P. J. concur the judgment I I add these words to stress the of the result. anomaly statute, is aimed at

Although pro- Penal Code section *10 in neither the statute interest of the tecting possessory occupant property, in nor the cases which it limit the offense to the situation which interpret interest is With section interpret invaded.1 minor the cases exceptions which enters any defines who burglary, quite literally: “Every person [de- structure], fined burglary.” with intent to commit. . . of any felony The in The are visited the defendant this case. offense consequences upon here, sale of fraudulent securities as no threat to ordinarily, poses in or other interest of the of the structure which security property occupant the offense is committed. Nonetheless the of the structure fortuitously with the intent occur to do so is this measure a would burglary. By burglary in most cases of a of the fraud since the commission completed security fraud is most in within the likely conducted indoors a structure compass statute.

Because Penal Code section 654 would of the staying penalty require offense, for the lesser for the offense would be penalty applied if only than the result greater target offense. The random of such a workings strike me as That if interests arbitrary. could be avoided the specific property its occupant personal safety and the of the protection property contents were made I of the statute. differ with my colleagues their apparent conclusion that the sale of fraudulent securities to an who unsuspecting occupant consented to the invades a property interest in the structure entered. as Another result of offenses such sweeping fraud into the security domain of is the of the untoward application (§ 667) serious felony sanctions and the limitation on discretion to grant (§ 462) probation which attend of an inhabited These dwelling. heavy penalties are trivialized when are because of the they imposed hap- offense, locale, that an penstance no more reason of the occurs culpable by in a residence.

Nevertheless, the statute and the case law are contrary. Supreme Court has carved out an from the Penal exception language of Code section (“any felony”) cases where only the entrant has an interest That is made property. People (1975 clear v. Pendleton Cal.Rptr. 649]), P.2d which states that enters a structure with the anyone who intent to commit a therein be convicted of he may burglary “provided does not have an unconditional to enter.” possessory right [the entrant] 1References to a section are to the Penal Code unless otherwise specified.

(25 added.) Cal.3d at Superior (Granillo) italics Court p. (1988) 205 adds a further exception 316] where the “victim” endorsed the intent felonious of the entrant. Neither here, circumstance is and I present am to conclude that compelled section order aside the setting burglary counts must be reversed.

Respondent’s for review the denied petition Court was Supreme April J., Mosk, 1992. was of the that the opinion granted. should be peition