Is it robbery or is it burglary? | SierraSun.com
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Is it robbery or is it burglary?

A man’s home is his castle. You don’t hear it very often, but it’s also true that a woman’s home is her castle. Can’t ignore political correctness.

And because we reside in our castles, our sacred spaces, the crime of burglary was put on the books. The penalties for a “burg” are generally steeper than for a robbery-taking from a person.

The mention of a “burg” brings back memories, not necessarily fond ones. In the old days when I was a young lawyer ” I’m talking the ’70s ” I handled all types of cases, including criminal matters, mostly pot defense and minor civil disobediences, including one notorious streaking case of the first-ever Truckee Rodeo. But that’s another story.



So I’m in my office meeting with a rather rough looking fellow, who had been arrested and accused of a crime ” burglarizing businesses downtown. He immediately proceeded to tell me how he had “burged” this place and “burged” that place and the “stupid pigs will never hang this one on me.” At about the time I was negatively sizing him up as a potential client, he was doing the same thing ” dubiously considering whether the bright-eyed, green lawyer looking at him was his best “get out of jail” card.

I asked him to wait a minute. I went into the adjoining office and told my partner at the time, Dale Wood, I had the perfect client for him as a veteran defense attorney. I introduced the “burg” client to Woody. The next thing I saw, about an hour later, they were “high-fiving” each other. The burglar (rather the man accused of burglary) was saying to Woody, “Woodrow, I’ll be back with the two grand. We’ll beat this rap.”



And that was my last criminal case.

Now, where were we? That’s right, defining burglary.

Common law burglary is defined as “breaking and entering the dwelling house of another with the intent to commit a felony.” There are other definitions in California, but that is the definition we learned in law school ad nauseam.

Under burglary law, a person enters a dwelling if some part of his body or some object under his control penetrates the area inside the building’s outer boundary.

At times determining what is a breaking and entering gets quite ludicrous. Welcome to People v. Calderon.

(Sounds like two legislators). Eduardo Calderon and Robert Cruz bought a car together cobbling $1,200 for the down payment. Calderon got the car impounded, so Cruz had to pay $1,314 to get the car released, so he refused to let Calderon drive the car.

Did Calderon hire a lawyer? Did he initiate informal mediation? Did he write Cruz a letter requesting his money back or suggest they get together over lunch to discuss their disagreement ” which amounted to less than $600?

No. If he did, there wouldn’t be our case today, People v. Calderon.

Calderon and two buddies went to Cruz’s house at 3 a.m. and demanded $600. When Cruz wouldn’t let the knife-wielding gents in, one of them kicked in Cruz’s front door.

With that, Cruz bolted out the door of his one room place (but still a castle in the eyes of the law), getting knifed in the process. Cruz then ran to a friend’s house. I kid you not! I couldn’t make this stuff up.

I know what you law students are thinking: Was the breaking down of the door a breaking and entering of Cruz’s dwelling? A breaking yes, but an entering? Fact: It was unclear whether the foot of the person kicking in the door actually passed the door threshold (the house’s outer boundary). So the question is whether the door being kicked open was in itself an entering of the house.

The Court of Appeal discussed several “burglary” cases. In one, placing a forged check in the chute of the walk-up window of a check-cashing business was found not to be a sufficient entry for purposes of burglary. Likewise, inserting a stolen ATM card into an ATM machine was not an entry because in neither case were the building occupants put in fear. I.e. back to the castle theory.

The Court noted the depositing of a library book in a book drop is an entry but not a burglary but reaching into the book drop in an attempt to steal books would be a burglary.

Boy, the lawyers worked overtime on this case. In fact, none other than former O.J. prosecutor Marcia Clark represented Calderon. (With no better result).

The Court of Appeal upheld the jury’s determination kicking in the front door was an entry of Cruz’s dwelling ” whether the foot slightly broke the outer boundary of the house or not.

Off to prison for Calderon. Hopefully the prison library has books on anger management.


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