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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. James Matthew GAUZE, Defendant and Appellant.

Cr. 6715.

Decided: December 17, 1974

Appellate Defenders, Inc. by Paul Bell, San Diego, under appointment by the Court of Appeal, for defendant and appellant. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., A. Wells Petersen and Karl J. Phaler, Deputy Attys. Gen., for plaintiff and respondent.


Defendant James Gauze was charged by an information with burglary (Pen.Code § 459) and assault with a deadly weapon (Pen.Code § 245(a)). The information alleged the burglary was (1) committed upon an inhabited building in the nighttime, (2) while armed with a deadly weapon, and (3) a person was assaulted during the commission of the burglary. An allegation of use of a firearm in the commission of the felony (violation of Pen.Code § 12022.5) was also included.

The trial judge declared a doubt as to the sanity of Gauze and appointed psychiatrists to examine him pursuant to Penal Code section 1368. A jury trial on the sanity issue was waived and the court found him sane. After a jury trial on the charges Gauze was found guilty on both counts, each special allegation was found true and the degree on the burglary charge was fixed at first degree. He was sentenced to prison, and the execution of the sentence on the assault count was stayed during service of the sentence on the burglary count. Gauze appeals.

On March 17, 1973, defendant Gauze, Richard Miller and Charles Mosher lived together in an apartment in Chula Vista. At about 4:30 on that afternoon while in the apartment of a friend, Robert Bolton, Miller and Gauze got into an argument. Gauze told Miller, ‘Get your gun because I am going to get mine.’ Miller left first to return to his apartment and took a shower. Gauze left about an hour and a half later. He went to the home of Mrs. Donna Cox where he borrowed a shotgun and one shell. He then went to his apartment where he found Miller, pointed the gun at him and pulled the trigger. Miller was hit in the side and the left arm. As a result of this incident Miller lost the use of his arm. Gauze then returned the gun to Mrs. Cox and informed her he had shot Miller. She immediately checked the gun's chamber and determined it had been fired.

Gauze contends it was error to find him guilty of burglary when the entry, an essential element of the crime, was of his own dwelling. He asserts there is no authority for the proposition burglary can be committed when someone enters the home in which he is currently living.

At common law, burglary was the breaking and entering of the dwelling house of another, in the nighttime, with the intent to commit some felony within the house, whether the felonious intent be executed or not (People v. Barry, 94 Cal. 481, 482, 29 P. 1026, citing Russell on Crimes, 785). The elements of the offense have been greatly changed by statute. (See 25 S.C.L.R. 75.) At this date Penal Code section 459 reads 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, trailer coach as defined by the Vehicle Code, vehicle as defined by said code when the doors of such vehicle are locked, aircraft as defined by the Harbors and Navigation Code, mine or any underground portion thereof, with intent to commit grand or petit larceny or any felony is guilty of burglary.

Since the enactment of the Penal Code, California does not recognize common law crimes but only those defined in a statute, ordinance or regulation (Keeler v. Superior Court, 2 Cal.3d 619, 631–632, 87 Cal.Rptr. 481, 470 P.2d 617; In re Harder, 9 Cal.App.2d 153, 155, 49 P.2d 304; People v. Whipple, 100 Cal.App. 261, 262, 279 P. 1008). The concept of entering the premises ‘of another’ was conspicuously omitted in California's description of the crime.1 Similarly, where there is a requirement there be a ‘breaking,’ one could not ‘break’ into a home to which he had a right to enter. It is upon these concepts the common law cases were able to imply not only that someone else dwells there but also that the alleged burglar does not.2 While there is respected secondary authority which indicates the entry must be of a building in possession of another, the only authorities cited are textbooks which speak of common law requisites (1 Witkin, California Crimes, Crimes Against Property, § 457(a), p. 419).

A case clearly in point is People v. Sears, 62 Cal.2d 737, 44 Cal.Rptr. 330, 401 P.2d 938. There the defendant was separated from his wife and had moved from the family residence three weeks earlier. No restraining order was in effect relative to his access to the family home. The family home thus was not necessarily the dwelling ‘of another.’ The defendant had returned to the house carrying a reinforced steel pipe under his shirt and during the course of an argument struck and killed his daughter and struck his wife and mother-in-law with the pipe. He was found guilty of murder in the first degree and two counts of attempted murder. The conviction was reversed because of the admission of his confession made before he received the Miranda warning. The court, however, discussed the felony-murder (burglary) instruction and stated on retrial the instruction was proper since the jury could infer the requisite intent to commit an assault with a deadly weapon existed when he entered the house. The court then stated in People v. Sears, supra, 62 Cal.2d 737, at page 746, 44 Cal.Rptr. 330, at page 336, 401 P.2d 938, at page 944:

‘We reject defendant's contention that the court should not have given the burglary instruction because defendant, as Clara's husband, had a right to enter the family home. One who enters a room or building with the intent to commit a felony is guilty of burglary even though permission to enter has been extended to him personally or as a member of the public. (People v. Deptula (1962) 52 [sic] Cal.2d 225, 228, 23 Cal.Rptr. 366, 373 P.2d 430.) The entry need not constitute a trespass. (People v. Deptula, supra, at 228, 23 Cal.Rptr. 366, 373 P.2d 430; People v. Wilson (1958) 160 Cal.App.2d 606, 608, 325 P.2d 106; People v. Garrow (1955) 130 Cal.App.2d 75, 83, 278 P.2d 475.) Moreover, since defendant had moved out of the family home three weeks prior to the crime, he could claim no right to enter the residence of another without permission. Even if we assume that defendant could properly enter the house for a lawful purpose (cf. Civ.Code, § 157), such an entry still constitutes burglary if accomplished with the intent to commit a felonious assault within it.’ (Emphasis added.)3

No authority contradicts this decisional law in California.

The instant case involves a joint occupancy, by victim and assailant, giving the assailant some right to be in the building where the assault was committed.4 This aspect of the case, however, makes it analogous to the line of cases involving an invitation by a property owner to an employee or by the proprietor of a store to the public for the purpose of conducting lawful business there. (See People v. Deptula, 58 Cal.2d 225, 228, 23 Cal.Rptr. 366, 373 P.2d 430; People v. Barry, supra, 94 Cal. 481, 482, 29 P.1026.)

Consent to enter is often set up as a defense to burglary and we recognize that as an issue since Gauze clearly had consent to enter his own apartment. It could be argued even the victim gave Gauze consent to enter the apartment they shared and that consent would negate criminal liability (see 1 Witkin, California Crimes, Crimes Against Property, § 475(b) and (c), pp. 419–420).

People v. Barry, supra, 94 Cal. 481, 29 P. 1026, was one of the earliest of the cases considering this defense. It involved an entry by the defendant into a store during business hours. The court held the offense was complete on his entry with the requisite intent.

‘[C]ommon-law burglary and the statutory burglary of this state have but few elements in common, and consequently English cases give us but little light upon the question under examination. Even under the present section of the Penal Code many acts constitute burglary which but a few years ago were a different offense, or no offense whatever. As to the acts which shall constitute the crime of burglary, that is a matter left entirely to the policy of the legislature,, within its constitutional powers; and when that body has said that every person who enters a store with the intent to commit larceny is guilty of a burglary, the language is so plain and simple that rules of statutory construction are not required to be consulted; the meaning is patent upon the face of the statute. No words are found in the statute qualifying the character, kind, time, or manner of the entry, save that such entry must be accompanied with a certain intent; and it would be judicial legislation for this court to interpolate other conditions into the section of the Code.’ (People v. Barry, supra, 94 Cal. 481, 482–483, 29 P. 1026).

The court rejected the defendant's contention there was consent to enter, hence no burglary, stating:

‘[A] party who enters with the intention to commit a felony enters without an invitation. He is not one of the public invited, nor is he entitled to enter. Such a party could be refused admission at the threshold, or ejected from the premises after the entry was accomplished. If the presence of such a party in the store is lawful, the fact that he gained ingress openly and publicly through the front door rather than clandestinely by way of the skylight or the cellar is not material, and the result would be that no burglary could be committed in a store during business hours, regardless of the nature of the entry.’ (People v. Barry, supra, 94 Cal. 481, 483, 29 P. 1026, 1027.)

The authorities from states adhering to the common law definition of burglary were rejected.

The dissent in Barry, supra, suggest there should be a trespass but that theory has been rejected by a line of cases5 beginning with People v. Brittain, 142 Cal. 8, 75 P. 314, and continuing through People v. Sears, supra, 62 Cal.2d 737, 746, 44 Cal.Rptr. 330, 401 P.2d 938. Where the entry of a store building, for example, was found to be made with requisite intent, the fact an express or implied invitation to enter was given the general public (People v. Corral, 60 Cal.App.2d 66, 71, 140 P.2d 172) or to an employee (People v. Deptula, supra, 58 Cal.2d 225, 228, 23 Cal.Rptr. 366, 373 P.2d 430) has been held to be no bar to the conviction of burglary. Some authorities suggest consent must be negated (see 1 Witkin, California Crimes, Crimes Against Property, § 457(a), at p. 419), but we find no case which holds that essential; many expressly state such a finding unnecessary (People v. Deptula, supra, 58 Cal.2d 225, 228, 23 Cal.Rptr. 366, 373 P.2d 430; see also People v. Edwards, 22 Cal.App.3d 598, 602, 99 Cal.Rptr. 516; People v. Garrow, 130 Cal.App.2d 75, 83, 278 P.2d 475; People v. Corral, supra, 60 Cal.App.2d 66, 71, 140 P.2d 172).

The consent to enter which was given in those cases does not extend to an entry coupled with the criminal intent to steal or commit a felony (see People v. Brittain, supra, 142 Cal. 8, 10, 75 P. 314). Thus, even if we were to acknowledge consent to enter may have some relevance as negating the crime of burglary, we would also have to acknowledge the joint occupant of a building does not consent to the entry by his co-occupant with criminal intent.6 Gauze enjoyed the rights of a co-occupant as a result of an agreement with the other occupants and their consent to this joint entry would not be so broad as to include an entry for a felonious act.

The conclusion we reach is consistent with the underlying purposes of the burglary statute as expressed by the California Supreme Court. It protects persons within buildings, particularly dwellings, who are in greater peril than persons outdoors from intruders bent on stealing or engaging in other felonious conduct (People v. Wilson, supra, 1 Cal.3d 431, 440, 82 Cal.Rptr. 494, 462 P.2d People v. Talbot, supra, 64 Cal.2d 691, 703, 51 Cal.Rptr. 417, 414 P.2d 633 [overruled on another ground in People v. Wilson, supra, 1 Cal.3d at 442, 82 Cal.Rptr. 494, 462 P.2d 22]).

Gauze next contends the trial court interfered with counsel's right to control the litigation by appointing an attorney under circumstances which virtually compelled him to put on an untenable defense.

At the beginning of this prosecution Gauze was represented by John De Nora who was later relieved because of differences with Gauze concerning his present sanity. Tom Adler of Defenders, Inc. represented Gauze through the trial of the present sanity issue and he too requested he be relieved because of differences with Gauze. This was done and Richard Muir was appointed. It is now asserted Muir undertook the defense of Gauze under what he believed a court ordered mandate to follow Gauze's wishes in setting up the defense rather than his own good judgment. He contends this is a proper assumption by extracting a single sentence from a protracted discussion of the issues of present sanity, diminished capacity and the insanity plea. In the middle of his statement, Muir said:

‘Now, I am very much concerned about this because I determine it to be a mandate of the Court by appointing me on this case that I am to proceed according to Mr. Gauze's wishes.'7

Without requesting any statement from the court on the soundness of this ‘determination,’ counsel then stated he understood the law to be he had a right to raise again the issue of present insanity only under certain circumstances not present in Gauze's case and he took the court's attention to that issue. The court's silence during such a monologue cannot be deemed an implied acceptance of counsel's assumption.

The law is clear in California that the attorney representing a criminal defendant has the power to control the court proceedings (People v. Robles, 2 Cal.3d 205, 214–215, 85 Cal.Rptr. 166, 466 P.2d 710). The fact that a defendant and his counsel disagree on some aspect of the defense does not necessarily mean the attorney should be discharged although it should be considered a factor in a motion to discharge the attorney (People v. Robles, supra at 215, 85 Cal.Rptr. 166, 466 P.2d 710). No one should assume that the discharge of an attorney previously serving a defendant is, by itself, a mandate to the succeeding attorney that the case should be handled in any particular way or that counsel must abandon his own power of control of the case as provided by law.

Further, Gauze was not denied due process of law by his attorney's decision to base the defense on alibi rather than diminished capacity. The defense based on alibi in this case, as Gauze's own counsel recognized and stated on the record, would have an appearance of being inconsistent with a defense based on diminished capacity, and selecting one to the exclusion of the other is a sound trial tactic left to the discretion of counsel. Any error of judgment is neither a denial of due process nor denial of effective assistance of counsel (People v. Miller, 7 Cal.3d 562, 573, 102 Cal.Rptr. 841, 498 P.2d 1089).8

Judgment affirmed.


1.  To the extent of the interests of the co-occupant, however, it must be conceded Gauze did enter the premises ‘of another.’

2.  See Perkins on Criminal Law (2d ed.), 206, 207, where the development of the common law requirement that the burglary be of a dwelling ‘other than one's own’ is traced, citing Clarke v. Commonwealth, 66 Va. 908 (1874). The Clarke case is cited as authority for the proposition that if two or more are recognized as dwellers in the same dwelling, neither one can commit common law burglary therein.

3.  Counsel for Gauze argues this is merely dicta but we find it most persuasive since the court was directing the lower court on the matter of instructions to be used on retrial. The Sears case was later overruled (People v. Sears, 2 Cal.3d 180, 189, 84 Cal.Rptr. 711, 465 P.2d 847; People v. Wilson, 1 Cal.3d 431, 441, 82 Cal.Rptr. 494, 462 P.2d 22) but that was done on the basis of error in permitting a burglary based on an entry to commit a felonious assault to be used to make the act a felony murder, hence, murder in the first degree. The burglary instruction as such was not held improper nor was there language to reduce the force of the statements of the earlier Sears case on this question of the elements of a burglary.

4.  We are not called upon to determine whether a burglary could have been committed if the defendant had been the sole occupant of the building. We recognize the rights which the burglary statute was enacted to protect may not be present in such a case and a more difficult problem would be presented.

5.  See 93 A.L.R.2d 548.

6.  Worth noting is the fact California has not considered a case involving consent by the joint occupant to an entry by another person with knowledge that the person intends to commit a felony in the building (see People v. Talbot, 64 Cal.2d 691, 700, 51 Cal.Rptr. 417, 414 P.2d 633; overruled on another ground in People v. Wilson, supra, 1 Cal.3d 431, 442, 82 Cal.Rptr. 494, 462 P.2d 22).

7.  The statement was at best ambiguous and we are not certain the quoted sentence really made reference to anything more than general wishes for representation. We give counsel the benefit of the doubt, however, that it implies the full extent of Gauze's wishes in every aspect in the handling of the case.

8.  The court has taken no notice of any exhibits attached to the respondent's brief which were not in the record.

COLOGNE, Associate Justice.

GERALD BROWN, P. J., and WHELAN, J., concur.

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