Salemme

I concur in the judgment and much of the opinion.

I add these words to stress the anomaly of the result.

Although the burglary statute, Penal Code section 459, is aimed at protecting a possessory interest of the occupant in property, neither the statute nor the cases which interpret it limit the offense to the situation in which that interest is invaded. 1 With minor exceptions the cases interpret section 459, which defines burglary, quite literally: “Every person who enters any [defined structure], with intent to commit. . . any felony is guilty of burglary.”

The consequences are visited upon the defendant in this case. The offense of sale of fraudulent securities ordinarily, as here, poses no threat to the security or other property interest of the occupant of the structure in which the offense fortuitously is committed. Nonetheless the entry of the structure with the intent to do so is burglary. By this measure a burglary would occur in most cases of a completed security fraud since the commission of the fraud is most likely conducted indoors in a structure within the compass of the burglary statute.

Because Penal Code section 654 would require the staying of the penalty…

This case poses the question whether defendant’s alleged entry into the home of an intended victim for the purpose of selling fraudulent securities constituted burglary. Defendant contends it did not because the purpose of our state’s burglary statutes is “to protect against dangers inherent in intrusion” and, on the facts of this case, “there could be no danger from the mere entry of [the victim’s] residence [for the purpose of selling fraudulent securities].” The People retort that defendant committed burglary when he entered the victim’s residence to commit a felony, sale of fraudulent securities (Corp. Code, §§ 25110, 25401, 25540), whether or not the entry presented an imminent threat of physical harm to the victim. In the People’s view, California’s burglary statutes (Pen. Code, §§ 459, 460) encompass an entry into a structure with the intent to commit any felony, not just “felonies of violence or felonies which may induce a violent response from the victim.”

For reasons which follow, we conclude that a person who enters a structure enumerated in Penal Code section 459 with the intent to commit *778 any felony is guilty of burglary except when he or she (1) has an…

This case poses the question whether defendant's alleged entry into the home of an intended victim for the purpose of selling fraudulent securities constituted burglary. Defendant contends it did not because the purpose of our state's burglary statutes is "to protect against dangers inherent in intrusion" and, on the facts of this case, "there could be no danger from the mere entry of [the victim's] residence [for the purpose of selling fraudulent securities]." The People retort that defendant committed burglary when he entered the victim's residence to commit a felony, sale of fraudulent securities (Corp. Code, §§ 25110, 25401, 25540), whether or not the entry presented an imminent threat of physical harm to the victim. In the People's view, California's burglary statutes (Pen. Code, §§ 459, 460) encompass an entry into a structure with the intent to commit any felony, not just "felonies of violence or felonies which may induce a violent response from the victim."

For reasons which follow, we conclude that a person who enters a structure enumerated in Penal Code section 459 with the intent to commit any felony is guilty of burglary except when he or she…