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People v. Gauze, 15 Cal.3d 709, 542 P.2d 1365, 125 Cal.Rptr. 773

Facts

Defendant shared an apartment with Richard Miller and another person, giving him the right to enter at all times. After a quarrel with Miller, Gauze borrowed a shotgun and returned to the apartment, where he shot Miller. He was subsequently convicted of assault with a deadly weapon and burglary, with the burglary charge based on his entry into his own apartment with the intent to commit the assault.

Defendant shared an apartment with Richard Miller and a third person and thus had the right to enter the premises at all times. While visiting a friend one afternoon, defendant and Miller engaged in a furious quarrel. Defendant directed Miller ***774 **1366 to ‘Get your gun because I am going to get mine.’ While Miller went to their mutual home, defendant borrowed a shotgun from a neighbor. He returned to his apartment, walked into the living room, pointed the gun at Miller and fired, hitting him in the side and arm.

Issue

Can a person burglarize his own home?

1 Can a person burglarize his own home? That is the quandary which emerges in the case of James Matthew Gauze, who appeals from a judgment of conviction of assault with a deadly weapon ( Pen.Code, s 245, subd. (a) ) and burglary ( Pen.Code, s 459 ).

Rule

A burglary requires an entry that invades a possessory right in a building, and it must be committed by a person who has no right to be in the building.

Common law burglary was generally defined as ‘the breaking and entering of the dwelling Of another in the nighttime with intent to commit a felony.’ (Italics added.) (Perkins on Criminal Law (2d ed. 1969) p. 192.) The present burglary statute, Penal Code section 459 , provides in relevant part that ‘Every person who enters Any house, room, apartment *712 with intent to commit grand or petit larceny or any felony is guilty of burglary.’ (Italics added.)

Analysis

The court concluded that Gauze could not be guilty of burglarizing his own home because his entry, even for a felonious purpose, did not invade any possessory right of habitation. He had an absolute right to enter the apartment, and thus, the entry could not constitute burglary.

Applying the foregoing reasoning, we conclude that defendant cannot be guilty of burglarizing his own home. His entry into the apartment, even for a felonious purpose, invaded no possessory right of habitation; only the entry of an intruder could have done so. More importantly defendant had an absolute right to enter the apartment.

Conclusion

The court reversed the burglary conviction, affirming the conviction for assault with a deadly weapon.

For the foregoing reasons, we conclude defendant cannot be guilty of burglarizing his own home, and the judgment of conviction for burglary must therefore be reversed.

Who won?

Defendant prevailed on the burglary charge because the court found he could not be guilty of burglarizing his own home.

Defendant prevailed in the case because the court determined that he could not be guilty of burglarizing his own home.

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