Section 1703 | CALCRIM (Jury Instructions)

commit (theft/ [or]
<insert one or more felonies>). The
defendant does not need to have actually committed (theft/ [or]
<insert one or more felonies>) as long as (he/she) entered
with the intent to do so. [The People do not have to prove that the
defendant actually committed (theft/ [or]
<insert one or
more felonies>).]
[Under the law of burglary, a person enters a building if some part of his
or her body [or some object under his or her control] penetrates the area
inside the building’s outer boundary.]
[A building’s outer boundary includes the area inside a window screen.]
[An attached balcony designed to be entered only from inside of a
private, residential apartment on the second or higher floor of a building
is inside a building’s outer boundary.]
[The People allege that the defendant intended to commit (theft/ [or]
<insert one or more felonies>). You may not find the
defendant guilty of burglary unless you all agree that (he/she) intended
to commit one of those crimes at the time of the entry. You do not all
have to agree on which one of those crimes (he/she) intended.]
New January 2006; Revised October 2010, February 2012, February 2013, August
2015
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
If the crime charged is shoplifting, give CALCRIM No. 1703, Shoplifting, instead
of this instruction.
When the People allege the defendant has a prior conviction for an offense listed in
Penal Code section 667(e)(2)(C)(iv) or for an offense requiring registration pursuant
to subdivision (c) of section 290, give CALCRIM No. 3100, Prior Conviction:
Nonbifurcated Trial or CALCRIM No. 3101, Prior Conviction: Bifurcated Trial.
If second degree burglary is the only possible degree of burglary that the jury may
return as their verdict, do not give CALCRIM No. 1701, Burglary: Degrees.
Although actual commission of the underlying theft or felony is not an element of
burglary (People v. Montoya (1994) 7 Cal.4th 1027, 1041–1042 [31 Cal.Rptr.2d 128,
874 P.2d 903]), the court has a sua sponte duty to instruct that the defendant must
have intended to commit a felony and has a sua sponte duty to define the elements
of the underlying felony. (People v. Smith (1978) 78 Cal.App.3d 698, 706 [144
Cal.Rptr. 330]; see also People v. Hughes (2002) 27 Cal.4th 287, 349 [116
Cal.Rptr.2d 401, 39 P.3d 432].) Give all appropriate instructions on theft or the
felony alleged.
CALCRIM No. 1700
BURGLARY AND RECEIVING STOLEN PROPERTY
1128

(2011) 196 Cal.App.4th 1296, 1308–1309 [128 Cal.Rptr.3d 255].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2015 Supp.) Crimes Against
Property, § 15.
CALCRIM No. 1703
BURGLARY AND RECEIVING STOLEN PROPERTY
1140