People v. Hung Hao Nguyen

Nguyen contends his conduct does not constitute burglary because the burglary laws are intended to protect against the “security of habitation or occupancy, rather than an offense against ownership or property” and here “[t]here was no home invasion or intrusion of the type sought to be prevented under the burglary laws.”

Nguyen’s argument is premised on rejecting a plain language interpretation of the burglary statute and instead applying a policy approach. Nguyen acknowledges if we adopt a plain language interpretation, as did the court in People v. Salemme (1992) 2 Cal.App.4th 775 [ 3 Cal.Rptr.2d 398 ], then we would affirm his conviction.

In Salemme, the court held the defendant committed burglary when he entered a home to sell the occupant fraudulent securities. Salemme began its analysis with a Supreme Court case from 1892, People v. Barry (1892) 94 Cal. 481 [ 29 P. 1026 ]. In Barry, the Supreme Court relied on a plain language interpretation of the burglary statute and held entry into a store, generally open to the public, with the intent to commit larceny constitutes burglary. The Barry court, after noting “common-law burglary and the statutory burglary of this state have but few elements in common” (id. at p. 482), stated: “[T]he language [of section 459] 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.)

The Salemme court noted, “For 83 years, this plain meaning applied: any entry with the intent to commit a felony [or theft] into any structure enumerated in section 459 constituted burglary regardless of the circumstances of the entry. [Citations.]” (People v. Salemme, supra, 2 Cal.App.4th 775 , 779.)

The Supreme Court further stated:

“ ‘Burglary laws are based primarily upon a recognition of the dangers to personal safety created by the usual burglary situation—the danger that the intruder will harm the occupants in attempting to perpetrate the intended crime or to escape and the danger that the occupants will in anger or panic react violently to the invasion, thereby inviting more violence. The laws are primarily designed, then, not to deter the trespass and the intended crime, which are prohibited by other laws, so much as to forestall the germination of a situation dangerous to personal safety.’ Section 459, in short, is aimed at the danger caused by the unauthorized entry itself.

“In contrast to the usual burglary situation, no danger arises from the mere entry of a person into his own home, no matter what his intent is.” (People v. Gauze, supra, 15 Cal.3d 709 , 715.)

The Salemme court also looked at the decision in People v. Superior Court (Granillo) (1988) 205 Cal.App.3d 1478 [ 253 Cal.Rptr. 316 ], which followed the Gauze decision. Granillo held a person who enters a structure with the intent to commit a felony cannot be convicted of burglary when invited in by the occupant who knows of and endorses the felonious intent. The Granillo court reasoned in such a situation, it cannot be said that the accused would have been refused admission at the threshold or ejected after entry on the basis he entertained an intent to commit a theft or felony since the occupant, having knowledge of the intent, admitted the accused and did not eject him. The Granillo court, as in Gauze, also noted that one of the purposes of California’s burglary law was to protect against the dangers to personal safety created by the “ ‘usual burglary situation.’ ” (Id. at p. 1483.)

Because the defendant in Salemme entered the home with a felonious intent and neither of the exceptions applied, the defendant could be convicted of burglary. The Salemme court rejected the argument the underlying offense must involve some threat of violence: “In effect, defendant would write into section 459 the requirement that the perpetrator must intend to commit a felony which poses a physical danger to the victim, rather than ‘any felony’ [or theft] as specified by the Legislature. This interpretation is not compelled by the purpose of the burglary statutes as discussed above and would constitute impermissible judicial legislation.” (People v. Salemme, supra, 2 Cal.App.4th 775 , 781-782.)

Nguyen argues Salemme was wrongly decided because it relied on the underlying purpose of the burglary statute as protecting a possessory right in property. Nguyen asserts the Supreme Court in Gauze held the purpose of California’s burglary laws is to protect against the dangers to personal safety created by the “usual burglary situation.” (People v. Gauze, supra, 15 Cal.3d 709 , 715.) Nguyen argues since his offense did not involve the dangers to personal safety created by the “usual burglary situation,” he should not have been convicted of burglary.

We find Nguyen’s argument unpersuasive. Gauze does not stand for the proposition that the burglary laws should only be applied to the “usual burglary situation"; Gauze addressed only the limited issue of a right to enter property and whether an individual could burglarize his own home. Gauze did not hold that the only purpose of the burglary laws was to protect the “security of habitation” or hold that a burglary conviction would be proper only if the victim were endangered by the “entry.” Gauze did not reach the issues presented here; it addressed only issues surrounding the possessory right to enter property, i.e., whether an entry occurs within the meaning of the burglary law when an individual enters property in which he has a possessory right.

We believe Salemme's reliance on a plain language interpretation of the burglary statute and rejection of an approach that the underlying offense

In 1993, the Supreme Court approved Salemme’s plain language interpretation approach to the burglary statute. The court stated: “Not uncommonly, courts must construe statutes in factual settings not contemplated by the enacting legislature. For example, in People v. Salemme (1992) 2 Cal.App.4th 775 [ 3 Cal.Rptr.2d 398 ], the court upheld a conviction of burglary when the felony the defendant entered the residence to commit was that of the fraudulent sale of securities. This scenario likely was not within the Legislature’s contemplation when it enacted Penal Code section 459. Nonetheless, the burglary statute, on its face, addressed the defendant’s conduct and was properly interpreted to apply to it.” (Johnson v. Calvert (1993) 5 Cal.4th 84 , 89 [ 19 Cal.Rptr.2d 494 , 851 P.2d 776 ], italics added.)

While the Supreme Court in this 1993 case was addressing a different issue (application of the Uniform Parentage Act) and therefore the statement is dicta, nonetheless we find it to be a persuasive endorsement of the Salemme decision and rejection of an argument that interpretation of section 459 should be limited by the purposes of the law served in the “usual burglary situation.”

A year later, the California Supreme Court expressly recognized there are multiple purposes underlying the burglary law. In People v. Montoya (1994) 7 Cal.4th 1027 , 1043 [ 31 Cal.Rptr.2d 128 , 874 P.2d 903 ], the court stated: “Although the decisions generally have emphasized [the] aspect of the danger to personal safety created by the offense of burglary, other authority, involving factual circumstances in which actual danger appears not to exist or is relatively minor, and relying upon the purpose of the statute to protect against an invasion of a possessory right, has concluded that the threat to property interests alone, created by the burglar’s entry and continued presence inside the structure, supports a finding of burglary. (People v. Salemme, supra, 2 Cal.App.4th 775 , 781-782 . . . .)”

In Montoya, the court held an individual could be convicted of aiding and abetting a burglary if he formed the intent to commit, facilitate or encourage commission of the offense while the perpetrator remained inside the structure. In reaching its conclusion, the Montoya court relied on dual purposes

Thus the Supreme Court has indicated its approval of the approach and the holding in the Salemme case.

Here, Nguyen entered the homes with the intent to commit a theft. He did not have an unconditional possessory right as the occupant to enter any of his victims’ homes. Nor was he invited in by the occupants with knowledge he had an intent to steal their property. Since Nguyen entered the victims’ homes with the requisite intent and no exceptions applied, he was properly convicted of burglary pursuant to the clear language of section 459.

Prosecutorial Misconduct

Nguyen contends the prosecutor committed misconduct by misstating the standard of reasonable doubt.

During closing argument, the prosecutor stated:

“The standard is reasonable doubt. That is the standard in every single criminal case. And the jails and prisons are full, ladies and gentlemen. [*]D It’s a very reachable standard that you use every day in your lives when you make important decisions, decisions about whether you want to get married, decisions that take your life at stake when you change lanes as you’re driving. If you have reasonable doubt that you’re going to get in a car accident, you don’t change lanes.

“So it’s a standard that you apply in your life. It’s a very high standard. And read that instruction, too. I won’t paraphrase it because it’s a very difficult instruction, but it’s not an unattainable standard. It’s the standard in every single criminal case.”

“Prosecutorial misconduct implies the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.” (People v. Strickland (1974) 11 Cal.3d 946 , 955 [ 114 Cal.Rptr. 632 , 523 P.2d 672 ].) To establish prosecutorial misconduct, it is not necessary to show the prosecutor acted in bad faith, but it is necessary to show the right to a fair trial was prejudiced. (People v. Bolton (1979) 23 Cal.3d 208 , 213-214 [ 152 Cal.Rptr.

141 , 589 P.2d 396 ].) If the defendant fails to object to the asserted misconduct and does not request an instruction or admonition to lessen any possible prejudice, then the asserted objection is thereby waived. (People v. Ghent (1987) 43 Cal.3d 739 , 762 [ 239 Cal.Rptr. 82 , 739 P.2d 1250 ].)

Nguyen has a valid point. The prosecutor’s argument that people apply a reasonable doubt standard “every day” and that it is the same standard people customarily use in deciding whether to change lanes trivializes the reasonable doubt standard. It is clear the almost reflexive decision to change lanes while driving is quite different from the reasonable doubt standard in a criminal case. The marriage example is also misleading since the decision to marry is often based on a standard far less than reasonable doubt, as reflected in statistics indicating 33 to 60 percent of all marriages end in divorce. (See Dyer, The Divorce Rate Isn’t What You Think, Dallas Morning News (May 6, 1995) p. 3C; Kasper, Marriage is Rougher Second Time Around, Kansas City Star (Sept. 18, 1995) p. E5; Epstein, Automation, E-Mail Encourage Isolation, S.F. Chronicle (Sept. 14, 1995) p. Al.)

As our Supreme Court stated over 120 years ago in People v. Brannon (1873) 47 Cal. 96 , 97: “The judgment of a reasonable man in the ordinary affairs of life, however important, is influenced and controlled by the preponderance of evidence. Juries are permitted and instructed to apply the same rule to the determination of civil actions involving rights of property only. But in the decision of a criminal case involving life or liberty, something further is required. . . . There must be in the minds of the jury an abiding conviction, to a moral certainty, of the truth of the charge, derived from a comparison and consideration of the evidence.”

We strongly disapprove of arguments suggesting the reasonable doubt standard is used in daily life to decide such questions as whether to change lanes or marry. The argument is improper even when the prosecutor, as here, also states the standard for reasonable doubt is “very high” and tells the jury to read the instructions. Had Nguyen objected to the prosecutor’s argument, the court surely would have sustained his objection and admonished the jury.

Nguyen, however, did not object. Since an objection here and admonition by the court would have cured the error, Nguyen waived the issue for appeal. Moreover, we conclude Nguyen was not prejudiced since the prosecutor did direct the jury to read the reasonable doubt instruction and the jury was