People v. Burley

California Court of Appeal May 2, 1938 No. Crim. 3087Published

Before: Doran

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Holding. A structure that is enclosed by four walls and a roof qualifies as a building under California's burglary statute, regardless of whether it is permanently affixed to the realty.

Issues

Whether a popcorn stand mounted on wheels constitutes a 'building' or 'structure' under Penal Code section 459.

Disposition. Affirmed; appeal from sentence dismissed.

Quotations verified verbatim against the opinion

“a house, in the sense of the statute in question herein, is held to he “any structure which has walls on all sides and is covered by a roof””

“there are no words in the statute to indicate a legislative intent to limit such offense to the unlawful entry of structures that are a part of the realty.”

DORAN, J.

Defendant, who was charged in an information with the crime of burglary, was adjudged guilty of

[214]

burglary of the second degree by the court. The appeal herein is from the judgment and sentence and from an order denying a motion for a new trial.

Defendant was accused of entering the store and building of one William Field. The evidence reveals that the store building was a comparatively small structure wherein the owner engaged in the business of selling popcorn, candy, cigarettes and the like. The aforesaid structure was mounted on small wheels approximately 4 to 8 inches in diameter and was located on a lot adjoining a theater in Huntington Park. It measured 8 feet by 10 feet, was a little over 7 feet in height, and was made of welded steel plates, consisting of floor, four walls and roof. It was entirely enclosed, and contained a door and two windows. The stand or store had been located continuously at the same place for approximately five months, and a monthly rental was paid for the space.

Appellant’s sole contention on appeal is, “that the said popcorn stand does not constitute a building or structure”, and therefore does not come within the terms of section 459 of the Penal Code, which defines burglary as follows:

“Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, railroad car, mine or any underground portion thereof with intent to commit grand or petit larceny or any felony is guilty of burglary.”

It is urged that the trial court apparently relied upon the authority of

People

Coffee,

52 Cal. App. 118 [198 Pac. 213], which authority, appellant argues, furnishes no support for respondent’s contention that the building in question meets the requirements of section 459 above quoted. In that connection appellant contends that a building or structure, to come within the meaning of the definition of burglary, unless it is a railroad car, must be permanently affixed to the realty.

People v. Burley

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DORAN, J.

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