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 VOLUME 11 - CHAPTER 252
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252.6 Consent, Actual

    252.6.6 Consent: Property Crimes

    252.6.6.1 Burglary: Defense Of Consent
    252.6.6.2 Theft: Consent As Defense

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 VOLUME 11 - CHAPTER 252

RATIONALE: Without an explanatory instruction the jury may not understand that consent is a defense to burglary if the owner or occupant giving consent knew of the defendant's felonious purpose.

POINTS AND AUTHORITIES: There are occasions when consent given by the owner or occupant of the property entered will constitute a defense to a burglary charge. (See generally Wharton’s Criminal Law (West, 15th ed. 1993) § 319, pp. 231-40.) One such occasion is when the accused is the owner or lawful occupant of the property. (See People v. Gauze (CA 1975) 15 C3d 709, 714 [125 CR 773]; see also People v. Felix (CA 1994) 23 CA4th 1385, 1397 [28 CR2d 860]; but see People v. Clayton (CA 1998) 65 CA4th 418, 422-23 [76 CR2d 536] [defendant given key by husband for purpose of killing wife constitutes burglary]; Wharton’s Criminal Law (West, 15th ed. 1993) § 319.)

    People v. Frye (CA 1998) 18 C4th 894, 954 [77 CR2d 25] concluded that the proper test is whether the defendant had "an unconditional possessory right to enter." (See also People v. Salemme (CA 1992) 2 CA4th 775, 779-81 [3 CR2d 398].) Hence, the jury must determine from the evidence whether, based either on consent or the personal property rights of the accused, the defendant had an unconditional possessory right to enter.

    Consent is also a defense when the owner or lawful occupant "actively invites the accused to enter, knowing the illegal, felonious intention in the mind of the invitee." [Citation.] [Emphasis in original.] (Felix, 23 CA4th at 1397-98.) However, the occupant's knowledge is crucial. "The occupant must know the person he is inviting into the home intends to interfere with his possessory rights; and the invitee must be able to show the occupant possesses this knowledge." (Felix, 23 CA4th at 1398.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

USE NOTE: Regardless of whether there actually was consent, the defendant's honest belief that he/she had consent should be a defense to burglary based on an intent to take property. (See Mills v. U.S. (DC Cir. 1955) 228 F2d 645 [no burglary if entry made with good faith belief that owner had consented to the entry and taking]; see also FORECITE National™ 101.1.4.1 [Good Faith Belief In Consent: General Principles].)

    See also FORECITE National™ 78.4.3 [Burglary: Defense Theory That Owner Or Occupant Cannot Commit Burglary Of His Or Her Own Property].

RESEARCH NOTES:

Annotation, Maintainability Of Burglary Charge, Where Entry Into Building Is Made With Consent, 58 ALR4th 335.

See also generally, FORECITE National™ 305.3.10 [Consent].

    A burglary is not committed when:

    i.  The defendant had an unconditional possessory right to enter the premises, or

    ii.  A person having an unconditional possessory right to enter the premises expressly invited the defendant to enter, knowing the felonious intention in the mind of the defendant.

    If you have a reasonable doubt as to whether [the defendant had an unconditional possessory right to enter the premises] [the owner or lawful occupant of the property consented to the defendant's entry with knowledge of the defendant's felonious purpose], you must give the defendant the benefit of that doubt and find [him] [her] not guilt of burglary.

[Source: FORECITE National™.]

    A burglary is not committed when:

    i.  The defendant had an honest belief [he] [she] had an unconditional possessory right to enter the premises, or

    ii.  The defendant had an honest belief that a person having an unconditional possessory right to enter the premises expressly invited the defendant to enter, knowing the felonious intention in the mind of the defendant.

    If you have a reasonable doubt as to whether [the defendant had an unconditional possessory right to enter the premises] [the owner or lawful occupant of the property consented to the defendant's entry with knowledge of the defendant's felonious purpose], you must give the defendant the benefit of that doubt and find [him] [her] not guilt of burglary.

[Source: FORECITE National™.]

    A burglary is not committed when a person having an unconditional possessory right to enter the premises expressly [consented to the defendant's entry] [consented to the defendant remaining in the premises] knowing the [larcenous] [felonious] intention in the mind of the defendant.

    If you have a reasonable doubt as to whether the owner or lawful occupant of the property consented to the defendant's entry with knowledge of the defendant's felonious purpose you must give the defendant the benefit of that doubt and find [him] [her] not guilty of burglary.

[Source: FORECITE National™.]

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 11 - CHAPTER 252

PRACTICE NOTE: "Consent is universally recognized as a defense to theft offenses. In some jurisdictions a lack of consent is an element of theft, while in others a consent defense is available because consent 'precludes the harm or evil sought to be prevented' by these offenses." (Robinson, Criminal Law Defenses (West, 1984) § 109(c) pp. 546-47.)

    See also FORECITE National™ 252.7 [Consent, Mistaken Belief].

RESEARCH NOTES:

See generally, FORECITE National™ 305.3.10 [Consent].